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11. Sri Dhanumjaya, the learned Counsel representing M/s. Larson & Tubro Ltd., would report to this Court that M/s. Larson & Tubro Ltd., is not responding at all and hence the learned Counsel has no say in this matter.

12. In W.P. No. 8752/2006 it is stated that tenders were invited by using Tender Notice No. 1144/ONG/WSS/SST/G2/2003, dated 11-3-2003 by the respondent No. 2. It is also stated that on opening of the tenders on 31-3-2003 and in the light of the minutes of the Tender Committee meeting dated 7-4-2003 the respondent No. 1 informed that the tender of the petitioner for construction of 3850 Ml capacity Summer Storage Tank of Water, depth of 10.85 meters at Ongole with all ancillary works was accepted for Rs. 9,59,03,787-20 ps., at 4.2% less than the estimated value put to tender and thus as per the letter of acceptance the work is to be executed in 9 months and the contract is directed to be governed by the conditions of the contract as indicated in the tender documents. It is also stated that the Government in Irrigation & C.A.D. (PWCOD) Department issued orders providing for tender procedure and registration of Contractors Rules and these Rules, though issued in Irrigation & C.A.D. Department, yet these Rules are applied to all the Engineering Departments of the Government including the Public Health Department. It is further stated that in order to simplify adoption of the Government Orders issued in various G.Os., referred to in the Rules, the Government in supersession of such Rules, issued comprehensive order containing Rules and those Rules provided for tender procedure and registration of contractors and they are indicated in the Annexures annexed to the said G.O., and a copy of G.O. Ms. No. 94, Irrigation & C.A.D., dated 1-7-2003 along with its enclosures is filed in the material papers for ready reference as Annexure-B. It is also further stated that by these Rules, Clause 15 provides for the procedure for engaging of sub-contractors and to provide them the experience certificate and in other words Clause 15 seeks to provide for subletting by the prime contractors to the sub-contractors subject to certain conditions to the extent of subletting. It is further stated that it shall be added to the experience of the sub-contractor and to that extent the quantity of work executed would be deducted from that of the main contractor. It is also stated that once a prime contractor resorted to permitting subletting and a sub-contractor was permitted to execute the work, the Department is under obligation to issue experience certificate adding to the experience of the subcontractor while deducting to the same extent from the experience of the main contractor and thus under the Rules subletting is permissible and the Department can permit subletting resulting in measuring the works executed by the sub-contractor as a matter of execution by the main contractor and the main contractor to that extent, as per records, is under obligation to pay the amount due and payable to the subcontractor as per the terms and conditions of the agreement. It is further stated that in the instant case, the petitioner had the benefit of subletting and executed the work in terms of the contract entered into between the respondents Nos. 2 and 3 and respondent No. 4 main contractor. It is also further stated that in pursuant to mis contract, the respondent No. 4, being the main contractor, permitted the petitioner to execute the work and the authorities also permitted the work executed by the petitioner to be measured for the purpose of payment to the respondent No. 4 main contractor and ultimately the respondent No. 4 on receipt of monies from the respondents Nos. 2 and 3 paid the amount due and payable to the sub-contractor viz., the petitioner. It is also stated that there has been no dispute about the execution or about the payments due and payable to the petitioner. It is also stated that having executed the work by way of subletting, the petitioner having been entitled to claim for issuance of experience certificate, applied for experience certificate. It is also stated that the respondent authorities also issued the experience certificate in the light of the work order issued by the respondent No. 4 to the petitioner. It is further stated that it is by virtue of the letter dated 5-5-2003 the respondent No. 4 entrusted the work for execution to the petitioner by way of subletting for a value of Rs. 8,70,83,536-00 and this work is to be completed during the period commencing from 2-5-2003 to 23-1-2004 and this is by an order No. 4001, dated 2-5-2003 issued on 5-5-2003. It is also stated that this work later was also revised to a tune of Rs. 9,40,41,395-00 and there is no dispute about the amounts paid. Further it is stated that basing upon the work orders, the petitioner executed the work and the bills as claimed by the petitioner are paid from time to time by respondent No. 4 and in fact, reflecting these facts, the Senior Manager of respondent No. 4 by name Mr. Vijay Kumar, L&T Ltd., Mehdipatnam, Hyderabad furnished the information to Hindustan Constructions, Mumbai on their request and it is the one contemporaneous piece of evidence emanated from L&T at the request of Hindustan Construction Corporation, Mumbai. It is also stated that this information as furnished by the Hindustan Constructions Corporation clearly manifests that this petitioner has worked as a sub-contractor for execution of the work and there is no adverse remark against the petitioner. It is further stated that such information was solicited by Hindustan Constructions Corporation in the light of certain work to be entrusted with the petitioner and in fact those facts are nothing to do with the disputes under consideration. It is also averred that while so, after completion of the execution of the work entrusted with the petitioner, the petitioner requested for issuance of experience certificate in the light of the provisions contained in Clause 15 of the Annexure annexed to G.O. Ms. No. 94 and after considerable correspondence and in the light of Clause 15 of G.O. Ms. No. 94 and under the directions of respondent No. 2 to respondent No. 3, respondent No. 3 issued the experience certificate and such certificates subsequently at the instance of respondent No. 4 had been cancelled without any notice to the petitioner. Further it is stated that in the light of the experience in execution of work, the petitioner having become qualified and eligible to seek works by way of tender, has offered his tender in respect of one work i.e., Construction of Bheemavaram Summer Storage Tank, Public Health Department. It is also stated that instead of relying upon the certificate held by the petitioner and instead of awarding the work to the petitioner, respondent No. 4 raised a querry as to the right of the respondents to issue the experience certificate and on that ground the petitioner was required to extend the EMD (Bank Guarantee) from time to time for finalization of the tenders which are kept pending. It is further stated that the petitioner has nothing to raise any issue out of the tenders which are not finalized in respect of the said work viz., Bheemavaram Summer Storage Tank. It is also further stated that respondent No. 4 having felt that the petitioner had been filing the tenders directly instead of getting the works by way of subletting from the respondent No. 4, disputed the correctness of the experience certificate by writing a letter to the 1st respondent and the 1st respondent forwarded the said letter to the 2nd respondent. It is also stated that ultimately in the light of the internal correspondence received from the superior authorities to the subordinate authorities, the respondent No. 3 cancelled the experience certificate issued to the petitioner. Further specific stand is taken that the writ petition is maintainable since the petitioner is questioning only the arbitrary and illegal action of Rule 3 in cancelling the experience certificate issued to the petitioner earlier. In Grounds 1 to 5, certain additional facts had been averred.

14. Several of the work orders and the details relating to the writ petitioner and certain bills and further correspondence in this regard also had been placed before this Court.

15. In the counter-affidavit filed by respondents No. l to 3, respondent No. 3 had sworn to the affidavit and had denied all the material allegations except those which had been specifically admitted. It is averred in Para 3 of the counter-affidavit the principal contractor of aforesaid work is M/s. Larsen & Toubro Ltd., ECC Division, Hyderabad i.e., respondent No. 4 and in their letter No. L&T, ECCD, HYRO:WET:4001, dated 29-3-2006 addressed to the Engineer-in-Chief, Public Health, Hyderabad i.e., respondent No. 1 and informed that they have not given any official subletting to M/s. M. Venkata Subbaiah, or any other contractor in writing to the Department and also requested to issue the experience certificate on Larsen & Toubro, ECC Division's name mentioning all the executed quantities and values by cancelling the experience certificate issued by respondent No. 3 to the petitioner. It is also stated that based on that, the respondent No. 2 had issued instructed to respondent No. 3 to cancel the experience certificate dated 28-6-2005. It is further stated that in view of the directions of the respondent No. 2 and as per Para 15 of G.O. Ms. No. 94, I & C.A.D. (PW.COD) Department dated 1-7-2003, the 50% of the experience certificate in respect of the above work issued by the respondent No. 3 has been cancelled and orders were communicated to the petitioner and the 2nd respondent had also stated vide letter dated 17-12-2005 that only Tender Accepting Authority is competent authority for approving the sub-contractor. It is also stated that the tenders were invited for the above work by Rule 2 and lowest tender was accepted by the respondent No. 1 in favour of M/s. Larsen & Toubro Ltd., ECC Division, Hyderabad - respondent No. 4 as per the minutes of the Tender Committee meeting held on 7-4-2003 but not in favour of the petitioner as stated in the affidavit vide letter No. 5998/T4/ONG (W)/Vol.XIII/2003, dated 24-4-2003 of respondent No. l for Rs. 9,59,03,787.20 i.e., 4.20% less and agreement was concluded by 2nd respondent with respondent No. 4 vide Agreement No. 20/2003-2004 dated 12-6-2003. Further specific stand is taken that in streamlining of tender system, the Government had issued G.O. Ms. No. 94, I & C.A.D. (PW.COD) Department dated 1-7-2003 and it is a fact to the provisions of the G.O. had been implemented by the Public Health Engineering Department also. It is also further stated that in this case, the principal contractor was M/s. Larsen & Toubro Ltd., ECC Division, Hyderabad. It is also stated that the petitioner had executed the work on behalf of the principal contractor only as poer the work order issued by respondent No. 4 and while executing the work, the petitioner had represented the Superintending Engineer, Public Health, Nellore submitting consent letter i.e., work order given by the prime contractor entrusting the above work to a tune of Rs. 8,70,83,536/- vide letter No. NIL dated 5-5-2003 and requested the Superintending Engineer, Public Health, Nellore - respondent No. 2 to issue the experience certificate as per the provisions of Clause 15 of G.O.Ms. No. 94, which had been already referred to supra. It is further stated that based on the request made by the petitioner, the respondent No. 2 had accepted the consent letter of the No. 4 given to the petitioner and issued proceedings under intimation to the respondent No. 4, permitting the petitioner as per G.O. Ms. No. 94 to get 50% value of the works and its quantities of the above work from the prime contractor - respondent No. 4. Further it is stated that it was also advised by the respondent No. 2 to the sublet contractor to contact R.3 to obtain the experience certificate accordingly after completion of the above work, and the prime contractor M/s. Larsen & Toubro Ltd., Hyderabad is held responsible for completion of the above work as per the terms and conditions of the agreement. Even though the respondent No. 4 was informed of the above facts, no objections were raised by them at that time and in view of the same, R.2 had issued instructions to R.3 to issue experience certificate to the petitioner on behalf of R.4 with quantities executed as per the provisions laid down in Para 15 of the Annexure G.O. Ms. No. 94, I & C.A.D. (PW.COD) Department dated 1-7-2003, vide respondent No. 3 Memo No. 1144/Ongole/WSIS/2nd SS tank/DB/D2/2003, dated 7-11-2003 and in obedience of the instructions issued by the respondent No. 2, the respondent No. 3 had issued 50% of the experience certificate duly noting the executed quantities and its values on 28-6-2005 and the same was counter signed by R.2. It is further stated that the principal contractor of the aforesaid work - R.4 in their letter No. L&T, ECCD HYDO:WET:4001, dated 29-3-2006 addressed to the Engineer-in-Chief, Public Health, Hyderabad -respondent No. 1 informed that they had not given any official subletting to M/s. M. Venkata Subbaiah or any other contractor in writing to the Department and also requested to issue the experience certificate on M/s. Larsen & Toubro Ltd., ECC Division's name mentioning all the executed quantities and values by cancelling the experience certificate issued by respondent No. 3 to the petitioner. Based on that, R.2 had issued instructions to R.3 to cancel the experience certificate dated 28-6-2005 and in view of the directions of the respondent No. 2 and as per Para 15 of G.O. Ms. No. 94, referred to supra, the 50% of the experience certificate in respect of the above work issued by R.3 had been cancelled and orders were communicated to the petitioner and R.4 in letter No. Ong/2n SS tank/DB/D1/2006/263 M, dated 6-4-2006. Thus the specific stand taken that the experience certificate issued by R.3 was cancelled in view of the objections raised by R.4 in letter dated 29-3-2006 to R.1 with a copy the R.2 and R.3 and on instructions of R.2 to R.3, R.3 cancelled the certificate and as per Clause 15 of G.O. Ms. No. 94, referred to above, and clarification given by COT vide letter No. COT/EEI/DEEI/T5/Tender Clar/2005, dated 17-12-2005.

16. In W.P. No. 19044/2006 apart from the Engineer-in-Chief, Major Irrigation and the Superintending Engineer, Irrigation Circle, Ramalingapuram, Nellore, the 3rd respondent also was impleaded. The rejection of the technical bid and refusal to open the price bid resulting in selection of the 3rd respondent had been called in question on certain grounds by the writ petitioner. It is stated that by unreasonable and irrational rejection of the petitioner's technical bid, the 2nd respondent acted in contravention of the principles indicated by the Government in their G.O. Ms. No. 94, Irrigation & C.A.D. (PW-COD) Department. It is stated that the said action of R.1 and R.2 is opposed not only to the principles of natural justice but it is also opposed to the orders passed by this Court in W.P.M.P. No. l 1143/2006 in W.P. No. 8752/2006. It is stated that the tenders were invited by way of e-procurement in I & C.A.D. Department through the 2nd respondent in respect of three works viz., (1) Formation of right side flood bank of Mamidi Kalva from Chain 0.00 meters to 1200 meters near Gollapalem (v) in Ozili Mandal of Nellore District for an estimated contract value of Rs. 77,97,580/-; (2) Mamidi Kalva Flood Bank from 0.00 metres to 1600 meters near Papireddy Kandrika in Ozili Mandal of Nellore District for an estimated contract value of Rs. 1,28,37,226/-; and (3) Mamidi Kalva Flood Bank near Graddagunta from 0.00 meters to 1200 meters for an estimated value of Rs. 62,57,187/- and all the three works are under common IFB No. 3/2006-2007 dated 24-5-2006. It is also stated that in all the three matters the period within which the work is to be completed is 6 months and form of contract is stated to be LS (lumpsum) and the procurement is on the basis of open bidding type. It is further stated that every tenderer is to offer bid security if the authorities specified therein by way of drawing Bank Guarantee in favour of such authority. It is also further stated that in all the three works, bid document down loading starts from 12-6-2006 at 5.00 p.m., and down loading ending to be at 5.00 p.m., on 26-6-2006 and the last date and time was notified to be 27-6-2006 at 3.00 p.m., and the technical bid opening date was notified as 28-6-2006 at 11.00 a.m., and the price bid opening was also notified to be 3-7-2006 and thus the dates are specified and schedule is notified in respect of the tender notifications, yet the schedule could not be carried out in the context of intervention of elections to the local authorities. It is also stated that as a result, the technical bid opening took place only at the end of 2nd week of August, 2006 and thereafter the price bid opening also took place on 8-9-2006. It is also stated that when the technical bids are opening, the petitioner was found to have been not qualified and his technical bid was rejected and as a result on having rejected the other bidder's technical bid also, the 1st and 2nd respondents found the respondent No. 3 was the only tenderer qualified and eligible to get the price bid opened. It is further stated that on opening the price bid of the only available tenderer viz., the 3rd respondent, the official respondents appears to have approved the tender of the 3rd respondent. It is also further stated that on the whole there are only 3 bidders including the petitioner. It is also stated that the other bidder Mr. Ramesh was also found not qualified and the petitioner was found to have not satisfied the criteria of experience. It is further stated that the experience certificate filed by the petitioner was considered to have been not eligible to satisfy the criteria prescribed. It is also further stated that the qualification criteria is prescribed in G.O. Ms. No. 94, specified above, and in order to qualify for award of contract, each bidder should have experience of having completed similar works of value not less than 50% of the estimated value of the contract in any one year in a period of preceding 5 financial years and he must have executed in any one year the minimum quantities of work referred to in Clause (b) of qualification criteria. Para 11 of the G.O. refers to the bid capacity and Para 15 of the said G.O., provides for experience certificate to be obtained by those contractors who discharged the execution of work as sub-contractors under a prime contractor in whose name the work was awarded. It is also stated that a person to whom a work is awarded is known as prime contractor and the person who executes such awarded work of the prime contractor is known as sub-contractor, but it has to be entrusted only with such person having required experience satisfying the criteria for the execution of works. It is stated that, that is how the officials will have to approve on their satisfaction as to the capability of the execution of the work in question by the sub-contractor and the sub-contractor may be by himself a registered contractor and he may be otherwise entitled to be entrusted with the work by way of prime contractor. It is further stated that the experience gained is sought to be distributed amongst the prime contractor in whose name the work was awarded and the other contractor who executed the work successfully as a subcontractor. It is further stated that in this context 50% of the contract value can be executed by a sub-contractor with the approval of the Government and to that extent the prime contractor is not entitled to add to his experience of that quantity of work executed by the sub-contractor and such quantity shall not exceed 50% of total estimated value of the contract in question and thus the experience gained by the sub-contractor is that of the prime contractor and the prime contractor is deprived of 50% of the experience criteria and it is allowed to be transferred to another contractor who acted as subcontractor under the prime contractor. It is also further stated that thus the subcontractor gains experience with reference to the approval of the sub-contract which was allowed to be executed by the subcontractor on behalf of the prime contractor and this is the legal position. It is also stated that while so, in respect of Tender Notice No. 1144/ONG/WSS/SST/G2/2003, dated 11-3-2003 issued by the Superintending Engineer, Public Health, Nellore, M/s. Larson & Tubro Ltd., (L&T Ltd.) was awarded the work and the said work was entrusted with the petitioner by way of sub-contract and that was the construction of 3850 ML capacity Summer Storage of Water of Depth 10.85 meters at Ongole with all ancillary works. It is further stated that the expected contract value was Rs. 9,59,03,787-20 at 4.20% less than the estimated value put to tender and this work was also to be executed in 9 months and thus the L&T Ltd., permitted the petitioner by way of subletting to execute the work. It is stated that orders were issued by the concerned Superintending Engineer, Public Health, Nellore in his proceedings No. 1144/ONG/WSS/SST/DB/D2/2003, dated 11-11-2003 and thus the petitioner was permitted to get the 50% of the value of works and its quantities from the prime contractor. It is also stated that the petitioner was directed to contact the Executive Engineer, Public Health, Nellore, to obtain experience certificate accordingly after completion of the above work. It is further stated that on the request of the petitioner, the Superintending Engineer concerned had issued the experience certificate in the light of Para 15 of the G.O. Ms. No. 94, I & C.A.D., dated 1-7-2003. Proceedings No. 1144/ONG/W.S.S./S.S.Tank/DB/D2/2003, dated 11-11-2003 reads as hereunder:

Further it is stated in Para 9 that as per the Qualification Criteria stipulated in Clause No. 1.3 A (a) of the Tender Notice and Information To Bidders (Page No. 10 of Tender Schedule) "To qualify for award of the contract, each bidder in the same name and style should have good experience in execution as Original Agency in similar works in the State and Central Government Undertakings during the last five financial years from 2001-02 to 2005-06. It is also further stated that under Clause 1.3 A (a) "Satisfactorily completed, as a Prime Contractor, similar works of value (given for each work separately), but, from the experience certificate, it is evident that the work was entrusted to M/s. Larsen & Toubro Ltd., Hyderabad on tender basis and hence the Prime Contractor is M/s. Larsen & Toubro Ltd., Hyderabad only and therefore, the petitioner had failed to satisfy this condition as he had not executed the work as a PRIME CONTRACTOR. It is also further stated that under Clause No. l.3(C) of the Tender Notice and Information to Bidders (Page No. 11 of Tender Schedule), "the Sub-Contractor's/G.P.A. Holder's experience shall not be taken into account in determining the bidder's qualification criteria and therefore, the petitioner's experience certificate cannot be valid for this purpose also and hence, under the above two parameters, the petitioner had not satisfied the stipulated conditions and thus he was not qualified and his tender was not considered for the next stage i.e., Financial Bid. Further specific stand is taken that as per the procedure laid down in the tender schedule, the petitioner was disqualified and therefore, the action of the Department in not qualifying the Tender of the petitioner is as per the Tender conditions. It is also further stated in Para 12 of the counter-affidavit that a report was submitted to the Commissioner of Tenders, Hyderabad vide Office letter No. DB/ATO 3/Mamidikalva/1079 M, dated 26-8-2006 seeking the clarification on the validity of the Experience Certificate submitted by the petitioner along with his tenders and the Commissioner of Tenders in their letter No. COT/EE 1/DE 1/T 5/Tender Clar/2006, dated 30-8-2006 informed that: