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Heard learned counsel for the petitioner; learned Government Pleader for Roads and Buildings appearing for respondent Nos.1, 2 and 4; and learned senior counsel for appearing for respondent No.3.

2. Petitioner and respondent No.3 along with others are bidders relating to a tender called for under e-procurement relating to the work i.e., Periodical Renewals to Burgampanad Eturunagaram Road from km 25/0 to 33/0 and 45/0 to 53/6 in Khammam District.

3. The specific case of the petitioner in the affidavit is that the said tender notification required all the bidders to invariably upload the scanned copies of DD/BG in e-procurement system and the same would be the primary requirement to consider the bid response. All the bidders were, therefore, required to carry out and upload all their documents seeking eligibility to offer the price bid and the technical evaluation was notified to be conducted solely based upon the uploaded certificates/documents etc., through e-procurement system. Petitioner states that he as well as all other bidders including respondent No.3 submitted their technical and price bids by uploading the documents in accordance with the tender notice. However, respondent No.3 did not upload all the documents with regard to availability of either owned or leased machinery for the purpose of mobilization advance of the key and critical equipment of the work stipulated.

Learned Assistant Government Pleader for Roads and Buildings seeks time to get instructions from respondents 1, 2 and 4.

Personal service to third respondent is permitted. List after one week in ML.

Pending further orders, the tenders, in question, as above, shall not be finalized.

6. Counters have since been filed by respondent Nos.2 and 3. I have heard all the learned counsel as noted above.

7. Learned counsel for the petitioner submits, on the basis of tender conditions, that submission of bids as well as uploading of documents was required to be under e-procurement platform as per the terms and conditions of the bid and he also brings to the notice of the court that clause 3 (iii) specifically states that department shall carry out technical evaluation solely basing upon uploaded certificates/ documents. Learned counsel also points out that the further clause under general terms and conditions require that bidders should submit the particulars invariably in the format specified in the tender schedule along with necessary certificates. Learned counsel submits that admittedly respondent No.3 has not submitted the documents on e-platform with regard to availability of old or leased machinery and key and critical equipments for the work but has physically produced the same, which was not permissible in view of the terms and conditions upon the tender.

8. Counter affidavit filed by respondent No.2 specifically states in paragraph 7 as follows:

7. I submit that the technical bids were evaluated based on uploaded documents and all the Bidders are qualified as all the Bidders have experience in execution of similar works and the extent of quantities of the items prescribed. The 3rd respondent and another Bidder Sri Md.Azeesz R/o.Khammam who have not uploaded the document in proof having batch mix plant 100-120 TPH have given a representation on 9-01-2015 (i.e., before opening of the price bids) along with original copy of declaration for procurement of 100-120TPH batch mix plant on RS.100/- non judicial stamp paper and sated that they have mistakenly not uploaded the machinery declaration while submission of bids and requested to consider their bids while evaluating. They assured on the stamp paper that they will procure the machinery subject to the work is awarded to them and submit the necessary documents in proof of procuring the same at the time of concluding agreement. The request of both 3rd respondent and another bidder has been considered and evaluation process is carried out. It is a fact that none of the Bidders who have participated in the tenders own this particular plant. Two Bidders viz., petitioner and another bidder indicated online to take this particular plant on lease and procure respectively and the respondent 3 (who is L1) and another bidder indicated to procure the plant offline.

9. It is evident from the above that on the representation of respondent No.3 dated 09.01.2015, he was permitted to submit the documents physically and though he has not uploaded the documents, his price bid was considered and evaluated as L1. Respondent No.3 also filed a separate counter where he states in paragraph 9, as follows:

... I further submit that I have complied all the basic necessary documents as per the e-procurement procedure for bid submission, except the declaration, which is ancillary in nature. I further submti that in similar circumstances, the Honble Apex Court held in 2006 6 SCC 315, that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same and further, whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. In the instant case also, I have fulfilled the requirements while submission of the bid and I have uploaded all the documents and certificates as per the requirements, except the undertaking, which is ancillary in nature and therefore, the authority who invited the tender, accepted my undertaking before opening of the price bid and the petitioner, at no point of time, objected for the same and therefore, the writ petition is not maintainable and the same is liable to be dismissed.