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2022 DIGILAW 596 (AP)

Surya Kumari Agency v. State of Andhra Pradesh

2022-07-01

M.GANGA RAO

body2022
JUDGMENT M. Ganga Rao, J. - This writ petition under Article 226 of the Constitution of India is filed seeking the following relief/s: 2. Heard Sri N. Ravi Prasad, learned counsel for the petitioner, learned Assistant Government Pleader for Women & Child welfare appearing for the respondents 1 to 3 and Sri Ravi Teja Padiri, learned counsel appearing for the 4th respondent. 3. The facts, in brief, are respondents 2 & 3 issued a tender notification vide No. 1830963/A3/2020 on 24.01.2022 for supply of Food stocks to Buttayagudem, Jeelugumilli, Kukunuru, Veleiroadu, Chintalapadu, T. Narasaputram, Koyyalagudem, Polavaram Tribal & Schedule Mandals of 4 ICDS projects of West Godavari District for the year 2022-23 commencing from 01.02.2022 to 31.01.2023 under YSR Sampurna Poshana Plus. The last date for uploading tender schedule was 07.02.2022 upto 11:30 AM. The last date for submission of sealed tenders was 07.02.2022 upto 01:30 PM. The tenders would be opened in the office of 2nd respondent on 07.02.2022 at 04:00 PM. As per the tender notification, the successful bidder has to supply 6000 kits per month to Anganwadi Centers. Each kit consist of 2 Kgs of wheat flour, 1/2 Kg of Ragi flour, 1/2 Kg of dry dates, 1/2 Kg of Jaggery, 1/2 Kg of groundnut chekki. The petitioner, 4th respondent and some others participated in the tender. The petitioner and 4th respondent along with four others got qualified in technical bid. Alleging that on 10.02.2022 behind the back of the petitioner, financial bid was opened and even though petitioner quoted very less price of Rs. 297/- per kit whereas 4th respondent quoted Rs. 333/- per kit, and that the 3rd respondent is going to confirm the tender in favour of the 4th respondent, the present writ petition is filed. 4. Initially, this Court directed not to finalise the tender till 21.02.2022 and the said order is being extended from time to time. 5. The case of the petitioner is that it satisfied all the pre-requisites mentioned in Part-A of the tender schedule and also all the terms and conditions of the tender. The petitioner also furnished a refundable EMD of Rs. 1,00,000/- in favour of the 3rd respondent. For the same work, petitioner was successful bidder for the last year and it has discharged the same successfully without any complaint from anybody. The petitioner submitted sealed tender and also uploaded tender schedule on 07.02.2022 within time. The petitioner also furnished a refundable EMD of Rs. 1,00,000/- in favour of the 3rd respondent. For the same work, petitioner was successful bidder for the last year and it has discharged the same successfully without any complaint from anybody. The petitioner submitted sealed tender and also uploaded tender schedule on 07.02.2022 within time. About 9 members including the petitioner participated in the tender. In the technical bid only six members including the petitioner and the 4th respondent were qualified. On 10.02.2022 behind the back of the petitioner, financial bid was opened. Though the petitioner quoted very less price of Rs. 297/- per kit, the EMD of Rs. 1,00,000/- deposited by the petitioner was returned online and it was unofficially informed that the tender was confirmed in favour of the 4th respondent who quoted higher price of Rs. 333/- per kit. Instead of confirming the lowest tender, for the reasons best known, respondents No. 2 & 3 confirmed the tender in favour of the 4th respondent, who quoted higher price, due to political pressure, which is illegal and arbitrary. 6. 3rd respondent on her behalf and on behalf of respondents 1 & 2 filed counter-affidavit along with vacate stay petition. 4th respondent also filed its counter. 7. Learned counsel for the petitioner submits that the 3rd respondent is contending that the tender submitted by the petitioner was disqualified as the documents mentioned at serial numbers 2, 6, 8, to 10 of Part A of tender schedule were not furnished along with the tender. In fact, petitioner uploaded all the tender documents mentioned in tender condition serial numbers 2, 6, 8 to 10 of part A of tender schedule. After receiving the tender documents, the website will accept and issue acknowledgment. The petitioner also received email/online acknowledgement stating that the tender along with documents were submitted successfully. The petitioner is not served with any notice or order in writing rejecting the tender documents, which is violative of principles of natural justice. If the tender documents are not uploaded the website would not accept the same. On the other hand, respondents could have returned the defective tender documents of the petitioner. Having allowed the petitioner to participate in the financial bid and though the petitioner quoted Rs. 297/- per kit and 4th respondent quoted Rs. 333/- per kit thereby the Government is going to pay excess of Rs. On the other hand, respondents could have returned the defective tender documents of the petitioner. Having allowed the petitioner to participate in the financial bid and though the petitioner quoted Rs. 297/- per kit and 4th respondent quoted Rs. 333/- per kit thereby the Government is going to pay excess of Rs. 3,80,000/- per month but respondents 2 & 3 accepted the 4th respondent bid due to political pressures only. 8. Learned Assistant Government Pleader for 3rd respondent, while reiterating the contents of the counter, would contend that respondents 2 & 3 published the subject tender for supply of food stocks in Andhra Pradesh e procurement platform. As per the tender conditions, the intending bidder has to submit the bid through the website only. The petitioner was disqualified by the SNP committee in the tender process due to not fulfilling the following conditions with regard to eligibility criteria. 9. Point No. 2: Registration copy of manufacturing license if manufactures. (The petitioner trade license registration name is Lakkimetrti Ganesh Kumar vide Roc. No. 78303-2019-MZ the firm to carry on the trade operation of M/s. Milk Milk Products (Non eating/non medical establishments, Milk Curd, Butter etc.). Whereas the petitioner agency is Sri Surya Kumari Agency, Visakhapatnam. 10. Point No. 6: Petitioner Sri Surya Kumari Agencies, Visakhapatnam Income tax returns for last 3 years has not been submitted; only submitted 2019-20 and 2020-21. 11. Point No. 8: The party shall furnish authorization for participation in tenders on firms. The sale proprietor was not present. 12. Point No. 9: The party would have been supplier of any type of food commodities to Government departments from the last 2 years. The petitioner supplied only last one year. 13. Point No. 10: The party shall furnish the documentary evidence on all past experience and satisfactory performance from the competent authority. Petitioner has failed to submit past experience certificate by way of documentary evidence. 14. In view of the above, the SNP committee has disqualified the bid of the petitioner. The information will be furnished through the website only. No correspondence would be entertained on paper or outside the website. The question of intimating about the rejection of petitioner's bid by letter does not arise. Even the petitioner has not approached the authorities either by mail or post about reasons of disqualification. The information will be furnished through the website only. No correspondence would be entertained on paper or outside the website. The question of intimating about the rejection of petitioner's bid by letter does not arise. Even the petitioner has not approached the authorities either by mail or post about reasons of disqualification. The SNP committee has opened the financial bids of three bidders whose pre-qualification bids are accepted. The committee has decided to go for reverse tendering auction on 11.02.2022 at 03:00 PM to 06:00 PM. After closing the reverse tender, the 4th respondent stood as L1 bidder. Hence, the acceptance of the 4th respondent's tender does not suffer from any arbitrariness and illegality. 15. Learned counsel appearing for the 4th respondent submits that 4th respondent is the Central Government Employees Consumer Cooperative Society Limited popularly known as kendriya Bhandar was established in the year 1963 which is a registered society. It submitted its tender in response to the tender notification issued by the 3rd respondent. Its tender was accepted by the committee. In the reverse tender process three bidders participated and 4th respondent's bid was accepted as L1 as it quoted Rs. 333/- per kit. There is no arbitrariness in rejecting or disqualifying the petitioner's tender bid. The interpretation of the tender conditions and also verification of the tender documents and its validity and genuineness is only within the domain of the tender issuing authority but not in this Court. In support of his contentions, he relied on the decisions in NG Projects Ltd., v. Vinod Kumar Jain [ (2022) 6 SCC 127 ] and Special Leave to Appeal (c) Nos. 1616 of 2022 [Balaji Ventures Pvt. Ltd., v. Maharashtra State Power Generation Company Ltd. & Anr]. No bias can be attributed to the respondents. The petitioner failed to show any ground warranting interference by this Court in the tender process and finalization and selection of the 4th respondent's bid. 16. In the facts and circumstances of the case, submissions of the learned counsel and on perusal of the record, this Court found that pursuant to the subject tender notification, ten bidders participated in the tender process including the petitioner and the 4th respondent. Out of 10 bids submitted by the tenderers, the SNP committee has rejected seven bids including that of the petitioner. Out of 10 bids submitted by the tenderers, the SNP committee has rejected seven bids including that of the petitioner. The respondents contend that petitioner's bid was rejected as it has not uploaded the required documents at serial nos. 2, 6, 8, 9 & 10 of tender schedule Part-A, which deal with the registration copy of manufacturing license in case of manufacturers, income tax returns for the last three years, furnishing authorization for participation in tenders if the sale proprietor is not present, evidence with regard to supply of any type of food commodities to Government departments from the last two years, documentary evidence on past experience and satisfactory performance from the competent authority, which is denied by the petitioner stating that it had uploaded all the documents and after receiving all the documents only the website will accept and issue acknowledgment and that the petitioner, 4th respondent and four others were qualified in the technical bid but the tender is awarded to the 4th respondent. This Court is not in acceptance with the said submission of learned counsel for the petitioner since as per the counter filed by the 3rd respondent, out of ten bidders, seven bidders including the petitioner, were disqualified by the SNP committee due to non fulfillment of the tender conditions and only three bidders, i.e., the 4th respondent and two others were qualified for financial bid. Thereafter, the committee has decided to go for reverse tendering auction on 11.2.2022 and in the said reverse tendering, the 4th respondent having quoted Rs. 333.32 ps per kit stood as L1 bidder. The petitioner's bid came to be rejected at initial stage only and had not participated in the financial bid. Therefore, the contention of petitioner that though it quoted Rs. 297/- per kit the action of the respondent authorities in awarding the tender to the 4th respondent who quoted Rs. 333/- per kit is illegal and arbitrary cannot be countenanced for the reason that the petitioner has not participated in the financial bid and the 4th respondent who participated in the financial bid along with two others stood as L1 bidder. 333/- per kit is illegal and arbitrary cannot be countenanced for the reason that the petitioner has not participated in the financial bid and the 4th respondent who participated in the financial bid along with two others stood as L1 bidder. The further contention of petitioner that the petitioner was the successful bidder for the same work for the year 2021-22 and the very same documents were furnished for the tender called for the said year also and when the petitioner got all the documents for earlier year, it cannot be said that the petitioner failed to file very same documents for the present year cannot be countenanced as mere possession of the documents is not enough and the question is whether all the documents in tender schedule Part A are uploaded or not and the petitioner's tender came to be disqualified for non furnishing of the documents at Sl. Nos. 2, 6, 8 & 10 of tender schedule Part A. Therefore, this Court found that there is no arbitrariness or violation of the tender conditions in disqualifying the petitioner's bid and awarding the tender to the 4th respondent. The view of this Court is reinforced by the decision of this Court in Vasudeva Infra, rep. by its Authorized Signatory v/s Union of India, rep. by the General Manager South Central Railway & Others [ 2018(6) ALD 578 ]. The writ petition is devoid of merits and liable to be dismissed. 17. Accordingly, the Writ Petition is dismissed. No order as to costs. 18. Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.