M/S. Sv Infratech Engineers PVT. LTD vs. The State Of Telangana

The Court made the following: ORDER

HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No. 19516 OF 2023 ORDER: The Present Writ Petition is filed to declare the action of Respondents 2, 3, 4 and 5 in selecting the 6firespondent as the successful bidder in the tender issued uide NIT.No e-o3/2o23-24lSE/STAGE-II/BTPS/D.No.78122-23 dated 1a.O4.2023 for the work "Preventive/ Periodical Maintenance Works on Mills for t}:e FY 2023-24 in Bowl Mills of Unit IV BTPS"and entering into an agreement with the 6h respondent and issuing a work order in his favour, as illegal, arbitrary, malaftde, unreasonable, unconstitutional and against the principles of natural justice.

4 offrcials have refused to provide copies of contract and work order to petitioner. Having exhausted a1l the possible remedies available, he was constrained to file this Writ Petition

5 in time between Mars Engineering & Erectors and Mars Engineers & Enterprises clearly demonstrates that experience enjoyed by the prior partnership hrm cannot at all be invoked by the 66 respondent after a lapse of over 6 years. The 66 respondent left behind such works in 2016 itself and undertook several financial enterprises in Khammam which have turned out to be unsuccessful. Therefore, learned counsel contends that the 66 respondent has now cleverly colluded with the Shrespondent in tweaking the tender conditions to his favour and achieving the tender by submitting documents that are old, outdated and irrelevant. Learned counsel further attributes that collusion has already become public knowledge among all existing contractors in the region and each of them is severely troubled and aggrieved by the said mala fide action of Respondents 5 and 6. Therefore, for this reason alone, selection of the 6s respondent for the said work concerning Unit IV, Bowl Mills, BTPS is completely unsustainable. karned counsel further submits that NIT requires bidders to submit several documents, some of which are statutory in nature such as GST and EPF registrations. However, the 6h respondent submitted documents for Mars Engineering & Enterprises from October, 2022 only such as GST registration on 16.1O.2022, EPF registration on \

6 20.1O.2022, trSIC registration on 20.1O.2022, Udyam registration on 76.10.2022 and labour license on 21.IO.2022 to enable collusion between Respondents S and 6. Similarty, tender document also requires bidders to submit Income Tax Returns and the 6ftrespondent submitted the said returns in his individual name i.e., Srinivasa Rao Maddula and not in the name of Mars Engineering & Enterprises which is un-surprising since the said entity did not even exist for the previous three years. Further, even in his individual name, the returns do not disclose any amounts whatsoever attributable to the kind of work required to be done under the NIT. The meagre amounts existing in the said retLrrns pertain only to rental income and land proceeds. This too shows that Mars trngineering & Enterprise has no commercial history or relevance whatsoever for the 6erespondent to be selected in the tender for the work of "Preventive/ Periodicai Maintenance Works on Mills for the Fy 2023-24". Learned counsel further submits that most tender documen ts usually require bidders to have executed similar works for the past 3 years, Similarly, even the NIT dated 14.04.2023 also requires under Clause 2 (I)(l) in Section II that bidder would have to submit "Copies of previous work orders for similar works/ Certificate showing minimum 3 years experience \-- ,/ \- ,/ I

7 in TSGENCO in similar type of work on any one of bowl mills (XRP1043, XRP943, XRP903), self-declaration of releva,nt technical skills, etc.". Petitioner contends that there is no way in which Mars Engineering & Enterprises would have been able to submit such experience for the past 3 years when il had been in existence only from October 2022. Moreover, the work experience details submitted by the 6mrespondent were of over six years ago. Therefore, there is no way in which Mars Engineering & Enterprises would have qualified under the said NIT. In addition to this, the official respondents have most illegally and arbitrarily issued a corrigendum to NIT modifying Clause 2(I)(1) in Section II to say that "Copies of previous work orders for similar works/ Certihcate showing experience in similar type ot work on any XRP bowl mills in TSGENCO, self- declaration of relevant technical skills, etc." Petitioner highly suspects that the said corrigendum was brought about only after the 6fr respondent submitted his documentation and it was realised that Mars Engineering experience. This has been done to benefit and favour the 66.espondent to the disadvantage of every other bidder that had participated. According the learned counsel, the said corrigendum is also violative of Clause 2a(\ at page no. 4 of NIT which states that "TSGENCO reserves the right to amend or modify the tender and its conditions on or 8 before schedule closing date and time, under intimation to the tenderers."

t0 Learned counsel therefore, submits that it is settled law in contractual matters, the State or "other authorities" are bound to act within the legal limits and their actions are required to be free from arbitrariness and favouritism. The procedure adopted by the State in awarding contracts can be Judged and tested against Article 14 and this Hon'ble Court's intervention is necessary when the relevant considerations are ignored and / or taken into account or when tender process involves arbitrariness or favouritism. Learned counsel in support of their contentions relied upon the following judgments:

ll any relief and approached this Court by suppressing the factual / material objects, hence, Writ Petition needs to be dismissed ab initio. Further, petitioner filed this Petition by creatrng a concocted story only with an intention to harass the respondents without having any legal right. l,earned Standing Counsel would submit that the 2"d respondent issued tender notification for the work of " Preventive / Periodicai maintenance works on Mills for the lrnancial year 2023-24" (Annual maintenance works of Mills), but not for EPC works in Unit-lV of BTPS, as alleged. Total 6 bidders participated in the said tender. He vehemently contends that mandatory documents mentioned in tender Notihcation are for the purpose of support but not for qualihcation criteria since nature of tender invited is limited single stage commercial bid for which no pre-qualihcation .is required. Same fact is known to petitioner as he mentioned the same in para 3 of his afhdavit. As such, the allegations levelled against the answering Respondents that they have not issued any reply to the letter dated O3.06.2023 wh,erein he informed that the documents submitted by the 6t'respondent are misleading, deceptive and inconsonant and also the 6frrespondent is not eligible because the Firm owned by the 6h respondent is having sole Proprietorship. It is pertinent to mention that petitioner himself \ .d',.'-

12 has knowledge that the nature of tender is only a limited one and no pre-qualification is required. Further, it is submitted that Clause No.2 of Section-ll titled "Special tender conditions" in NIT dated 18.04.2023 which was issued on e-procurement platform uide tender ID 4O874O, dated 28.04.2023 and the same was amended by the corrigendum on O1.05.2023. In the said Notification and in the corrigendum as well, it was not stipulated to upload the experience for 2O2O-21, 2021-22 and 2022-23 but contained placeholder to upload the previous experience document/documents. Further it is submitted that either any hrm or individual contractors could participate in the tendering process. There are no constraints for individual contractors to participate in the bidding process. These facts are evident lrom the documents submitted by petitioner himseif before this Court as such Writ Petition shall be dismissed in limini. Learned Standing Counsel further submits that after receiving letter dated 30.06.2023, the 2nd respondent internally enquired about the allegations raised by petitioner and after knowing the factual aspects, advised them to follow the procedure of tender in accordance with the notification issued thereof. It is not true that the ofhcial respondents have given several assurances to petitioner whenever he approached them, except the letters mentioned he never approached any of the t

13 respondents personally. It is further submitted that the office cannot provide copies of award of work to other firms which are not L1 . The allegations raised in the afhdavit are only for the purpose of filing the present frivolous Writ Petition, as such the same may be dismissed ab-inito. Learned Standing Counsel would submit that nature of tender is only Limited Tender (Single Part Bid) i.e., price bid only, no past experience is required but only who quotes the lowest price such bidder would become the L1. Since the 6u respondent quoted far lesser amount than petitioner, he had become the successful bidder. He would further submit that income tax clearance certificate is either required from the firm or individual contractor. The 6fr respondent submitted Income tax return for the financial year 2022-23 and commercial history of the tenderer is not the criterion in finalizing Iowest bidder. He would further submit that as per TSGENCO Standard general terms and conditions, tenderer should have experience in executing similar type of work, at least once in the last 6 financia,l years including present financial year. In this regard, it is to submit that corrigendum dated 0 1 .05.2023 was issued to the original NIT dated La.O4.2O23(e-Tender Id.4O8740 dt. 2a.O4.2023) wherein similar experience in any type of bowl mills was informed to be \ "/r' \

t4 considered. In fact, corrigendum was issued in the interest of the organization. It is to submit that NIT d1g.04.2023 was published on e-procurement platform on 28.O4.2O23(Friday) 01.05.2023(Monday) As per the tender was published on document "TSGENCO reserves the right to amend or modify the tender and its conditions on or before schedule closing date, under intimation to the tenderers,'. The corrigendum was delivered to all the limited tender agencies including petitioner on e-procurement above corrigendum competition among platform, Government of Telangana. The was issued for better participation and the agencies to protect the interests of submit that had the and corrigendum without any delay or pre-determination would TSGtrNCO. Learned counsel corrigendum was not issued, 03.06.2023. The even petitioner was also not eligible to participate in the said Tender since he had only 2 consecutive years of maintenance experience. It is submitted that petitioner misrepresented regarding letters mentioned in para 15 of the affidavit fiied by him. Either the 4tl respondent or Respondents 5 and T have never issued Lr. No. SE/E&M_II/Stg- I/BPS/F.Doc/D.No.30t/2022 dated 08.Os.2023, Lr. No. SE/E&M-II/Stg-t/BpS/F.D oc/D.No.S2O /2022 dated above letters were issued by the office of l5 Superintending Engineer / Stage-l/ BTPS/ Manuguru which are no way connected to the present Petition. Petitioner has dragged the 2nd respondent into this petition without any basis. The long association of petitioner with the 2.d respondent is not the criterion for awarding work on competitive bids to petitioner. The 4ft respondent carried out tendering of NIT No.e-02/2023- 24/SE/Stage-ll for Unit-III mill works and not for Unit-l & Unit- II. Tendering authority and tender numbers are misrepresented by petitioner to mislead this court. Learned Standing Counsel would submit that contention of petitioner that authorities acted out of legal limits and arbitrarily and shown favouritism is totally denied and there is no violation of Article 14 of the Indian Constitution and the entire process of tendering is performed legally and without any arbitrary or not against the principles of natural justice. Petitioner filed the present Wilt Petition with a mala fide intention and with an ill-motive without having proper reason. The answering respondents have acted in accordance with law and the lowest price bidder was awarded the work as per the terms and conditions of said tender notification. The tendering process was conducted on e-Procurement platform (as per Central Vigilance Commission guidelines) and in a transparent way. The official respondeirts have adhered to the organization -\ -/

t6 rules and procedures, and acted with a bona fide, rational and legitimate way in the tendering process. The provisional service work order dated 16.O6.2023 was issued to Ll tenderer M/s Mars Engineers and Enterprises. Subsequently, M/s Mars Engineers and Enterprises started maintenance works on Mills from the same date. Learned counsel would further submit that petitioner unnecessarily, mounted undue pressure upon the answering respondents and used to visit very frequently. The petitioner tried to get undue favouritism to him to get the benefit of awarding the works in an illegal manner. Since, tendering process is lawful, no higher authorities have shown any favouritism. Petitioner levelled frivolous and baseless allegations against ofhcial Respondents, who acted legitimately during the tender process. Lastly, learned Standing Counsel would submit that petitioner had approached this Court by suppressing all material facts with ill-intention to harass the respondents, as such, Writ Petition shall be dismissed imposing exemplary costs on petitioner who not only wasted precious judicial hours but also harassed the respondents so far, in all aspects. Learned counsel would also submit that since this Court has not granted aly interim stay with respect to awarding work respondent finished 807o of work so far. I I and the 6e t;i ... i

t7

18 participate in a tender. Learned counsel submits that petitioner has not only sent multiple representations to the officiai respondents; such as ot 03.06.2023 and 30.06.2023, but also visited the offices of the respondents on several dates ie. on 12.05.2023, 19.O5.2O23, 24.O5.2O23, 21.06.2023, erc. Ail such details have been tabulated and elaborated in para No. 1g of the affidavit filed by petitioner. In any case, even if it is hypothetically agreed without prejudice that petitioner has not visited the offices of respondents, the counter affidavit still does not explain why not a single representation issued by petitioner is disposed of. If such is the case, it is inexplicable why NIT dated 18.04.2O23 even requires the bidders to submit papers relating to their prior experience concerning the works in question. This very submission of respondents that no past experience is required shows the grave nature of collusion and mala fide action in favour of the 6fi respondent. The same is the case with the Respondents, submission that commercial history of bidders is irrelevant. Such a statement is made in the counter only because the 6ft respondent,s proprietorship has no commercial history whatsoever and that it has only been floated recently in October 2022 to enable collusion between the Sft I and tle 6ft respondents. The countering respondents have most iilegally and arbitrarily issued a corrigendum to NIT modifying I a 19 Clause 2(II)(1) in Section II to say that "Copies of previous work orders for similar works/ Certificate showing experience in similar type of work on any XRP bowl mills in TSGENCO, self- declaration of relevart technical skills, etc." This has been done oniy since it was realised that Mars Engineering & Enterprises would not qualify for lacking the requisite experience and to benefit and favour the 6h respondent to the disadvantage of every other bidder that had participated. Petitioner has been executing simiiar works every year in the past several years and therefore, the countering respondents' statement that even petitioner would be ineligible is baseless, unreasonable and absurd. Except stating that principles of natural justice were followed, respondents do not explain how the 6ft respondent can use the experience of an earlier firm that has ceased operations and has become dormant Iong ago. Therefore, the said respondents' action of issuing the provisional service work order dated 16.06.2023 is completely illegal and arbitrary.

Hence learned counsel submits that petitioner has approached this Court in fair manner by stating all the facts.

20 similar work experience which is in the name of MARS ENGINEERS AND ENTERPRISES and four more work orders of Mars Engineering and Erectors. As one work order copy which is in the name of MARS ENGINEERS AND ENTERpRISES is enough to satisfy the terms and conditions. Learned counsel submits that there were three bidders 6e respondent, petitioner and another by name Foster power Engineers and Erectors in bidding. Petitioner quoted 5%o less where as 6ft respondent had quoted lowest rates with 36% less than the estimated value and stood L1, as such became successful bidder. Thereafter, the official respondents asked for further negotiation of rates and also for clarifrcation for uploading work orders of Mars Engineering and Erectors even though it is irrelevant, and for payment of additional security deposit as per procedure. Learned counsel submits that being a sole proprietor of Mars Engineers and Enterprises, he approached the ofhce and submitted D.D. drawn for Additional Security Deposit and also letter clarifying that 6th respondent was the managing partner of erstwhile firm MARS ENGINEERING AND trRECTORS along with the partnership deed, declaration of retirement of other partner in which the other partner has given.NOC,to utilize the whole experience of the firm to aly business in the same sector run by the 6th respondent. a- '/ 1 t a tl ..i t

2t Learned counsel would further submit that after verifying the documents uploaded by the 6tn respondent's firm, he came to know that they have taken legal opinion at their SLA on the issue, thereafter the 4ftrespondent issued provisional work order to the 6fr respondent on 16.06.2023 to start the work, as it had fulfilled all requisites of NIT and quoted 367o less than the estimated rates ald stood L1. Lea-rned counsel would further submit that petitioner intentionally and intelligently highlighting the NIT terms and conditions before corrigendum to mislead this Court in the same manner as higher officials of TSGENCO and failed so far. It is submitted that as per final NIT terms and conditions, contractor should upload "copies of previous work orders for similar works/ certificates showing experience in similar type of work on any of XRP bowl mills in TSGENCO". The 6fr respondent uploaded document which is in the name and style of MARS ENGINEERS AND ENTERPRISES and showing similar type of experience and this satisfies the said clause. Hence, the 4firespondent considered the offer given by 6ft respondent and proceeded further. He submits that the 6h respondent is the sole proprietor for MARS ENGINEERS AND ENTERPRISES and managing partner of erstwhile partnership Iirm MARS trNGINEERING AND ERECTORS which carried out number of works in APGENCO and TRANSCO for the past two

22 decades up to the satisfaction of held engineers and acquired lots of experience in carrying out the similar nature of works and the 6ff respondent is carrying out crucial works which are critical than the subject works in XRp_ 943 BOWL MILLS in BTPS at present as sole proprietor in the name and style of MARS ENGINEERS AND ENTERPRISES. By considering the past experience and present status of sole proprietary firm, the sole proprietor of MARS ENGINEERS AND ENTERPRISES can be entitled to utilize past experience of erstwhile hrm in tendering process as per above-referred construes and there is no need of experience in the same name as the bidding firm as held by the Hon'ble Supreme Court in New Horizon Ltd.. Vs. Unlon of Indta and also various judgments of other High Courts. Hence, it is evident that the 6h respondent being the sole proprietor of MARS ENGINEERS AND ENTERPRISES is liable to use past experience of erstwhile partnership firm MARS ENGINEERING AND ERECTORS as the 66 respondent acted as Manag.ing Partner and involved in day to day business activities and all other technical, administrative, commercial activities on behalf of the erstwhile firm as is evident'through Clause Nos. 10, 11, 12 of partnership deed and also considering .NOC,given by the other partner to use experience gained by the firm for ,.* partners 23 any business in this sector run by them as there are only two Learned counsel would further submit that the allegations of petitioner about non-existent commercial history and irrelevant tax returns submitted are baseless and there is no need of exercise to check the commercial history as nowhere the NIT terms and conditions demand it and aiso the work which is called for tender is purely labour-oriented and all the required special T & P, consumables and spares will be supplied by TSGENCO free of cost as per Clauses 6l & 62 of general terms and conditions of NIT bid documents. It is further submitted that it is foolish allegation raised by petitioner with his lack of knowledge as no sole proprietary firm possesses separate PAN card number, IT returns, but it is the self PAN number and IT returns of proprietor which will be considered for such sale proprietary firm. It is submitted that petitioner is trying to blame the 6ftrespondent without knowing ail the facts as stated above for which he should be prosecuted under law. He would further submit that petitioner alleging that no notice was sent regarding amendment through corrigendum is false and trying to place the blame on the respondents on baseless grounds. Corrigendum issued in e-procurement platform in which NIT No.e-03 is published, and on the same moment all 24 the bidders who were invited to participate, will get corrigendum information as alert message through phone and through registered e-mail and the same is visible in the e_procurement platform against this tender, rather than this no separate notice will be issued to any bidder in e-procurement system (as per the clauses 2.2 and l2.l of schedule-l of NIT document). It is submitted that from the above, it is evident that petitioner is trying at every moment to blame the respondents on unreasonable grounds which is leading to make impact on tendering authorities. It is completely conflict nature of petitioner as making the allegations recurrently without having sufficient knowledge about the e-tendering system. He would further submit that petitioner is raising the allegation unnecessarily regarding corrigendum as "This has been done to beneht and favour of 6drrespondent,, in paral4 of writ affidavit and the same is completely false and baseless. It is very clear that tendering authorit5r has right to modify/amend the conditions as per Clause 2a @) &, (b) of summery sheet of bid document. If petitioner has any objection regarding tender conditions, he has to mention in the statement of deviations, in the absence of which it w.ill be construed that tenderer accepted all terms and conditions as per tender specification as per Ciause 2.4 of schedule -1 of bid document. petitioner had manv {

r t 25 ways to represent his objections regarding terms and condiLions before submission of tender, but he submitted his bid by accepting all the terms and conditions of NIT without any deviations duly signed on relevant bid documents (schedule -III) and became unsuccessful in bidding, then started to raise the allegations regarding tender conditions as they are modified by the tendering authorities to make favour to me, on baseless and unethical grounds which is completely false and unfair. With the facts revealed above, it is clearly evident that petitioner raised allegations regarding the above only in frustration due to unsuccessful in bidding, the same is invented for the purpose of this Writ Petition. In continuation to the above, learned counsel submits that if the eligibility criteria before the corrigendum exists without modification, petitioner's firm and the other one might not be qualified as they are having the similar type of experience particularly in ISGENCO ( as mentioned in the NIT conditions) for only one or two years, petitioner's hrm is having the similar type of experience in TSGENCO for only two years and petitioner furnished that " has been executing similar works every year in the past several years". In counter petition in para no. 1O will not meet the eligibility which states that three years experience in TSGENCO and there is no substantial proof submitted for the same. In other words, the 6th respondent \

26 would be eligible by using the experience gained as the Managing Partner of erstwhile partnership firm. The facts revealed above disclose the intention of petitioner in framing a false story around the imagined situations to rnake favourable to him on unethical grounds in Writ petition which is liable to be dismissed on this ground alone. lt is argued that under the facts and circumstances explained above, it is clear that official respondents have not made any favouritism or benelit to the 6r respondent, as alleged by petitioner In the Writ Petition, there is no public interest and not any substantial proofs for the allegations made regarding mala fides and arbitraries except grudge on ofhcial and unoflicial respondents and the rivalry with the 6m respondent as a competitor, hence the petition is not maintainable as per law.

.,.; 2l 2016-17, therefore significant loss of experiential contribution had occurred. It is a settled law that the new ltrm or entity must be a complete takeover of previous firm along with its assets and Iiabilities and no experiential contribution of the erstwhile {'irm must be lost or left behind on its transition. The 6ffrespondent sought clarifrcation with respect to uploading the experience certihcates of M/s Mars Engineers and Erectors in the name of M/s Mars Engineers and Enterprises is concocted, false and miserably suffers from lack of substantiation. The validity of experience certificates of M/s Mars trngineers and Enterprises is very much relevant as the same were dated back to 2Ol7 whereas the work experience mandated by the NIT must be prevalent between the years 2021-2022. The 6threspondent is intentionally denying the fact which is a matter of public record. The complete absence of even a single material paper to substantiate their stand clearly portrays the viciousness of the 66respondent's aspersions. As far as consideration of experience is concerned, the 6erespondent is deliberately silent about their inactivity since 20 17 for more than 5 years and tacitly trying to hide behind the veneer of inapplicable and unrelated judgments. Now after silence of more than 5 years during sans any experience whatsoever, the respondent cannot be allowed to seek cover under alleged experience dating back to 28 2017. Further, M/s Mars Engineer and Enterprises lacks any commercial history whatsoever and the hrm has been floated to enable collusion with 4n respondent. It is submitted that original NITs for bowl mills required in clause No 27(b) that ,,the contractor shali furnish their copy of pAN Card and copy of latest income tax returns for a period of 3 years i.e., From 2019- 20 along with proof of receipts failing which their e-tender will be summarily rejected. " There is no way in which the 6ftrespondent would have been able to submit such documents so the respondents have most arbitrarily issued a corrigendum to the NITs modifying the said clause and reducing the stipulated 3 years period to 1 year period i.e., 2O2l_22. Further, another corrigendum was issued to NIT modifying Clause 2(I)(1) in Section II to say that "Copies of previous work orders for Similar works/Certil-rcate showing experience in similar type of work on any XRP bowl mills in TSGENCO, self_declaration of relevant technical skills, etc.', This has been done only since it was realised that Mars Engineering & Enterprises would not qualify for lacking the requisite experience. petitioner realised these factors at the later stage and such an illegal coltusion could not be contemplated prior to issue of corrigendum but the action preceding the corrigendum clearly shows that this has been done to benefit and favour the 6tn respondent. The 6ff 1 u ( ':,t .,1

29 respondent is taking every foul opportunity to escape answering as to how he could claim the experience of a firm that ceased to exist 5 years ago and has no connect whatsoever with the Mars Engineering and Enterprises.

30 by the 6srespondent are misleading, deceptive and inconsonant and also the 6mrespondent is not eligible becausc the Firm owned by them is having sole proprietorship. It is pertinent to mention that petitioner himself has knowledge that nature of tender is only a limited one and no pre-qualification is required. Further, it is submitted that Clause2 of Section_ll titled ,,Special tender conditions" in NIT dated 19.04.2Cl23 which was issued on e-procurement platform uide tender ID 4Og740, dated 28.04.2023 and the same was amended by the corrigendum on 01.05.2023. In the said Tender Notification and in the corrigendum as vrell, it was not stipulated to upload the but contained experience experience for 2O2O-21, 2O2l-22 and, 2022_23 document/documents. Further it is submitted that either any firm or individual contractors could participate in the tendering process. There are no constraints for individual contractors to participate in the bidding process. These facts are evident from the documents submitted by petitioner himself before this Court. That after receiving the letter dated 30.06.2O23, the 2nd respondent internally enquired about the allegations raised by petitioner and after knowing the factual aspects, advised the ofhcers to foliow the procedure of tender in accordance with the notifrcation issued. .a placeholder to upload the previous {. (

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32 corrigendum was delivered to all the limited tender agencies including petitioner on e-procurement platform, Government of Telangana. The above corrigendum was issued for better participation and competition among the agencies to protect the terests of TSGENCO. It is an admitted fact thathad the endum was not issued, even petitioner was also not le to participate in the said Tender since he had only 2 utive years of maintenance experience. As rightly contended by the learned counsel for ts2 to 5, long association of petitioner with ndent is not the criterion for awarding work on bids. The 4th respondent has carried out tendering -O2 /2023-24 /SE/ Stage-II for Unit-lll mill works and & Unit-ll. The tendering authority and the tender misrepresented by petitioner to mislead this court on of petitioner that authorities acted out of legal ey are acting arbitrarily and shown favouritism be accepted in the background of vivid facts the record. The official respondents have acted lvith law and the lowest price bidder was awarded r terms and conditions of notification. The sswas conducted on e-Procurement platform (as Iance Commission guidelines) and in a ./ ."" .

JJ transparent way. The ofhcial respondents adhered to the organization rules and procedures and acted with a bona fide, rational and legitimate way in the tendering process. The provisional service work order dated 16.06.2023 was issued to Ll tenderer M/s Mars Engineers and Enterprises. Subsequently, M/ s Mars Engineers and Enterprises started maintenance works on Mills from the same date. The 6fr respondent is the sole proprietor for MARS ENGINEERS AND ENTERPRISES and managing partner of erstwhile partnership firm MARS ENGINEERING AND ERECTORS which carried out number of works in APGENCO and TRANSCO for the past two decades up to the satisfaction of field engineers and acquired lots of experience in carrying out the similar nature of works and also been carrying out crucial works which are critical than the subject works in XRP- 943 BOWL MILLS in BTPS at present as sole proprietor in the name and style of MARS ENGINEERS AND ENTERPRISES. By considering the past experience and present status of sole proprietary hrm, the sole proprietor of MARS ENGINEERS AND ENTERPRISES can be entitled to utilize past experience of erstwhile firm in tendering process as per above referred construes and there is no need of experience in the same narne as the bidding firm as held by the Hon'ble Supreme Court in Neu; Horizon Ltd. Vs. Unlon oJ Indla.

34 the Supreme Court had held at para 25 as under:

"

36 since the tendering process is lawful, no higher authorities have shown any favouritism to the 6ft respondent. petitioner has levelled frivolous and baseless allegations against the official respondents who acted legitimately during the tender process and petitioner had approached the Court by suppressing all material facts with ill-intention to harass the respondents. It is borne out by record that since this Court has not granted any interim stay with respect to awarding of work, so far, the 6fi respondent had finished 80% of work and at this juncture, interference of this Court in any manner is unwarranted and the same is also countenanced by the decision in AL G.projects Limited(s:upra), wherein the Hon'ble Supreme Court at paras 16 to 23 held as under: [i6] In Gala;ry Transport Agencies v. New J.K. Roadways,202oSCCOnlineSC 1O35 a three-judge bench again reiterated that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-gulssed by a court in judicial review proceedings. It was observed "1 thr", "

37 the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in JagdishMandal v. State of Orissa, 2007 14 SCC 517, this Court noted:

"

38 The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be noi to hnd fault with mag:nifying glass in its hands, rather the Court should examine as to whether the decision_making process is after complying with the procedure contemplated by the tender condrtions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala f,lde manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. ihe injunction or interference in the tender teads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, hrsfly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."

gl i, 39

40 r:ot mala fide or intended to favour someone and the decision made by oflicial responCents is by acting reasonably and in accordance with conditions stipulated in the Tender Document,

therefore the decisions cited by the counsel for the petitioner are not applicable to the facts of the present case. l9

In the result the Writ Petition is dismissed. No order as to costs.

HIGH COURT DATED:0510212024 ORDER WP.No.19516 of 2023 DISMISSING THE WRIT PETITION WITHOUT COSTS g *{* 5a" Jo 01 ilAf 2i?1 -.-i.: C.S ri,:r. i ..:'. i