M/S V K A Constructions vs. The State Of Telangana And 25 Others
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The petitioner, Hyderabad Growth Corridor Limited (HGCL), filed a writ petition seeking a direction to the respondent authorities to consider its technical bid for a tender. HGCL had submitted acknowledgements of letters as proof of experience, but the tender conditions required experience certificates. The petitioner argued that these acknowledgements should be treated as certificates, subject to confirmation of values by the issuing authorities. The tender was floated by HGCL for the work of 'BT overlay of Bitumen pavement from Gachibowli to Shamshabad of Outer Ring Road, Hyderabad, Telangana'. The petitioner sought to have its technical bid evaluated only after the experience certificates were issued and considered, or after the values in the acknowledgements were confirmed.
Held
The High Court dismissed the writ petition, holding that the petitioner had not submitted the necessary documents as stipulated by the tender authority. The Court emphasized that the petitioner's technical bid had already been rejected for failing to submit the relevant documents within the stipulated time, as mandated by the tender notification. The Court cited several Supreme Court judgments, including Poddar Steel Corpn. v. Ganesh Engg. Works, Utkal Suppliers v. Maa Kanak Durga Enterprises, Kunwar Pal Singh v. State of U.P., and J & K Housing Board v. Kunwar Sanjay Krishan Kaull, to underscore the principle that when a statutory provision or tender condition prescribes a particular manner for doing an act, it must be done in that manner. The Court found no merit in the petitioner's argument that submitting acknowledgements should suffice, as this would amount to placing an ineligible person alongside qualified bidders. The Court reiterated that it cannot interfere with the tender process under Article 226 of the Constitution when the petitioner has demonstrably failed to comply with the essential conditions.
Key Issues
1. Whether the acknowledgements of letters submitted by the petitioner can be considered as experience certificates for the purpose of evaluating its technical bid in the tender for the 'BT overlay of Bitumen pavement from Gachibowli to Shamshabad of Outer Ring Road, Hyderabad, Telangana', as per the tender notification floated by Respondent No. 4 (HGCL)? Petitioner's contention: The petitioner argued that the acknowledgements of letters submitted by it should be treated as certificates issued by the respective respondents, subject to confirmation of the values of the parameters mentioned therein. They contended that if these acknowledgements were considered, and the values confirmed, no prejudice would be caused to other bidders, and their bid should be evaluated. Respondents' contention: The respondents, through the High Court's reasoning, implicitly argued that the tender conditions specifically required experience certificates, and the petitioner failed to submit these within the stipulated time. They relied on established legal principles that mandate adherence to tender conditions and the manner prescribed for doing a particular act.
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Cause title — parties, addresses and appearances
The Court made the following: ORDER Counsel for the Respondent Nos.7, 13, 14' 15, 16 & 17: SRI N' ASHOK KUMAR' SC FOR GHMC
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY WRIT PETITION No. 643? ol 2O2l ORDER: In this writ petition, the petitioner-M/ s. V K A Constructions, seeks a direction to the Chief General Manager (T), Hyderabad Growth Oorridor l.imitecl, rcspondent No.4 herein to consider the copies of the acknowledgements of the letters submitted by the petitioner as certificates issued by the respective respondents subject to confirmation oi the values of the parameters mentioned therein by thc respcctivc respondcnLs bcfore the date of opening of Price Bid for considering the Technical Bid of the petitioner firm in respect of tender Notification floated by the respondent No. 4 on e- procurement platform bearing No. 121/ CGM(The)/ DGM(T)- lll/HGCL/2O20-2 l, Tender lD 225334 for the work of .BY THE Overlay of Bitumen pavemcnt . for Gchibowli to Shamshabad of The case of the pr:t.itioner, in brief, is that for the work notified, the petitioner firm has made available the complete bid document mentioning the eligibility criteria, on the e-procurement platfrrrm on 27.O2,2O21 , lior a technical bid to be responsive, the bidder should have the crcdcntials to match the stipulations in the eligibiliry criteria and the bidder.should demonstrate the same with documentary evidcncc in the prescribed f<rrmats. According to the pctitioner firm, it mc<:Ls all tht: J 3 paramcters stipulated under the criteria for eligibility. I'[ou'cver, insofar as criteria at Serial No. 3, which requires that Quantity of DBM + BC execrtted in a Financial Year should be 41,907.330 Cum., although the petitioner firm has done the works for 45,900.60 I Cum, for the l"inancial Year 2015- 2016, the readily available certificates are for an extent of W P.No 6437 of 2021 28,407.242 Cum, and thus, there is a shortfall of 13,5O0.048 Cum, for which the petitioner firm had applied to respondent Nos. 6 to 26 for issuance of certificates for the works done in the Financial Year 2015-2016. According to the petitioner firm, once the certificates are issued by the respondend Nos. 6 to 26, it would meet the eligibility criteria mentioned at Serial No.
As per the Bid Document, the Technical Bid would be opened on 15.03.2021 at 3:30 p.m. and the date of opening of the price Bid would be announced later. Considering the same, this Court on 16.03.2021 directed the concerned respondents not to reject the petitioner's bid on the sole ground of its failure to furnish the relevant documents along with the Tender Document. Now, the only contention of the learned counsel for the petitioner is that since the petitioner firm is awaiting the certificates for the shortfall extent of 13,500.048 Cum, from the respondent Nos. 6 to 26 and since as per the Bid Document, the original documents have to be submitted only at the time of entering into an agreement, the filing of uploading certificates may be deferred till opening of price bid by taking into consideration the letters addressed by the petitioner to the respondent Nos. 6 to 26 for issuance of the certificates for the value of the works done by it. The iearned counsel submits that pursuant to the interim order granted by this Court on 16.0A.202I, the petitioner firm has already submitted all the necessary documents for the purpose of processing the Technical Bid, which has been acknowledged by the respondents concerned. In the counter filed by respondents No.2 to 4, it is contended that the petitioner did not submit the required documents as stipulated in the Tender Document; that as per the terms of the W.P.No 6437 of 2021 Tender Document, the petitionerthu" to necessarily submit all the relevant documents; thal as the petitioner did not submit all the relevant documents, its Technical ISid has already been rejected and therefore, submission of the documents after the cutoff date cannot be taken into consideration for the purpose of Price Bid. The learned Standing Counsel has further stated that till date' the Committee, for Proccssing the Ptice llid, is yet to be formed and till such time, the Price Bids u'oulcl not be opened According to the Iearned Standing Counscl' the Petltloner firm cannot make good the documents subscquent to fhe last date of submitting the bid documents and therelore' there cannot be any special concession in favour of the petitioner firm for submitting the documents after the cut-off date stipulated in thc Tender Document' In case any such request is entertained' the other similarly situated bidders would also seek the same concession and in such an event' the official 3 respondents will not be in a position to process the terms and conditions of Tender Document' case, the learned Standing Counsel has reiied on the decisions reported in Tata Cellular v' Union of Indial' Asia Foundation & Construction Ltd' v Trafalgar House Construction (I) Ltd'2' Narmada Bachao Andolan v. Union of India3, Jagdish Mandal v' State of Orissaa, Union of India v. J'D'suryavanshis' Bakshi Security & Personnel Services (P) (P) Ltd.6, Central Coalfields Ltd' Consortium)7 ' Montecarlo Ltd' the tender as Per To buttress her Ltd. v. Devkishan ComPuted v. SLL-SML (Joint Venture v. NTPC Ltd'8' Afcons '(i9g+) '\tggt) '(zooo o (2007 u (2ot t " 12oto ' 1zor6 6 SCC 65I 1 SCC 738 1o scc 664 14 scc 517 1 3 scc-t67 8 SCC446 8 scc 622
W.P.No 6437 of 202, Infrastructure Ltd. v. Nagpur Metro Rail CorPn. Ltd.e, JSW Infrastructure Ltd. v, Kaklnada Seaports Ltd.1o, and Municlpal Corpn., U$ain v. BVG India Ltdll. This Court, on 16.03.202 1 passed interim order directing the official respondents not to reject the technical bid of the petitioner on the ground of non-submission of the rele vant documents. Late r, I.A. No. 4 of 2021 is filed seeking vacation of the said interim orders. Since the arguments irre advanced touching the merits ol the writ petition, with the consent of both the parties, the main writ petition itself is disposed of at the admission stage. Heard the learned counsel for the petitioner, the learned Government Pleader for Municipal Administration & Urban Development for respondent No. l and Smt. D. Madhavi, the learned Standing Counsel for HMDA, on behalf of respondent Nos. 2 to 4. The petitioner firm has made applications before the respondent Nos. 6 to 26 for procuring the experience certificate and other relevant documents so as to enable the petitioner to submit the same before the respondent No.
However, the same were not supplied within the time stipulated under the Tender Document. One of.the main contentions raised by the learned counsel in the present writ petition is that since the petitioner could not secure the necessary Expericnce Certificate and other relevant documents before the last date for submission of the documents and that pursuant to the interim order grantecl by this Court, the petitioner has already submitted all the necessary documents, no 2016) 5 SCC 272 2016) 16 SCC 818 (2017) 4 SCC 170 (201a)5.scc 462 ( o( 1 W P.No.6437 ot 2o21 prcjudice u,oulcl be caused if the same are taken into consideration br:fore opening thc pricc bids. Per contra, the lcarned Counsel appearing on behalf of respondents No.2 to 4 has vehemently opposed for granting of any order and has prayed to vacate the interim order granted by this Court. Learned Counsel has stal.ed that the technicai bid of the pctjlioner rvas alrcadv rejcct.cd, and therefore, the question of considering the documents liled subsequent to the last date for submitting the tcnder documen ts cannot be taken into considerert.ion. A perusal o[ the tendcr notilication issued by the respondents shou,s that thc follorving documents are prescribed to be submitted alor-rg r,r,ith thc bid: II. xx-r Ul. Copy of GST Registration certificate and latest GST retums certiJicate of gouernment of Telangana. GS? Relurns shatt be for the preceding quafier i.e., three (3) nonths before the month of tendeing. N. Copy of lote,st hlcome To-t returfts i.e., for AY 2024-21 IFAMILY 2O1g 20) subnTitted lo IT Dept., olong with proof of its .submission. V. Satislactortlg contple'ted as o pnme contractor, similar works i.e., BY TLID Road Words of ualue not less than Rs.42,147,35,259/ - in ang one gear during the last 1O gears' W. Executed in anA one year, the follouing minimum quantities a works:- Item work Admittedly, the pctrtioncr could not submit some of the documents' lnsofar as lenclcr matters are concerned' the scope of intcrferencc bv Lhr: Courts in \Vrit I)clitlons liled under Article 226 oltheConstilutionoflr'rdiarsVCr.Vlimiled,moreSo,t'henthe petrtroner's techrlicill bjd l'r'Ls alread]' been rejected for not submitting thc doc:urti ttts as m:rtlclated by e-tender notification dated 27.O2.2O21 This (lourt as well as the Apex Court in Qta S.No. 41,907 Cum 1 Bituminous concr"te_1p8.!L --
W.P.N0.6437 of 20I number of judgments particular Procedure scrupulously followed' have : repeatedly held that wherever a is prescribed, the same has to be A Division Bench of this Court in W A'No 1595 of 2018' dated 06.72.2018, while upholding the ordcr of the learned Single Judge in W.P.No.39813 of 201'8, dated 20 11 2018' dismissed tl're Writ Appeal. The said writ petition was filed on the ground that the petitioner did not submit the Solvcncy Certificate in the prescribed form along with tender and therelore his Technical Bid was rejected. The Division Bench observed that it is aluay s insisted that the conditions stipulated in the tender document are strictly odhered to. In the case on harul, the petitioner, being a contractor, is regularlg doing business utith the Gouemment and is expected to know the presciibed form in u,,hich the soluencg certificate is appended to the bid doanment.......'lhe respondent has discretion and is entitled to reject a tender, iJ' not submitted as per the requirements of the tender document. In Montecarlo vs. NTPC Ltd. (supra), the Hon'bie Supreme Court held that where a deciiion is taken that is manifestly in consonance with the language of the tender d<;cument or sub- serves the purpose for which the tender is floated, the court should follow the principle of restraint. 'I'echnical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinarv instrumen t relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects lequiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.
7 AAR .1 W.P.No.6a37 ot 202i In Silppi Constructions Contractors V, Union of India and anotherl2, at para 20, the Hon,ble Supreme Court observed as unde r: '' 1zot91 SCC online sc I 133 't (1991) 3 scc 273 - 'o (2ooo) t r scc 548 "The essence ol te law larcl rjotun in the Jud_qments re\erred ty ablue_ is the exercise oJ. restraoi a,.rd ,aitioi; ti.-- reea 1* ou-enL,helmrrtg pnblic {n.terest to justtfu jud.iciat interuention in matters of contrad iruotung rhe state- insiimentalitie:s; ii""'"oui" "nouu grue. LUaA to the aputiotl of the expefts unless the decision is totalla arbitrary or unreosonable; the coutl does not sit tike a court of appeal ouer the oppropriate a thoritg; the court must realise that the authot'itA Jloattng tlrc tender is the best judge of its requtrements and, therefore, the courl's interkrence shirtld- be mtiimaL. The authoitA LDhich Jloots tLLe contract or tend.er, and. has authorecl the tender docunents is the best ludge as to how the d,ocuments heue to be interpreted. If tt o interpretations are possible then the interpretatioll of the author must be accepted.. The courts wiLI onlg interfere to preuent arb'itrariness, irrationalitg, bias, mala fi.d.es ir peruersity." "6. ... The requiretnerLls in a lender notice can be clqssl|ied into ttuo categone.s - rho-se u)hich laA down the essential condtttons of eligibility and tlp- othe,rs utltich are merelA ancillary or subsidiary uith the nTaut object 10 be achieued bg tlrc condition. In the first case the outhoit!.t i.s.sriirrgT lhe tende.r r.nall be required to enforce them rigidLg. In the otlrer cases il ntusf be open to the authontA to deutote from and nol fo irlsist upotl the stncl literal compliance of the condition in appropnate co.ses." In B.S.N.Joshi & Sons Ltd. v. Nair Coal Services Ltd14, the Hon'blc Suprcmc Court. hcld a1 para 66 as under "(i) if there are esse-ntial conditions, the same must be adhered to; (ii) If there is no power of general reloxation, ordinailg the same shc'll not be exercised and the pinciple of stict compliance tuould. be appLied wlrcre rt is posstble for all the parttes to complA LDith all such conditions futlg; (tii) if, howeuer, a deuiation is mqde in relation to all the parties in rega.rd io ang of sucll conditions, ordinailg agatn a power of relaxation mag be held to be eistitlg; (iu) thi parties who haue taken the benefit of such relaxqtton slaould. not ordinailA be aLLowed to tctke o different stand in rekttion to compliance Luith another part af teftder controct, parlic-ul.arlg uhen he wai also not it a position to complA with aLL the conditions of tender fuLtg, unless the Ciutl othent'ise finds relaxation of ,a condition which 'beiig essentiat in noture could not be relaxed qnd thus tle same uas tuholtg it I eg al cLnd u-titltoLtt lun rction; 1u)-when a c)ecision ts tclken bA the appropiate authoitA upon due consid.eratton of the tender document submitted bA atl the tenders in their orr, *",i1" and if it is ultimatelA found that successrful bidders had irr /acr .srrbsranti ally complted llith the purport and object ) In Poddar Steel Corpn. V. Ganesh Engg.Worksts, the Hon'ble Supreme Court at. para 6 held as under:
W P.No 6437 ot 202' for which essential condltiotts ute-re Lqid dotttn' the some maA not 'ordinarilu be inter|er"d wth" In Utkal Suppliers v' Maa Kanak Durga Enterprises and othersls, at para 15, the l{on'ble Supreme Court held as under: "This Court has repeatec)ly held thctt ytdtcial reuiew in these matters is--iqiiualent to judicial iestraint i1 these matters' What is ii.*"a is iot the decision itself but the ntanner in uhich it u'as ioa". fn" uit Cout't does not have the expeftise to correct such a."-i"-"" bU substituting its own deciston for the decision of the iiiioita. ini" ho'. cteily been held in the celebrated case of Tata C.tlut ir. union of Indta SISS! A SCC 651r, paragraph 94 of which stofes as rfolloLUs; "94, The principles detlucible front the aboue are: F) 'fhe modern trend. points to judicial restraint tn administratiue action. (2) The Court does not sit as a Court of appeat but merely reuierus the manner in which the decision was ntade. (3) The Courl d.oes not haue the expertse to correct the administratiue decision. lf a reuiew oJ tlle. adn'onistratiue decisiort is permitted, it u.till be substituting tts oLutl decision, ulthout the necessary experhse tuhich itself rrrug be JalbbLe. (4) The terms of the inuitction to tender cotTtlot be open to judicial scruting because the inuitetion to tetrder is tn the rea\nl of conttact. NormallA speaking, the decis'ion to accept the tender or audrd the contract is reached bg process of negotiations through seueral tiers. More often than not, such decision.s are made qualitatiuetg bg experts. (5) The Gouemment must haue freedont of contract. In other uord.s, a fanr plag in the joints ts a necessqry concomitant Jbr an administratiue bodg functioning in an cLdmtnistratiue sphere or quasi-adnlinistrqtiue sphere. Hotueuer, the decision must not onlA be tested bg the apphcation of Wednesbury pinciple of reasonableness (including its other facts pointed out aboue) but nust be free from arbitrainess not affect by bias or actuated bA mata fides. (6) Quashing decisions maA impose heaug adnintstratiue burden on the admtntstration artd lead to increLrsed and unbuclgetecl expenditure. " Admittedly, in the present case, the necessary documents stipulated by the authority have not been submitted by the petitioner herein. ln Kunwar Pal Singh v, State of U.p.r6, the Hon,ble Supreme Court while construing the thrce modes of publication, namely, (i) publication in the Official Gazetre, (ii) in two daily newspapers circulating in the locality, and (iii) causing public notice of the substance in the locality where the land is situate, provided under the Central Act, held at para 16 as under: 'u 1z02t1 ScC online SC 301 ' (2007) 5 SCC 84 W.P. No.6437 of 2021 "16. ... 'the pn .ciples ts we,ll setlled that Ll]here onA statutory prouision prouides cL pcLrtlcular manner Jor doing a particular act, then, that thing or act must be done in accordc.nce with the manner prescibed therefore in the Act " In J & K Housing Board v. Kunwar Sanjay Krishan Kaull7, at para 32, the HoIr ble Supreme Court observed as under: 'It is settled law that ihen ang statutory prouision prouides a particular matrner for doing o panliculor act, the so.id thing or act must be d.one kin ctccordance tl)ith the mantner prescibed therefore in the Act." The learned counsel for;the petitioner has argued that since the petitioner firm has submitted all the relevant documents pursuant to the interim order granted by this Court on 16'03'2021 no prejudice would be caused to any other bidders if the bid of the petitioner is taken into consideration for opening the price bids' Thesaidcontentioncannotbeacceptedasitwouldbeputtingan ineligible person along \^'ith the persons who aie already qualified in the technical bid. As on the date of opening of the technical bid, the petitioner was not qualified as he had not submitted the relevant documents as pcr his own admission' Under srmilar clrcumstances' as in the present case' this Court, by common order' aatecl O2'tl'2O2O' dismissed the W P' Nos.l0g2Sandll854of2o2oholdingthatnon.submissionofthe relevant documents within the stipulated time would render the N4oreover, in this case' the petitioner's already been rejected for not submitting the relevant documents within the stipulated time' as mandated by the tender notification' In vier.r' of the same' and keeping in view the law laid down by the Hon'ble Supreme Court' referred to supra' this Court sitting tenderer ineligible technical bid has " 12ot t1 lo scc 71'1
vv P l\o.o4j/ 0i zulr under Article 226 of lheConstitution of India cannot interfere with the said process and this Court does not find any merit in the present writ petition and the same is' accordingly' dismissed' Miscelianeous petitions pending in this writ petition' if any' shall stand closed' There shali be no order as to costs' ^'s'J"li'1,1'S\3'?'JJ @ //// sEcTloN OFFICER '"rH:filifrJ$il,"-"ffi ili!,**h'r:ur:'TJ::'l::l;:';'"' i a.ffiiE * :o'u'ur*x**lls'rueFlge'i#ffi .:,. CHR
6 VACATION COURT HIGH COURT DATED :1 3t0512021 ORDER W.P.No.6437 of 2021 DISMISSING THE WRIT PETITION WITHOUT COSTS )--"
Reproduced from the public record of the Telangana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.