THE HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.32492 of 2014 Dated : 29.10.2014 Between:
M/s. KMC Constructions Ltd., having its Registered office at 1-80/40/SP/58-65, Shilpa Homes Layout, Gachibowli, Hyderabad, Rep., by its Authorized Signatory and Chief Executive Officer, Rajesh S. Udupa S/o.Late Dr.K.Venkat Raman, Aged about 44 yrs, R/o.Hyderabad.
.. Petitioner And State of Andhra Pradesh, Roads & Buildings Department (NH-Wing) Rep., by its Secretary, Hyderabad & 4 others .. Respondents This Court made the following :
THE HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.32492 of 2014 ORDER :
By a letter dated 20.10.2014 the petitioner was informed that the Screening Committee meeting was held on 09.10.2014 holding that the petitioner’s tender was non- responsive. Aggrieved thereby this writ petition is instituted.
2. A tender notification was issued by the 3rd respondent for construction of work relating to paved shoulders from KM 15/0 to KM 56/0 of Chittoor- Kurnool Road, NH-18 (New NH-40) through Engineering, Procurement and Construction (EPC) basis contract. The petitioner being one of the companies engaged in the business of construction has submitted its bid. The original bid documents were opened on 28.07.2014 and the technical bids were opened on 31.07.2014. The bid of the petitioner and another person was pre-qualified by the Evaluation Committee in its meeting held on 14.08.2014. The Screening Committee in its meeting held on 09.10.2014 has not considered the tender submitted by petitioner as valid. All the relevant facts were placed before the Screening Committee. The decision of the Screening Committee dated 09.10.2014 is communicated to the petitioner through letter dated 20.10.2014.
3. Learned counsel for the petitioner submits that the petitioner was executing civil work in the State of Sikkim. The Government of Sikkim passed orders on 03.02.2014 holding that the petitioner has not performed the work satisfactorily which is entrusted to him and debarred him from participating in future tenders in the State of Sikkim. The order of Government of Sikkim was assailed in W.P.No.28 of 2014 before the Hon’ble High Court of Sikkim. By an order dated 12.06.2014 the Hon’ble High Court of Sikkim granted liberty to the petitioner to file a review before the competent authority and it is further ordered that in pursuant to any notice inviting tender, if the petitioner submits its tender, the same should not be rejected because of the impugned order dated 03.02.2014.
4. Learned Counsel, therefore, submits that in view of the above order of the Hon’ble High Court of Sikkim, in the bid document in the relevant column the petitioner has not stated in positive terms about debarment since the order of debarment is suspended by the Hon’ble High Court of Sikkim. He, therefore, contends that the rejection of the tender document submitted by the petitioner on the ground that the petitioner has not disclosed the order of debarment passed by the Government of Sikkim, was illegal. Learned counsel further submits that as evident from the minutes of the Screening Committee, in similar circumstances, the other officers of the respondents, considered the bid document without raising any objection and therefore, taking the same objection at this stage is illegal. Learned counsel refers to the dissenting note of one of the members of the Screening Committee in support of his contention.
5. As seen from the material on record, admittedly, the petitioner has not disclosed in the relevant column about the order passed by the Government of Sikkim debarring the petitioner from participating in future contracts. Furnishing of such information is relevant for the purpose of the employer to assess the suitability and competence of the contractor to execute a work, which is proposed for entrustment. The past background of the contractor is a relevant factor. These civil contracts are time bound and if there are any lapses on the part of the contractor in executing the work, it would add to the escalation of costs and causes inconvenience to the public, which is against the public interest. Therefore, while evaluating the tender document, the employer is entitled to take into consideration the past performance, irrespective of the offer given by the contractor and even in case the person happens to be the lowest bidder, it is permissible for the competent authority to reject the tender on the basis of unsatisfactory past performance. Thus, furnishing of such information is necessary for such evaluation.
6. Apparently, by the time the petitioner submitted its tender document, the Government of Sikkim issued orders debarring the petitioner. Though there was an order of suspension, these facts ought to have been stated in the bid document in the relevant column provided for furnishing information. Even otherwise, petitioner ought to have given his own explanation or enclosed relevant document in support of his claim of what transpired in state of Sikkim so that while evaluating the tender document, the Screening Committee would have assessed the issue and come to a correct conclusion. Fact remains that the petitioner has not disclosed the fact of debarment by the Government of Sikkim.
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7. As held by the Supreme Court in Tata Cellular vs. Union of India , interference of the writ Court in matters concerning awarding of contracts is very limited. The writ Court is required to see whether decision making authority exceeded his powers, committed an error of law, reached a decision which no reasonable tribunal would have reached; there is illegality, irrationality and procedural impropriety. The writ Court should intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker.
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8. In Air India Ltd. vs. Cochin International Airport Ltd. , Supreme Court held that in arriving at a commercial decision considerations, which are paramount are commercial considerations.
9. In Michigan Rubber (India) Limited vs. State of Karnataka and [3] others , Supreme Court held that greater latitude is required to be conceded to the State authorities in the matter of awarding of contract. Unless the action of the tendering authority is found to be malicious and misuse of his statutory powers, writ Court should not interfere. It is further held that if the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, interference by Court is very restrictive since no person can claim a fundamental right to carry on business with the Government.
10. It is in the public interest to verify the antecedents of contractor before contract is awarded by the State or its instrumentality. Thus, the relevant column where petitioner declared as ‘no’, petitioner intended to mislead the respondent authorities in properly evaluating tender submitted by the petitioner. In the facts of this case, it cannot be said that the decision of the respondent authorities impugned in this writ petition is vitiated by any of the parameters of judicial review in contract matters. I do not see any error warranting interference by this Court rejecting the tender of the petitioner as non-responsive.
11. Accordingly, this writ petition is dismissed. It is appropriate to note that there was only one other person who was qualified and therefore, ultimately a decision was taken to call for fresh tenders. Therefore, the petitioner has further opportunity of participating in the tender process and as and when such notification is issued and since subsequently favourable orders are passed by the Government of Sikkim withdrawing the earlier orders, there can be no impediment for the petitioner to participate in the fresh tenders that are likely to be called as evident from the proceedings. There shall be no order as to costs.
12. Miscellaneous petitions pending in this writ petition, if any, shall stand dismissed.
29th October, 2014 Rds/kkm JUSTICE P.NAVEEN RAO [1]
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(1994) 6 SCC 651 (2000) 2 SCC 617 (2012) 8 SCC 216