The writ petitioner, Mr.M.Murugesan has sought for writ of mandamus directing the State Industries Promotion Corporation of Tamil Nadu Ltd., represented by its Managing Director, the first respondent herein to accept the tender of the petitioner without insisting upon the past experience certificate in respect of street light work submitted as per Tender Notice NIT.No.16 / CW / DO / T.No.15/ 2016-17, dated 09.12.2016.
2. Mr.S.Doraisamy, learned counsel appearing for the petitioner would submit that the petitioner is Class-I contractor on various department and also under the first respondent corporation. While so, bids in tender notice were invited by the first respondent on 09.12.2016 for the works, namely construction of Roads (CBR), Relaying the Roads, construction of box culverts, improvements of water supply, improvement of street light and improvements of A.O. Block at SIPCOT Industrial complex, Pudukottai, fixing the last date for submission of the tender on 25.01.2017 at 3 p.m indicating therein that the tenders will be opened at 3.30 p.m on the same day. The petitioner downloaded the tender documents and found that the pre-qualification condition that the tenderers should have the experience and they should furnish in the shape of work completion / performance certificate issued by the officer concerned not below the rank of Divisional Engineer or Executive Engineer of the first respondent clearly indicating period of contract, date of commencement, date of completion, agreement value and number and final value of work done for the works as detailed below :
3. Aggrieved by the 6th condition of the supply and fixing of 70 LED street lights, the petitioner has come to this Court. Explaining further, Mr.S.Doraisamy, learned counsel would submit that the 6th condition namely supply and fixing of LED street lights has been made only to prevent the petitioner and others with intention to favour the second respondent from participating in the tender. When the petitioner and other tenderers are all civil contractors, which is admitted by Mr.S.Doraisamy, learned counsel appearing for the petitioner and that they may not have long experience in executing the electrical work, further it could be executed by engaging an Electrical Engineer. The reason is that even in the tender form itself there is a condition that the contractor should appoint an Electrical Engineer with B.E., (Electrical Engineering) qualification apart from two Civil (B.E) Engineers and 3 Diploma Holders (Civil). Since these conditions are for the first time introduced, it goes without saying that the first respondent is definitely going to favour the second respondent alone.
4. In this context, the Hon'ble Supreme Court also in a reported Judgment, Meerut Development Authority v. Association of Management Studies and Another, reported in 2009 (6) SCC 171, has made it clear that only a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. Otherwise, no one can challenge the terms and conditions of the tender except on the afore mentioned condition.
5. In the present case, the learned counsel for the petitioner pleaded that the petitioner is able to make of that the imposition of the 6th condition, namely supply and fixing out 70 LED street lights is candidly introduced with a plan to favour the second respondent. Therefore, a direction should be given to the first respondent to accept the tender of the petitioner without insisting upon the past experience certificate in respect of street light work.
6. This Court is not able to entertain the writ petition for two good reasons. Firstly when the petitioner has come to this Court on the ground that he is aggrieved by the 6th condition shown in the tender notification, it is not known why he has not challenged the said condition as unreasonable either on the ground that the 6th condition has been included only to favour the second respondent. Without challenging the condition on the ground of unreasonableness, the petitioner cannot ask for a direction to the first respondent to accept his tender without insisting upon the past experience certificate in respect of the street light work.
7. Secondly as we are living in the sophisticated advanced stage fixing experts to undertake any work depending upon their expertise in the specialized field, I find the 6th condition imposed on all the bidders that they should have past experience in executing the electrical work of fitting street lights cannot be found fault with.
8. The petitioner and other tenderers are all civil contractors whereas work going to be executed is relating to the electrical works. Therefore, the first respondent imposing the condition along with electrical works cannot be questioned and this Court is not able to find that the first respondent is proceeding without any unreasonable conditions. The Judgment cited by the learned counsel appearing for the petitioner, in my considered view cannot be made applicable. Therefore, the writ petition fails and accordingly, the same is dismissed. No costs. Consequently, connected MP is also dismissed.
24.01.2017 tsvn Internet : Yes / No T.RAJA, J tsvn To State Industries Promotion Corporation of Tamil Nadu Limited, 19-A, Rukmani Lakshmipathy Road, Egmore, Chennai - 8.
Rep. by its Managing Director.
W.P.No.1758 of 2017 24-01-2017 http://www.judis.nic.in