The Hon’ble Sri Justice C.V.Nagarjuna Reddy Writ Petition No.36580 of 2013 Dated 18.12.2014 Between:
Sree Rama Electricals and Electronics Pvt. Ltd. rep. by its Managing Director Veladi Mohan …Petitioner And Central Power Distribution Corporation Ltd. of A.P. and 2 others.
…Respondents Counsel for the petitioner: Mr.B.Vijaysen Reddy Counsel for the respondents: Mr.S.V.Ramana for Mr.O.Manohar Reddy SC for CPDCL The Court made the following:
Order:
Feeling aggrieved by the inaction of the respondents in short-listing the petitioner’s tender for award of rate contract, the petitioner- Company has filed this Writ Petition.
The petitioner has averred that the respondents have issued e-tender bid notice through official website inviting bids from the eligible local bidders for repairing/overhauling of sick 33/11 kv power transformers of different makes and capacities available at various sub-stations and sites of respondent No.1- Central Power Distribution Company Limited of Andhra Pradesh on rate contract; that, originally, the tenderers were permitted to download bid document from 22-08- 2013; that, later on, Corrigendum was issued specifying the schedule end date and time for downloading the bid document on e-procurement web site as 16-09-2013 and the last date and time for bid submission through online as 16.09.2013 and through hard copies as 17-09-2013; that the technical bid was scheduled to be opened on 17- 09-2013; that the price bid was scheduled to be opened on 23-09-2013; that a sum of Rs.1 lakh through demand draft was paid by the petitioner to respondent No.1 as bid security; and that after downloading the bid document, the petitioner submitted its bid on 16.09.2013. The petitioner further averred that recently, when it came to know that its price bid was not opened, it tried to ascertain the reasons therefor; that its personal enquiries revealed that it did not satisfy the technical qualifications; and that, therefore, its price bid was not opened. The petitioner has, therefore, approached this Court by way of the present Writ Petition.
On behalf of the respondents, respondent No.2 has filed a counter-affidavit wherein it is inter alia stated that the petitioner’s price bid was disqualified for two reasons- Firstly, that the petitioner failed to produce the Certificate issued by the Chartered Accountant showing that it has a turn- over of atleast Rs.20 lakhs in any one of the five preceding financial years and Secondly, that the petitioner has not filed the latest income tax return for the financial year 2012-2013 or atleast for the financial year 2011-2012. As these two conditions are mandatory and as they have not been complied with by the petitioner, its price bid has been disqualified.
On behalf of the petitioner- Company, a reply- affidavit is filed by its Managing Director wherein he has averred that the petitioner has furnished the financial statements for the years 2007-2008 to 2011-2012, duly certified by its Chartered Accountant viz., M/s.PR Krishna and Associates, a perusal of which would show that its revenue operations were above Rs.1 Crore in all the preceding five financial years. He has also averred that these financial statements were duly audited and that the tender document does not specify any particular format of statements, which requires to be certified by the Chartered Accountant.
As regards the latest income tax returns, it is averred that the tender condition is not clear inasmuch as the year of payment of income tax is not specified therein; that the latest income tax return would mean that the income tax return for the year 2012-2013; that the income tax return for the said year could not be furnished as the petitioner had time to submit the same until 12-09-2013; that however, the provisional balance sheets for the preceding five financial years showing the petitioner’s income, gross turn-over and profit and loss were furnished. Along with the reply affidavit, the petitioner has filed the audited statements of profit and loss accounts for the preceding five financial years.
A perusal of the Tender Specification No.Chief General Manager/O&M: 01/2013-14 shows that sub-clause 6 of Clause 19 specified the documents to be filed by the tenderers. While serial No.1 thereof refers to production of Certificate issued by the certified Chartered Accountant showing the turn-over of atleast Rs.20 lakhs in any one of the five preceding financial years, serial No.7 refers to the latest income tax return and copy of pan card. Along with the reply affidavit, the petitioner has filed a list of the data pertaining to filing of its tender along with the enclosures. The list shows that the petitioner has filed its audited accounts for the financial years 2008-2009 to 2012- 2013.
A perusal of the audited accounts, which comprise profit and loss account and balance sheet, shows that they have been duly certified by M / s . P R Krishna and Associates, Chartered Accountants. The learned Counsel for the respondent has not disputed that these documents have been uploaded by the petitioner along with its tender.
From a reading of the conditions stipulated at serial Nos.1 and 7 of Clause 19 (6) of the impugned Tender Specification, it is reasonable to presume that the main purpose of stipulating filing of the Certificate issued by the Chartered Accountant and the latest income tax return is to know whether the tenderers have a turn-over of atleast Rs.20 lakhs in any one of the five preceding financial years. As rightly pleaded by the petitioner, no form has been prescribed with regard to the turn-over Certificate required to be issued by the Chartered Accountant. In the absence of such prescription, the audited profit and loss accounts and the balance sheets of the petitioner, certified by the Chartered Accountant, would constitute substantial compliance of the condition stipulated at serial No.1 of Clause 19 (6) of the impugned Tender Specification.
As regards the latest income tax return, the petitioner has given proper explanation for not filing the same viz., that there was still time left for it to submit the same. At any rate, the petitioner was able to submit the audited accounts till the previous financial year i.e., March, 2012, and from these audited accounts, the petitioner is able to prove that it satisfies the main eligibility criterion of having financial turn-over of not less than Rs.20 lakhs in any one of the five preceding financial years. Indeed, a perusal of the audited accounts filed by the petitioner would show that it satisfies this criterion far in excess of the requirement as its financial turn-over exceeded Rs.1 Crore during all the preceding five financial years. On the above uncontroverted facts, the action of the respondents in not opening the petitioner’s price bid cannot be justified.
The learned Counsel for the respondents submitted that the price bids have already been opened and a list of eligible tenderers has been prepared.
The learned Counsel for the petitioner submitted that the contract being in the nature of a rate contract, the petitioner’s name can be included even at this stage so that depending upon the price it offered, it can be entrusted with the works along with other eligible tenderers.
I find merit in the submission of the learned Counsel for the petitioner. As the contract is perennial in nature, the petitioner’s price bid can be opened and its name can be included among the successful tenderers even at this stage. Therefore, the respondents are directed to open the price bid of the petitioner by treating its tender as technically qualified and take a decision on the inclusion of the petitioner’s name in the list of the eligible contractors for entrusting the contract work to it within one month from the date of receipt of this order.
The Writ Petition is, accordingly, allowed.
As a sequel to disposal of the Writ Petition, WPMP.No.45474 of 2014, filed by the petitioner for interim relief, is disposed of.
(C.V.Nagarjuna Reddy, J) Dt: 18th December, 2014
LUR