HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.11739 of 2014 Date: 19-06-2014 Between:
M/s. Sriram Electrical and Electronics Pvt. Limited, Represented by its Managing Director, Nakrekal, Nalgonda .. Petitioner AND The Transmission Corporation of Andhra Pradesh Limited, represented by its Chairman and Managing Director, A.P. Transco, Hyderabad and another .. Respondents HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.11739 of 2014 ORDER:
This writ petition is filed for declaring the action of the respondents, particularly the 2nd respondent in issuing Letter No.CTO/121/F.Repair RC 2013-14/D.No.156/14, dated 24-03-2014 as illegal, arbitrary and unconstitutional and for a consequential direction to set aside the same and to direct the respondents to open the price bid of the petitioner and after evaluating the price bid, to award the work to the petitioner.
2. The case of the petitioner is that the petitioner is a firm established with financial assistance from the A.P. State Finance Corporation and was registered as a Small Scale Industrial Unit by the Government of A.P. in the year 1999 and is in the business of repairs of power transformers and the petitioner firm has been regularly carrying out repairs of power transformers for various agencies and authorities including the 1st respondent. It is stated that the 2nd respondent issued a tender notification vide CTO No.01/2013 dated 06-11-2013 for repairing, overhauling and testing of power transformers in the state of A.P. in respect of 10/16 MVA, 20/315.5, 50, 80 MVA, 100 MVA and 160 MVA sick power transformers on a rate contract basis, in pursuance of which, the petitioner submitted both technical bid as well as financial/price bid on 30-12-2013 and also submitted bid security by way of a bank guarantee of Rs.1,00,000/- in favour of the 2nd respondent. It is also stated that the said technical and price bids were accepted for consideration by the 2nd respondent and the pre-qualification analysis was also undertaken. While so, to the shock and surprise of the petitioner, the 2nd respondent issued a communication vide letter No.CTO/121/ F.Repair RC 2013- 14/D.No.156/14, dated 24-03-2014 stating that the bid of the petitioner was rejected as being not technically qualified without any reasons. Though the petitioner complied with all the requirements in relation to the submission of the technical bid, the 2nd respondent rejected the petitioner’s technical bid without assigning any reasons. Aggrieved by the action of the respondents in rejecting the bid of the petitioner vide letter dated 24-03-2014, the present writ petition has been filed.
3. This Court, on 17-04-2014 granted status quo, which is extended from time to time.
4. The respondents filed counter along with vacate stay petition stating that A.P. TRANSCO invited bids for repair and overhaul of 220 KV, 132 KV class power transformers (PTRs) on rate contract basis and the bids are invited on two parts i.e. Para- A-prequalification bid and Part-B is price bid. It is stated that as per clause 11 of Section 1, it is mentioned that no deviations from the terms and conditions are allowed and all tenders should strictly confirm to the conditions notified and any tender not strictly in conformity with the notified conditions are liable to be rejected. It is further stated that as per clause 12 “Acceptance of rates” of Section 1 at page 17 of tender specification No.CTO- 01/2013, the APTRANSCO also reserves the right to accept or reject any particular tender without assigning any reasons therefor. The respondents further stated that APTRANSCO manual states that any clarification required from the opened bids in regard to qualification requirement or technical aspects which do not have bearing on the price bid may be obtained from the bidders and that the deviation taken by the petitioner is a commercial deviation which has impact on price and hence, clarification could not be sought for on the deviated aspect, which have a bearing on the price bid. It is further stated that the commercial clause quoted by the petitioner clearly indicates deviation from prices and statutory variation clause Nos.1 and 2 of Financial Section II of the tender specification No.CTO-01/2013. It is further stated that the petitioner has to accept all terms and conditions of the tender application and though the petitioner qualified in technical aspects and meeting qualification requirements, he has deviated from financial terms and conditions and that as per clause-11 of the terms and conditions, the bid of the petitioner was disqualified for opening of price bids and hence, unopened price bids were returned.
4. Heard the learned counsel for the petitioner and the learned standing counsel for the respondents, who reiterated their respective contentions raised in the writ petition as well as the counter affidavit.
5. In the instant case, admittedly, the tender is issued by the respondent Corporation for repairing, overhauling and testing of power transformers of 10/16 MVA, 20/315-5, 50, 80 MVA, 100 MVA and 160 MVA sick power transformers in the state of A.P. on a rate contract basis. As per clause 11 of Section 1 of the terms and conditions, it is mentioned that no deviations from the terms and conditions are allowed and all tenders should strictly confirm to the conditions notified and any tender not strictly in conformity with the notified conditions are liable to be rejected. In the present case, the petitioner participated in the tender process and insofar as the service tax is concerned, it is mentioned in the tender that the service tax is extra on labour portion, now tax is at 12.36% and if any variation in the tax at the time of billing i.e. in your account any statutory levies, which are applicable will be paid extra by APTRANSCO. This indicates clear deviation from prices and statutory variation clause Nos.1 and 2 of Financial Section II of tender specification No.CTO-01/2013, which reads as follows:
“PRICES: Firm Prices: The prices quoted shall be firm and shall not vary under any circumstances. The quoted prices should be inclusive of all taxes and other legally permissible duties and levies wherever applicable, handling charges and storage during repairs except ST/VAT, Service Tax. The same will be extra as applicable as on date of placing purchase order. In case the tenderer is exempted from paying Sales Tax such tenderer shall invariably enclose a copy of the sales tax exemption certificate.
STATUTORY VARIATION: Any variation up or down in statutory levy or new levy introduced after placing of the order under this specification shall be to be account of the APTRANSCO provided delivery schedule is adhered. In cases where delivery schedule is not adhered to by the repairer and there is upward variation/revision after the agreed delivery date, the repairer shall bear the impact of such levies and if there is downward variation/revision the APTRANSCO shall be given credit to that extent. Any other taxes, duties, cess, road permit charges etc., which are imposed after submission of the bids will be paid by the APTRANSCO as applicable subject to providing the necessary documentary proof for having paid the taxes to Government.”
6. Since the bid of the petitioner is in clear deviation of prices and statutory variation of clauses 1 and 2 of Financial of Section II of the tender specification, the bid of the petitioner was rejected, which is not denied or disputed by the petitioner. The offer made by the petitioner is conditional offer, as such, the offer is not a valid offer. Since the petitioner has not given unconditional offer in pursuance of the tender notification, the bid of the petitioner was rejected. No doubt, in the impugned proceedings, reasons are not given, but the respondents explained in the counter that the bid of the petitioner is in variance of the terms and conditions of the tender notification, which is not denied or disputed by the petitioner. Learned counsel for the petitioner submits that the respondents could have sought for clarification from the petitioner and the petitioner could have clarified the same. The respondents have clearly explained in the counter affidavit that the deviations taken by the petitioner is commercial deviation, which have impact on prices and hence, clarification could not be sought for on the deviated aspect, which have a bearing on the price bid. Since the financial bid of the petitioner is not in tune with the tender conditions and as the petitioner has not complied with the terms and conditions of the tender notification in submitting the financial bid, the respondents have rejected the bid of the petitioner, as such, rejection of the petitioner’s bid cannot be faulted.
7. Therefore, in view of the above facts and circumstances of the case, particularly the stand taken by the respondents in the counter, I do not see any valid reason to interfere with the tender process by exercising the power of judicial review under Article 226 of the Constitution of India, and hence, the writ petition is liable to be dismissed.
Accordingly, the writ petition is dismissed. No costs. As a sequel thereto, miscellaneous petitions if any pending shall stand closed.
A. RAJASHEKER REDDY, J Date: 19-06-2014 Ksn