In this writ petition, the petitioner questioned the action of respondent Nos.1 to 3 in qualifying respondent No.4 for award of contract notified under tender notice No.CEC/Hydel/HD-IV/NSTPD/F.HMW/D.No.66/2008, dated 16.06.2008. The petitioner sought for a consequential direction to the said respondents to disqualify respondent No.4 from participating in the tender process and to declare that the petitioner’s bid is the lowest among the responsive bids and award contract in its favour.

The facts necessary for the disposal of the case are stated hereunder:

The petitioner is a registered special class contractor, specialized in execution of projects relating to Irrigation and Hydro Electric Power generation. Respondent No.2 issued tender notice dated 16.06.2008 calling for sealed tenders from the registered special class contractors or consortium of firms for Nagarjuna Sagar Tail Pond Dam (NSTPD) Hydro Mechanical works for dam and power house at 21.065 km down stream of Nagarjunasagar dam across river Krishna near Satrasala Village of Guntur District. The approximate value of the work is Rs.132 crores. As per the prescribed procedure, the tender is in two parts, namely; (i) Part-I – Pre-qualification and Technical bid and (ii) Part-II – Unconditional Price Bid.

As per the schedule fixed in the tender notification, the tenders were to be opened on 11.08.2008 at 3.00 p.m. This date was, however, changed as 04.10.2008 and intimated to all the tenderers. The tender conditions prescribed that the price bids of qualified tenderers in technical bids alone will be opened on the day next to which the pre-qualification bids will be opened.

Though in its affidavit, the petitioner raised the plea that respondent No.4 did not specify the pre-qualification criteria, as this plea was not pressed at the hearing, it is not necessary to refer to the pre-qualification criteria prescribed for execution of the work in question.

On coming to know that the technical bid of respondent No.4 was accepted and it was qualified for opening of its price bid, the petitioner and three other tenderers, who filed their tenders, addressed letter to the Chief Engineer (Civil Hydel), A.P. GENCO, Vidyut Soudha, Hyderabad, wherein they have pointed out that the tender of respondent No.4 was not in conformity with the prescribed procedure and the same is liable to be rejected by treating it as non-responsive tender. It was inter alia stated that respondent No.4 did not submit its price bid in the envelope meant for submission of price bid, but only a schedule was submitted in the said envelope. It was further pointed out that respondent No.4 deviated from the express provisions and terms and conditions incorporated in the tender documents governing the price schedule in respect of the following aspects:

“a) Demand of Interest Free Mobilization Advance to the extent of 10% of contract value on award of work against furnishing of Bank Guarantee of equivalent amount.

b) Payment in Foreign Currency for procurement of Hydraulic Hoist Cylinders, Self Lubricating Bushes etc.

c) Additional advance payment of the order of 10% on furnishing un-priced copy of the order and balance payment before dispatch.”

It was further pointed out that having deviated from the prescribed terms and conditions, respondent No.4 failed to indicate the financial implications of such deviations as required to be stated as per the tender conditions and that if the employer decides to consider the tender of respondent No.4, all other bidders may be allowed to stipulate the same conditions with uniform financial implications. An alternative request was made by the petitioner and other bidders in the said letter that the tender of respondent No.4 can be considered subject to its unconditional withdrawal of the conditions, which are in deviation from the stipulated tender conditions.

Respondent Nos.1 to 3, however, qualified respondent No.4 for opening the price bid and accordingly the price bi