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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Ramesh Ranganathan, J.
Sahakar Global Ltd. - Appellant
Vs.
Hyderabad Metropolitan Development Authority - Respondent
Writ Petition Nos. 15862, 15863 and 15864 of 2014
Decided On: 15.10.2014
Metropolitan Development Authority Act, 2008 – Civil Application – Infrastructure Development – Joint Venture – Action of the respondents, in abruptly opening the price bids of only three of the nine bidders, as illegal and arbitrary Petitioner is a Joint Venture company promoted Multi Services first respondent is a statutory authority constituted under the provisions of Act, 2008 - The second respondent is a 100% subsidiary of the State Government and undertakes infrastructure development as a commercial third respondent is the Joint Venture of respondents 1 and 2 and is involved in the development of the Nehru Outer Ring Road fourth respondent is the successful to whom the subject contract was awarded petitioner filed to declare the action of the respondents, in eliminating them at the technical bid evaluation stage and in, consequently, not opening their price bid pursuant to the bid notice dated 25.03.2014, as arbitrary and illegal. They also sought a direction to declare the action of the respondents, in abruptly opening the price bids of only three of the nine bidders, as illegal and arbitrary. The petitioner submits that, when came up for hearing on third respondent had informed the Court that the petitioner was disqualified as they were allotted 24.12 points as against the required 75 points; and they did not have the required tolling experience, and experience in installation of tolling equipment, for the financial years 2010-11, 2011-12 and 2012-13. Reference is made by the petitioner to a note of the third respondent to contend that, as one of the J.V. Partners of the petitioner – Held, contending that the petitioner had offered a financial bid, higher than that of the successful Sri V.M.M. Chary, Learned Counsel for the petitioner, would fairly state that the petitioner fulfilled the stipulated technical qualifications only for the financial year 2013-14, and not for any of the preceding years. Even if 2013-14 is taken into consideration, the requirements regarding tolling experience is that should have collected user fee of not, at any single toll plaza, for the preceding three years. As the petitioner, admittedly, has not fulfilled this requirement for the financial years matters little that they fulfilled this requirement for the financial year as they would still be ineligible having failed to secure any points under the head "tolling experience" which would result in their inability to secure the minimum cut off points reason, therefore, to grant the relief sought for in this Writ Petition financial bid offered by different bidders, and the vehemence with which submissions were made during the course of hearing of these writ petitions, lead this Court to believe that respondents 1 to 3 may have lost the opportunity of their revenues, and that, instead of awarding the contract straightaway to the 4th respondent, they could have, through a process of negotiations with all the three technically qualified, further enhanced their revenue. If the award of work had been challenged by either of the other two bidders, who qualified at the technical evaluation stage, this Court could have ascertained whether they were willing to offer a price bid more than the 4th respondent. Neither of the other two technically qualified bidders have, however, invoked the jurisdiction of this Court. While interference with the award of contract to the 4th respondent, in Writ Petitions filed by those who are technically ineligible – Writ Petitions fail and are, accordingly, dismissed.
Ramesh Ranganathan, J.
Writ Petition No. 15863 of 2014:
1. The petitioner is a Joint Venture company promoted by M/s. Seven Hills Buildcon Private Limited, M/s. Creative Solutions and M/s. S.S. Multi Services. The first respondent is a statutory authority constituted under the provisions of the Hyderabad Metropolitan Development Authority Act, 2008. The second respondent is a 100% subsidiary of the State Government and undertakes infrastructure development as a commercial venture. The third respondent is the Joint Venture of respondents 1 and 2 and is involved in the development of the Nehru Outer Ring Road. ("ORR" for short). The fourth respondent is the successful tenderer to whom the subject contract was awarded.
2. The third respondent issued a notice on 25.03.2014, for "collection of user fee through user fee collecting agency", inviting tenders on the basis of competitive bidding for the Nehru Outer Ring Road stretch from Pedda Amberpet (KM 96+650) to Shamirpet (KM 61 + 100) via Shamshabad, Narsingi, Patancheru, Dundigal and Medchal for a length of 119.450 KMs (with a diversion of about 3 KM at Kandlakoya (Near Medchal) on NH. 44 (Interchange) of Nehru Outer Ring Road, Hyderabad including the link road from Gachibowli to Narsingi. The bid invitation, (hereinafter referred to as Notice Invitation Tender, for short "NIT'), records that the 3rd respondent was entrusted with the development and management of Nehru ORR, entrusted or vested in it by the Government of A.P. and HMDA; and they were inviting bids from eligible companies, co-operative societies and registered partnership firms for collection of the user fee for the said section of Nehru ORR. User fee, on the Nehru ORR, was to be collected at 17 inter-change locations (Toll plazas). It was stated in the NIT that the contract would be for a period of 18 months; that HGCL reserved its right to extend the contract period for a maximum period of 6 months after expiry of 18 months (original period of contract); the bidder had to pay 1.25 times (25% extra of the licence fee i.e., the total amount payable by the bidder to the HGCL including the premium) during the extended period; the premium amount quoted by the bidders would be the sole criteria for their selection; and the premium amount, quoted by the bidder per month, was to be paid by him to HGCL in addition to the amounts, shown in column No. 3, payable for the stretch.
3. The earlier NIT, issued in the month of January, 2012, had resulted in the subject work being awarded in favour of M/s. P.K. Hospitality Services Pvt. Ltd. and the said contract expired, as a result of efflux of time, on 25.03.2014. The subject NIT dated 25.03.2014 stipulated the last date for purchase of the bid documents as 25.04.2014, and the last date for submission of bids as 26.04.2014 upto 15.00 hours. The technical bids were stipulated to be opened on 26.04.2014 at 15.30 hours. The financial bids were to be opened later on a date to be notified separately to the technically successful bidders. In the pre-bid meeting held on 09.04.2014, several queries were raised and discussed by the prospective bidders.
4. The bidding was contemplated to be a two stage process with bidders being required to submit two envelopes - one containing the technical bids and the other containing the financial bids. The Invitation to Bid ("ITB" for short) envisaged that, after the technical bid envelope was opened, it would be assessed basing on the grading/marking of 100 points; bids of only those who secured 75 points, from out of 100 points, would be deemed to be responsive; and it is only their financial bids which would then be opened by the third respondent. Nine bidders participated in the bidding, and their technical bids were opened.
5. The petitioner claims to have quoted a financial bid of Rs. 4.45 Crores per month. It is their case that, since the
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