Point of Law:Tender/Contract - Petitioner is disentitled to question the tender, having not participated in the tender process

ORDER :

This Writ Petition is filed under Article 226 of Constitution of India by the sole petitioner Attal Plastics for issue of Writ of Mandamus declaring the action of the respondents in issuing tender Notification No.SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021 for supply of school bags to all students studying class-I to X in Government/MPP/ZPP/Municipal/Residential schools/Ashram schools/Aided schools, Model schools/KGBVs of Education and Welfare Departments, etc. in the State of Andhra Pradesh during the academic year 2021-22 by incorporating unreasonable eligibility criteria conditions with respect to average annual turnover and furnishing of solvency certificate as illegal, arbitrary, unreasonable, not transparent and violation of Article 14 of the Constitution of India and consequently directed the respondents to issue fresh tender Notification with respect to aforesaid work by setting aside the tender Notification No.SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021.

2. The case of the petitioner in nutshell is that the petitioner is carrying on business in plastic including school bags and other bags, in pursuance of the Notification issued by the 2nd respondent herein i.e., E-procurement tender notification (Reverse tendering process) in Notification No.SS-16021/3/2021-CMO SEC-SSA/1/2021-22, dated 21.01.2021 for supply of school bags to all students studying class I to X in Government/MPP/ZPP/Municipal/Residential schools/Ashram schools/Aided schools, Model schools/KGBVs of Education and Welfare Departments, etc. in the State of Andhra Pradesh during the academic year 2021-22.

3. As per the tender Notification, the successful bidder has to supply 43,88,687 number of school bags to 4034 destination points/school complexes as specified by the tender inviting committee at the time of allotment of tender. As per tender Notification, bid publishing date was 22.01.2021, uploading of corrigendum/addendum was 03.02.2021, bid closing date was 06.02.2021, pre-qualification bid opening was 06.02.2021, technical bid evaluation was on 09.02.2021, opening of financial bid was 10.02.2021 and reverse auctioning was on 10.02.2021. As per the Notification, one of the eligible criteria is the annual turnover of the firm during the last three years i.e., 2017-18, 2018-19 and 2019-20 should be more than 30 crores. The other eligibility criteria, is that the firm should furnish latest solvency certificate. The respondent authorities issued a corrigendum-I dated 08.02.2021 amending the existing description in the tender document. One of the amendment is the eligibility criteria mentioned in Section II Eligibility Criteria 1.1(h) i.e., ‘the firm should furnish latest solvency certificate’ was amended as ‘the firm should furnish latest solvency certificate for a minimum value of 50% of the Estimated Contract Value ( for short ‘ECV’)’. After issue of the corrigendum, respondent authorities conducted a pre-bid meeting on 09.03.2021. In the pre-bid meeting, the petitioner informed the respondents that the corrigendum issued amending the eligibility criteria with respect to furnishing of solvency certificate is two days prior to bid closing date is not reasonable and incorporating the condition that bidder should complete the supply of school bags to any government organization/department/PSU for the value of not less than 50% to 80% of the ECV under a single contract in any one year of the last five years will ensure fair bidding opportunity. The petitioner also communicated the objection as to the furnishing of solvency certificate for a value of 50% of the ECV and other objections through e-mail on 10.03.2021. Without considering any of the objections, the respondent authorities issued another tender Notification SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021 for supply of school bags to all students studying class I to X in Government/MPP/ZPP/ Municipal/ Residential schools/Ashram schools/Aided schools/Model schools