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ANDHRA PRADESH HIGH COURT AT AMARAVATHI
U. Durga Prasad Rao, J.
Bvg India Limited - Appellant
Versus
State of Andhra Pradesh - Respondent
Writ Petition No. 20797 of 2020
Decided On : 07-05-2021
TENDER - CANCELLATION - ARBITRARINESS - MALAFIDES - REVERSE TENDER PROCESS - VALIDITY - JUDICIAL REVIEW - SCOPE AND EXTENT - G.O.Ms.No.79, FINANCE (HR.V-TFR) DEPARTMENT, DATED 25.08.2020 - INTERPRETATION AND APPLICABILITY - Held, the cancellation of the 2nd tender notification dated 06.08.2020 is not fraught with any malafides. The G.O.Ms.No.79, Finance (HR.V-TFR) Department, dated 25.08.2020 applies to respondent No.2 also it being the instrumentality of the State. Since the contract has not been concluded in the subject tender, it is for the respondent authorities to cancel the same and go for reverse tender process by obliging the G.O.Ms.No.79.
Fact of the Case:
The petitioner seeks a writ of mandamus to declare the action of 2nd respondent in cancelling the tender notification No.6.1A/APMSIDC/2020-21 dated 06.08.2020 for 'Selection of service provider for drop-back of postnatal women from Government health facility to home across Andhra Pradesh' as illegal, arbitrary and direct the 2nd respondent to award the said tender to the petitioner it being L1 qualified bidder and consequently quash the subsequent RFP tender No.13.5A/APMSIDC/2020-21 dated 29.10.2020 issued by 2nd respondent for the same purpose as illegal, arbitrary and against the provisions of law and for such other orders.
Finding of the Court:
The Court found that the cancellation of the 2nd tender notification dated 06.08.2020 is not fraught with any malafides. The G.O.Ms.No.79, Finance (HR.V-TFR) Department, dated 25.08.2020 applies to respondent No.2 also it being the instrumentality of the State. Since the contract has not been concluded in the subject tender, it is for the respondent authorities to cancel the same and go for reverse tender process by obliging the G.O.Ms.No.79.
Issues: 1. Whether the cancellation of the 2nd tender notification dated 06.08.2020 is arbitrary and malafide? 2. Whether the G.O.Ms.No.79, Finance (HR.V-TFR) Department, dated 25.08.2020 applies to respondent No.2? 3. Whether the petitioner is entitled to participate in the 3rd tender notification dated 29.10.2020?
Ratio Decidendi: 1. The Court held that the cancellation of the 2nd tender notification dated 06.08.2020 is not arbitrary and malafide. The Court relied on the fact that the tender inviting authority reserved its right to accept or reject any bid and to annul the bidding process at any time prior to the award of contract without assigning any reason. 2. The Court held that the G.O.Ms.No.79, Finance (HR.V-TFR) Department, dated 25.08.2020 applies to respondent No.2 also it being the instrumentality of the State. 3. The Court held that the petitioner is not entitled to participate in the 3rd tender notification dated 29.10.2020 as the issue is outside the purview of the writ petition.
Final Decision: The writ petition is dismissed.
JUDGMENT
U Durga Prasad Rao, J. - The petitioner seeks a writ of mandamus to declare the action of 2nd respondent in cancelling the tender notification No.6.1A/APMSIDC/2020-21 dated 06.08.2020 for 'Selection of service provider for drop-back of postnatal women from Government health facility to home across Andhra Pradesh' as illegal, arbitrary and direct the 2nd respondent to award the said tender to the petitioner it being L1 qualified bidder and consequently quash the subsequent RFP tender No.13.5A/APMSIDC/2020-21 dated 29.10.2020 issued by 2nd respondent for the same purpose as illegal, arbitrary and against the provisions of law and for such other orders.
2. The petitioner's case briefly is thus:
(b) The 2nd respondent floated online tender No.2.1/APMSIC/2020-21 dated 27.05.2020 inviting bids for 'Selection of service provider for drop-back of postnatal women from Government health facility to home across Andhra Pradesh' and the petitioner company participated in the said bidding process by verifying all the conditions of the tender notification. On 18.06.2020, pursuant to the clarification requested by the bidders, the 2nd respondent issued Amendment No.1 to the above tender notification; while so, on 30.06.2020 the 3rd respondent informed all the bidders that any clarification regarding the remarks of Preliminary Technical Evaluation Report be sent to 2nd respondent before 3.00 P.M. on 01.07.2020. In the same notice, the details of the qualification criteria and tender documents were evaluated and provided. It was mentioned inter alia as follows:
a. M/s. Vsoft Technologies Pvt. Ltd. - Provisionally not qualified due to price bid disclosed in technical bids as per Tender Clause 6.15.2 (iii) at Page No.23 and Tender Clause 6.3.C at Page No.20;
b. GVK EMRI - Provisionally not qualified due to non-submission of EPF certificate on the name of M/s. GVK EMRI; and
c. BVG India Limited - Provisionally Qualified.
Pursuant to the above notice dated 30.06.2020, the petitioner company sent a letter to 3rd respondent on 03.07.2020 raising objections regarding the request of the respondents to the bidders to send their clarifications against the Preliminary Technical Evaluation Report. The main objection of the petitioner is that when M/s. GVK EMRI and M/s. Vsoft Technologies Pvt. Ltd were not provisionally qualified in the Preliminary Technical Evaluation Report, how they along with other bidders were requested by the Department to send their compliance and clarifications before 01.07.2020. Thus the petitioner's main contention is that the Department can ask clarification of the information from the qualified bidders, but not the above two bidders. However, the objection letter dated 03.07.2020 was summarily ignored and the 2nd respondent opened the financial bid of the petitioner Company and GVK EMRI, wherein GVK EMRI stood L1 despite not having qualified in the technical bid.
(c) While so, the 2nd respondent on its own cancelled the first tender dated 27.05.2020 and on 17.08.2020 floated another tender No.6.1A/APMSIDC/2020-21 dated 06.08.2020 for the same purpose. So far as the second notification dated 17.08.2020 is concerned, the 2nd respondent issued Amendment No.1 dated 18.08.2020 stating that the pre-bid meeting shall be conducted on 21.08.2020 at 11.00 A.M. at the office of APMSIDC, Mangalagiri, Guntur. Subsequently on 28.08.2020, 2nd respondent issued Amendment No.2 to the tender notification No.6.1A/APMSIDC/2020-21 dated 06.08.2020 in pursuance of the clarifications requested by the bidders during the pre-bid meeting held on 21.08.2020. Vide a note dated 02.09.2020, the 3rd respondent informed all the bidders that any clarification regarding the remarks of the Preliminary Technical Evaluation Report be sent to the respondent before 3.00 P.M. on 03.09.2020. In the same n
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