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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
U. Durga Prasad Rao, J.
Attal Plastics - Petitioner
Versus
The State of Andhra Pradesh Department of School Education Secretariat – Respondent
Writ Petition No.7878 of 2021
Decided On : 02-02-2022
Constitution of India, 1950- Articles 14, 19 , 12 and 226 - E-procurement tender notification - Firm should furnish latest solvency certificate - Petitioner is a proprietary concern engaged in manufacturing of school bags and other bags and supplying to several State Governments by participating in tenders - respondent issued e-procurement tender notification (reverse tendering process) No.SS-16021/3/2021-CMO SEC-SSA/1/2021-22, dated 21.01.2021 for supply of 43,88,687 number of school bags to 4034 destination points/school complexes in the State of Andhra Pradesh during the academic year 2021-22. As per tender notification, one of the eligibility criteria is that the annual turnover of the firm during the last three years - respondents issued corrigendum – I amending the eligibility criteria mentioned in Section – II 1.1(h) “the firm should furnish latest solvency certificate” to “the firm should furnish latest solvency certificate for a minimum value of 50% of the ECV - respondent authorities conducted a pre-bid meeting on 09.03.2021in which the petitioner protested against the amendment issued to the eligibility criteria stating that furnishing of solvency certificate for high value within two days prior to bid closing date was not reasonable.
Finding of the Court:
Eligibility condition can by no means stated to be arbitrary, unfair, unjust and illegal. Added to it, as submitted by learned AAG, the academic year 2021-22 was fast approaching and already the Committee lost January and February months during the first tender process as none of the five bidders could qualify in the technical evaluation. The copy of the minutes of the procurement Committee meeting dated 24.02.2021 filed by learned AAG along with his counter shows that the Committee decided to cancel the first tender and issue fresh short tender notice due to paucity of time and incorporate some changes in the size and quality of school bags - must have prompted the Committee to entrust the work to qualitative manufacturer and therefore the impugned eligibility criteria must have been incorporated. So at the outset, the impugned conditions in my view were intended to subserve the public interest rather than favour a few - allegation, no tangible material is produced by the petitioner to come to such conclusion. The argument that the agreement was doctored on Rs.100/-Non Judicial Stamp paper purchased after the death of the stamp vendor, in my view, will not effect the fairness of the tender process.
Result: Writ petition dismissed.
ORDER :
The petitioner seeks writ of mandamus declaring the action of 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 regard to average annual turnover and furnishing of solvency certificate as illegal, arbitrary, unreasonable and violative of Article 14 of Constitution of India and consequently to set aside the aforesaid tender notification and direct to issue a fresh tender notification.
2. Petitioner’s case succinctly is thus :
(a) The petitioner is a proprietary concern engaged in manufacturing of school bags and other bags and supplying to several State Governments by participating in tenders. The 2nd respondent issued e-procurement tender notification (reverse tendering process) No.SS-16021/3/2021-CMO SEC-SSA/1/2021-22, dated 21.01.2021 for supply of 43,88,687 number of school bags to 4034 destination points/school complexes in the State of Andhra Pradesh during the academic year 2021-22. As per tender notification, one of the eligibility criteria is that the annual turnover of the firm during the last three years (2017-18, 2018-19 and 2019-20) should be more than Rs.30 Crores plus firm should furnish latest solvency certificate. The respondents issued corrigendum – I dated 08.02.2021 amending the eligibility criteria mentioned in Section – II 1.1(h) “the firm should furnish latest solvency certificate” to “the firm should furnish latest solvency certificate for a minimum value of 50% of the ECV”. After issuing corrigendum the respondent authorities conducted a pre-bid meeting on 09.03.2021in which the petitioner protested against the amendment issued to the eligibility criteria stating that furnishing of solvency certificate for high value within two days prior to bid closing date was not reasonable. The petitioner also communicated the objections through e-mail dated 10.03.2021. Without considering the objections of the petitioner, the respondent authorities cancelled the earlier tender notification and issued fresh notification No.SS-16021/3/2021-CMO SEC-SSA/7/2021-22, dated 15.03.2021. As per 2nd tender notification the minimum eligibility criteria for participating in the bids is that the average annual turnover of the firm during the last three years (2017-18, 2018-19 and 2019-20) should be more than Rs.100 Crores and the firm should furnish latest solvency certificate for a minimum value of Rs.39 Crores (50% of the ECV) issued by scheduled bank.
(b) The action of the respondent authorities in incorporating those two conditions is arbitrary, illegal and non-transparent and violative of Article 14 of the Constitution of India. When the petitioner submitted its objections to reconsider the tender conditions of the 1st tender notification, the respondent authorities cancelled the said tender notification and issued the 2nd tender notification with much onerous conditions for procurement of the same number of school bags. The Government of Andhra Pradesh constituted a cabinet sub-committee vide G.O.Ms.No.938 TR & B (R-1) Department, dated 29.11.2000 to examine the various issues relating to revision and streamlining of tender process and after considering the recommendations of the said Sub Committee, the Government have issued G.O.Ms.No.94, dated 01.07.2003 issuing some guidelines for streamlining of tender process. Without following those guidelines, the respondent authorities in order to eliminate most of the bidders and to confer undue advantage to some of the bidders imposed the unreasonable conditions in the minimum eligibility criteria.
(c) The petitioner earlier executed contract with Tamilnadu Textbook and Educational Services C
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