Point of Law: Qualification of the 8th respondent as a person eligible to participate in the financial bid and the award of contract to the 8th respondent would have to be set aside on account of the violation of the tender conditions.

ORDER :

The petitioners in both these cases are aggrieved by the award of contract for supply of diet etc., by letter date 11.11.2021, by the Convenor of the 2nd respondent District Diet Management Committee, Guntur, to the 7th respondent in W.P.No.26767 of 2021 and the 8th respondent in W.P.No.27354 of 2021 by the official respondents for supply of diet to in-patients and duty Doctors in Government General Hospital, Guntur, (hereinafter referred to as the Hospital) whose superintendent has been arrayed as the 4th Respondent in W.P.No. 27354 of 2021. They pray for setting aside the same.

2. As both these writ petitions are essentially seeking to challenge the same order, these writ petitions are being disposed of by this common order.

3. The case of the petitioner in W.P.No.26767 of 2021 is that he is a diet contractor, who was interested in participating in the tender floated by the 2nd respondent vide Rc.No.1581/HDS/2020-21, dated 15.09.2021 for supply of diet in the Hospital. However, he had not participated in the said tender as he was unable to file the VAT/GST clearance certificate, which is a mandatory requirement under the terms and conditions of the tender document. The petitioner contends that he is aggrieved by the fact that the 7th respondent in the W. P. No. 26767 of 2021, who was similarly situated and had not furnished the latest VAT/GST clearance certificate, had been awarded the contract by waiver of the said conditions. The petitioner contends that the said waiver should have been communicated to all the concerned and persons like him should have been given an opportunity to participate in the tender. He relies upon the judgment of the Hon’ble Supreme Court in Ramana Dayaram Shetty vs. International Airport Authority of India and Ors., (1979) 3 SCC 489.

4. The case of the petitioner in W.P.No.27354 of 2021 is as follows:

(a) The tender process to be followed under the above tender notification was that the interested bidders had to submit their bid in two separate covers. The first cover, termed technical bid, was to contain the eligibility, technical and financial criteria and the second cover, termed financial bid, was to contain the price quoted by the bidder. The tender committee was to evaluate the technical bid to ascertain whether the bidders had complied with all the mandatory requirements and were qualified to participate in the tender. Thereafter, only the second covers of the bidders, who had qualified in the technical bid, were to be opened and considered for award of the contract.

(b) The petitioner, who is said to have cleared the technical bid, contends that the 8th respondent in the writ petition did not file VAT/GST returns for the immediately preceding years and should have been disqualified on that ground. The petitioner further contends that the 8th respondent did not have a GST licence, which was another ground for disqualifying the 8th respondent. The petitioner further contends that despite these difficulties, the bid of the 8th respondent was cleared and the contract was awarded to the 8th respondent.

(c) It is the further case of the petitioner that the 8th respondent was earlier supplying diet to Niloufer Hospital, Hyderabad and the Superintendent, Niloufer Hospital, Hyderabad, had requested the District Collector, Ranga Reddy to recover an amount of Rs.1,13,28,320/- from the 8th respondent for having claimed excess bills without supplying proper and required diet. A Criminal Complaint being Cr.No.98 of 2021 was also registered against the 8th respondent in CCS, Hyderabad on 17.06.2021.

(d) In the light of the above facts, it is the contention of the petitioner that the official respondents modified the tender conditions contrary to the terms laid down in G.O.Ms.No.325, MH&FW, dated 01.11.2011 and the award of such contract is clearly in violation of the tender conditions as well as G.O.Ms.No.325, dated 01.11.2011.

5. The 4th respondent, who is the Superintendent of the Hospital and the 8th