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2022 Supreme(AP) 138
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
D.V.S.S. SOMAYAJULU, J.
M/s Adani Ports and Special Economic Zone Ltd., and another - Petitioners
Versus
The Vishakhapatnam Port Trust - Respondent
Writ Petition No. 455 of 2022
Decided On : 03-03-2022
For the Petitioners: Sri A. Satya Prasad, Senior Counsel, Sri V. Harish.
For the Respondent: Sri P. Raghuram, Senior Counsel, Sri Raviteja Padiri, Standing counsel.
Point of Law : Clause 7 of the appendix of Annexure-I clearly states that bidders should disclose if there is material non-performance or contractual non-compliance in the past projects, apart from contractual disputes and representations.
Headnote:
Constitution of India, 1950 - Article 226 - Seeking a Writ of Mandamus - Concealment facts or false information - petitioner is a company which wanted to participate in a tender mechanization of WQ 7 & WQ 8 Berths tender involved a multi stage process - First stage was the qualification stage bidders who qualified at this stage were entitled to participate in the second stage, which is bidding stage - Petitioner was disqualified at first stage itself on ground that they did not disclose certain important material facts. Learned senior counsel points out that this decision of disqualifying the petitioner is not communicated to petitioner - Counsel submits that procedure adopted by respondent Port Trust is totally wrong - It is submitted that the ground on which the petitioner was disqualified is also not legally and factually tenable.
Finding of the Court: Consortium should disclose this fact enjoins upon petitioner to disclose the termination of contract of an associate by VPT counter affidavit these facts have been clearly pleaded but petitioners have not chosen to file any rejoinder against the same or by controverting same disclosure of the pendency of an arbitration does not meet the mandatory requirements or essential condition of this term. Any contractual non-performance or contractual non-compliance in past projects should have been disclosed with clarity. bid document are clear - They are clearly applicable to the facts and circumstances of this case - Court is of opinion that the decision making process leading to a disqualification of the petitioner cannot be found fault with - Court does not find any arbitrariness; irrationality; bias; mala fides either. Their failure to disclose termination of contract of their 100% owned subsidiary VPTs termination a clear case of furnishing materially incorrect, false information - Allegation of material non-performance; contractual non-compliance etc., are present from both sides in the earlier contract.
Result: Writ Petition is dismissed.
ORDER :
1. With the consent of all the learned senior counsels and the learned standing counsel for the respondent-Visakhapatnam Port Trust the Writ Petition itself is heard.
2. The Writ Petition is filed by the petitioners seeking a Writ of Mandamus declaring the action of the respondent in disqualifying the petitioner from participating further in tender No.IM&EE/MOF/Mech-WQ-7&8/2021, dated 04.10.2021 as illegal, violative of principles of natural justice etc.
3. This Court has heard Sri A. Satya Prasad, learned senior counsel appearing for the petitioners and Sri P. Raghuram, learned senior counsel appearing for the respondent-Visakhapatnam Port Trust.
PETITIONER’S CASE :
4. Learned counsel for the petitioner Sri Satya Prasad points out that the petitioner is a company which wanted to participate in a tender bearing No.IM&EE/MOF/Mech-WQ-7&8/2021, for mechanization of WQ 7 & WQ 8 Berths. The said tender involved a multi stage process. The first stage was the qualification stage (RFQ stage). The bidders who qualified at this stage were entitled to participate in the second stage, which is the bidding stage (RFP). The petitioner was disqualified at the first stage itself on the ground that they did not disclose certain important material facts. Learned senior counsel points out that this decision of disqualifying the petitioner is not communicated to the petitioner, and that after a caveat was filed and a notice of caveat was served on the petitioner, they realized the fact that they were disqualified. Learned senior counsel submits that the procedure adopted by respondent Visakhapatnam Port Trust is totally wrong. It is submitted that the ground on which the petitioner was disqualified is also not legally and factually tenable. Hence, he prayed for an appropriate order.
5. Learned senior counsel drew the attention of this Court to clause 2.2.2 of the tender conditions which describe the technical, financial and the O&M experience of the bidder. Learned senior counsel submits that the petitioner has fulfilled and met all the stipulations of Clause 2.2.2. Learned counsel submits that an entity called AVCTPL is a 100% subsidiary of the petitioner. The rejection of the petitioner’s present bid by VPT was on the ground that the earlier contract between the said AVCTPL and VPT was terminated and this fact was not disclosed. Learned counsel submits that the caveat petition filed revealed (in paragraph 4 and 6) that Clause 2.2.8 of the bid condition was not fulfilled in the present case. Learned senior counsel argues that clause 2.2.8 is not applicable to the facts and circumstances of the case as AVCTPL has terminated the contract and not vice versa. Relying upon paragraphs 9 to 11 of the writ affidavit, senior counsel argues that it is the AVCTPL which terminated the agreement and not VPT. Learned senior counsel also argues that the petitioner has faithfully and diligently disclosed all the particulars. He also argues that Annexure-I / Appendix-I, contains the following Clause 7 –
“7. A statement by the Applicant and each of the Members of its Consortium (where applicable) or any of their Associates disclosing material non-performance or contractual non-compliance in past projects, contractual disputes and litigation/arbitration in the recent past is given below (Attach extra sheets, if necessary).”
6. Learned senior counsel, therefore, argues in line with paragraph 11 of his writ affidavit that they have disclosed all the facts, arbitrations and there is no concealment of facts. He submits that the action of the respondent-VPT should be set aside for the following reasons –
(A) That these clauses of bid are not contravened / there is no concealment and
(B) That the respondent port trust did not intimate the rejection by a letter or document as required.
7. The learned senior counsel relying upon Atlanta Limited v. Union of India, 2018 SCC Online 8269 argues that Clause 2.2.8 confers unbridled power on the respondent and therefore it is arbit
