Point of law: Entire process of awarding the contract by respondent No.2 in favour of Respondent No.3 cannot be accepted as valid

JUDGMENT :

This writ appeal is directed against the order dated 02.11.2022 passed in W.P.No.20333/2022 (GM-TEN) by which the writ petition filed by the appellant questioning award of tender by the respondent No.2 in favour of the respondent No.3 for supply of Ash Handling Package forming part of installation of a Thermal Power Station in the State of Telegana by respondent No.5 has been dismissed.

2. Brief facts of the case of the appellant are as under:

2.1 That the appellant is a company specialized in providing Turnkey solutions with respect to Ash Handling Plant to various industries such as power, cement, alumina, steel including thermal power station with solution to reduce environmental pollution with conservation of energy.

2.2 That respondent No.5-Telangana State Power Generation Company Ltd., with an object of setting up of a Thermal Power Station of 4,000 MW capacity (5 units of MW each) at Yadadri, Nalagunda District, Telegana awarded a contract in the year 2017 to the respondent No.1 company for design, engineering, supply, erection and commissioning. A portion of which for Ash Handling Plant and Coal Handling Plant is being executed by respondent No.2-Bharath Heavy Electronics Ltd.,. That the entire Plant was to be completed and commissioned by October 2021. However, the same has not been completed as of date. Respondent No.6-Tata Consulting Engineers Limited has been appointed as a consultant for the aforesaid work.

2.3 Issue in the present appeal pertains to subcontract sought to be awarded by respondent No.2 for setting up of Ash Handling Plant in the said Thermal Power Station at Yadadri. Initially, respondent No.2 had issued Notice Inviting Tender dated 22.08.2018 in which appellant and three others had participated. However, the said tender was cancelled. Thereafter, respondent No.2 had issued another Notice Inviting Tender on 05.03.2020 wherein appellant and one M/s.Indure Private Limited had participated. Though in the said process the contract was awarded to M/s.Indure Private Limited since the said company did not perform the contract, the same was terminated. As such, the respondent No.2 issued yet another Notice Inviting Tender dated 06.01.2022. The appellant company along with one M/s.DC Industrial Plant Service Pvt. Ltd., had participated. Though, appellant company was found capable and suitable to carry out the project work the contract was not awarded and the tender was recalled and cancelled. Subsequent to cancellation as above, respondent No.2 issued present Notice Inviting Tender dated 24.06.2022 (hereinafter referred to as NIT for reference) produced at Annexure-C. Respondent No.2 had also issued Pre-Qualification Requirement (PQR) for bidders along with the said NIT. The General conditions and Special conditions of the contract are also produced as Annexures-D, E and F respectively.

2.4. In furtherance to the Notice Inviting Tender two participants namely, appellant-company and a consortium of Respondent No.3 and Respondent No.4 submitted their technical and price bids which were opened on 27.07.2022 and 26.08.2022 respectively and were evaluated thereafter.

2.5. That since respondent No.3 did not possess required technical qualification, it entered into a Consortium Agreement with respondent No.4. Thus, the consortium of respondent Nos. 3 and 4 is a partnership of an Indian company namely, M/s.BTL EPC Ltd., and a Chinese company namely, M/s.Fujian Longking Company Ltd., formed specifically for the purpose of participating in the project. Copy of the Consortium Agreement is produced at Annexure-G.

2.6. It is the case of the appellant that the respondent No.2, with an intention of victimizing the appellant by denying the award of contract to the appellant, is hastily seeking to award the contract to the consortium of respondent Nos. 3 and 4 though they did not technically qualify and had not compl