JUDGEMENT

- (1.) 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, dtd. 15/3/2021 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, dtd. 21/1/2021 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.30.00 Crores plus firm should furnish latest solvency certificate. The respondents issued corrigendum - I dtd. 8/2/2021 amending the eligibility criteria mentioned in Sec. - 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 9/3/2021in 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 dtd. 10/3/2021. 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, dtd. 15/3/2021. 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.100.00 Crores and the firm should furnish latest solvency certificate for a minimum value of Rs.39.00 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 and B (R-1) Department, dtd. 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, dtd. 1/7/2003 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 Corporation by supplying 54,61,268 number of school bags for a total purchase order of Rs.75,22,50,226.00. However, due to aforesaid eligibility criteria incorporated in the tender notification dtd. 15/3/2021, the petitioner was not in a position to participate in the tender. Supply of school bags is a goods contract and after inspecting the material that is going to be supplied in the pre-bid meeting and after satisfying with the material only the work order will be given to the bidders. Even though estimated contract value is only Rs.78.00 Crores the respondent authorities imposed an unreasonable condition that the average annual turnover of the firm should be more than 100 Crores for the last three years and it should furnish solvency certificate for a minimum value of Rs.39.00 Crores. The said condition is illegal. Due to unreasonable conditions, the petitioner and other bidders could not participate in the tender and hence the writ petition.
(3.) The 2nd respondent filed counter opposing the writ petition contending thus: (a) The Government of Andhra Pradesh, Department of School Education floated e-procurement tender notification No.SS-16021 / 3 / 2021- CMO SEC-SSA/1 /2021-22, dtd. 21/1/2021 for supply of school bags to students of classes I to X to different schools during the academic year 2021-22 under Jagananna Vidya Kanuka scheme for 47.32 lakh students across the State. The said notification was issued in consonance with Samagra Shiksha under Government of India's flagship programme for achievement of Universalization of elementary education. The Centre and State Governments contribute funds in the ratio of 60:40. The procurement of school bags under Samagra Shiksha is governed by the manual of Financial Management and Procurement (F.M.P) for the scheme of Samagra Shiksha. The procurement is governed by procurement guidelines as provided in the manual subject to overriding provisions as contained in GFR 2017 and manual for Procurement of Goods and works, 2017 and manual for procurement of consultancy and other services, 2017. The grants under the scheme are governed by the various provisions in the GFR and therefore adherence to the GFR provisions is mandatory wherever applicable. The petitioner's reliance on G.O.Ms.No.94 is baseless as the subject matter pertains to the procurement under SS i.e., Samagra Shiksha. (b) The 2nd respondent who is the State Project Director, Head of the SIS, APSS submitted a proposal for constitution of a high level Committee (for short 'Committee") to prepare, evaluate and approve the tender documents pertaining to the procurement and supply of students kits. The Government of Andhra Pradesh accordingly issued G.O.Rt.No.58, dtd. 6/3/2020 to constitute Committee. The Government of Andhra Pradesh has further issued a Memo No.1186027/Prog.11/A2/2021-22, dtd. 25/1/2021 and re-constituted the Committee to implement the project under APSSA. The APSSA is at liberty to frame its own procedure for procurement under the scheme to implement in the State. The Committee after considering the manuals and guidelines governing the sphere, has framed certain tender conditions. Whereas, the G.O.Ms.No.94 deals with the works contracts. The Committee after due deliberations derived its own procedure for procurement of school bags and issued tender notification dtd. 21/1/2021 and also subsequent tender notification dtd. 15/3/2021. (c) Tender Notification dtd. 21/1/2021 was issued inviting tender-cum-reverse auctioning in e-procurement system from the original manufacturers / registered firms who are registered in India for supply of school bags. The bid was published on 22/1/2021, the uploading of corrigendum / addendum if any on 8/2/2021 and bid closing date was 10/2/2021. Pre-qualification bid opening was given on 10/2/2021 and technical evaluation of bid was fixed on 11/2/2021. The writ petitioner did not even participate in the tender. (d) In response to tender notification, 5 firms submitted applications. During the course of technical evaluation, no bidder has fulfilled the tender eligibility conditions and hence the matter was placed before the Committee on 24/2/2021 and the Committee decided to cancel the bid as no bidder was qualified in technical evaluation and decided to float a short tender for procurement of school bags. The Committee has approved the following conditions during its meeting held on 12/3/2021: (i) The average annual turnover of the firm during the last three years (2017-18, 2018-19 and 2019-20) should be more than Rs.100.00 Crores. (ii) The bidder shall have experience in supply of school Bags (Back pack) or similar bags. They must have satisfactorily executed orders to any Government organization /Department / PSU / body of both central and State Governments / Private reputed organization with a value of Rs.5.00 Crores in one of the last 3 financial years (2017-18, 2018-19 and 2019-20). Proof of that shall be submitted. (iii) The firm should furnish latest solvency certificate for a minimum value of Rs.39.00 Crores (50% of ECV) issued by scheduled bank. (e) Accordingly, a short tender notification was floated on 15/3/2021 and a corrigendum was issued on 20/3/2021 and the bid was closed on 23/3/2021. The pre-qualification bid was opened on 23/3/2021 and technical evaluation was conducted on 24/3/2021. A total number of 6 firms have participated in the tender and five firms were qualified in technical evaluation held on 24/3/2021. Thereafter the financial bid was opened on 25/3/2021 and reverse auctioning was conducted on 26/3/2021 wherein the 4th respondent was declared as L1 for quoting the least price for Rs.66,71,27,054.00 i.e., Rs.144.60 (small bag), Rs.148.86 (medium bag) and Rs.153.86 (large bag). The biding process was closed on 26/3/2021 and SPD APSS have issued work order to the 4th respondent on 8/4/2021 and agreement was entered into on 16/4/2021. The 4th respondent has started supplying the specified school bags and it is nearing completion. The entire process will be completed by 11/8/2021. As against the petitioner impugning the 2nd tender conditions, the respondent in his counter stated that the Committee has disclosed reasons for cancellation of earlier tender and floating a short tender with impugned conditions. The Committee cancelled the tender notification dtd. 21/1/2021 as none of the bidders was qualified in the technical evaluation and therefore the Committee decided to float a short tender considering the limited time available for supply. The Committee discussed to improve the tender conditions so that qualified, big companies may participate for better quality and timely supply. It was only to get more efficient firms to implement the programme, the impugned tender conditions were included and the entire process of tender was fair and transparent. The petitioner filed writ petition after entire tender process was completed and therefore he has no locus standi to file the writ petition as there is no violation of Article 14 or 19 as contended. (f) The respondent categorically denied the petitioner's averment of his participating in the earlier tender notification dtd. 21/1/2021. No public interest is involved and its only the private interest of the writ petitioner is being agitated and hence the writ petition is not maintainable. Thus respondent prayed to dismiss the writ petition. ;


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