RADHA PRINTERS Vs. STATE OF A.P.
LAWS(APH)-2019-10-2
HIGH COURT OF ANDHRA PRADESH
Decided on October 01,2019

Radha Printers Appellant
VERSUS
STATE OF A.P. Respondents

JUDGEMENT

M. Ganga Rao, J. - (1.)The petitioner, who is unsuccessful bidder, filed this writ petition questioning the letter dated 18.03.2019 issued by the 2nd respondent whereby the petitioner was informed that the 3rd respondent M/s. Hitech Printers, Krishna District alone has been technically qualified, stating that the bids submitted by the 3rd respondent are contrary to clauses 23 and 25 of the Tender Conditions and consideration of the 3rd respondent's bids is illegal and arbitrary.
(2.)The 2nd respondent issued tender notification vide Tender Letter No.01/EB/JNTUA/2019-20, dated 14.02.2019 calling for bids duly prescribing time schedule for submission of the tender bid documents was on or before 2.00 P.M. and opening of the technical bid is at 3.00 P.M. on 28-02-2019. The petitioner has submitted his tender in pursuance of e-procurement Tender Notification No.01/EB/JNTUA/2019-20, dated 14-02-2019. As per Clause 15 of Tender conditions the tenderer has upload tender on e-procurement platform of Sealing and Marking of Bids. Clause 15.2 defines "the bidder shall place two separate envelopes (called inner envelops) marked "Technical bid" and "Financial Bid" and these covers shall be kept in one outer envelope. The inner envelopes will have the following items a) Technical bid, EMD and Tender Fee, b) Financial bid (Format of Section III (A) and Format of Section III (B). Note: Two financial bids shall be submitted one for supply of material F.O.R. at JNTU, Ananthapuramu, and the other one shall quote prices for F.O.R. at Kadapa, Ananthapuramu, Nellore, Kurnool and Chittoor. The petitioner has submitted tender documents as per Clause 15 of Tender conditions. Along with three others, the 3rd respondent is one among them, two other bidders have not submitted technical bids they were disqualified. The contention of the learned counsel for the petitioner is that the 3rd respondent's bids were not in accordance with Clauses 15 and 16 of the Tender Conditions, still the 3rd respondent has been declared as L-1 and the petitioner was declared as L-2 the said letter dated 18-03-2019 is arbitrary and illegal. Cost of the tender document is Rs.20,000/- + 18% GST which comes to Rs.23,600/- apart from EMD amount of Rs.11,000/- by way of Demand Draft Nos.776854 & 776856, dated 19-02-2019. Clause 23.4 of the Tender Conditions states that there should not two prices for the same item, which will summarily be rejected. But the petitioner submitted its tender bids through online and also physically. But, the petitioner quoted the rate per 1000 sheet/ream for Theory Answer Sheet as Rs.7184/- while submitting online bids by inadvertently, but the petitioner quoted the rate as Rs.6184/- correcting in physical bid submission. The petitioner's bid satisfied the tender condition including Format of Section III (A) and Format of Section III (B), which is mandatory as per Clauses 15 and 16 of the Tender Conditions, but whereas the bids of the 3rd respondent are not submitted as per mandatory conditions of the tender document. The 3rd respondent has not submitted its bids in Format III (A) and III (B) of the Tender Conditions and their bids have to be summarily rejected as per Clause 23.2 of the Tender Document. Further the 3rd respondent committed another error/flaw in the Cost Component Sheet, since the 3rd respondent has not mentioned about Packaging and Forwarding Charges as 'inclusive' or 'exclusive' and left the column as the default column, wherein it was mentioned as not applicable and that the other column is regarding GST is concerned, they have mentioned as 'exclusive' in the column-Type with percentage amount at 12.00. Even though the 3 rd respondent has not submitted documents at all as per the tender document, still the name of the 3rd respondent was shown as L-1, which is arbitrary, illegal and non-application of mind. The petitioner was not informed about opening of the financial bid as per Clause 7 of the Tender Conditions, but the petitioner send a letter dated 13.03.2019 to the 2nd respondent seeking information about the rates quoted by the 3rd respondent and other particulars for which the 2nd respondent issued a reply letter dated 18.03.2019 stating that the 3rd respondent alone was technically qualified and that the rates/ prices quoted by the 3rd respondent was shown in Sec.III (A) wherein the grand total is Rs.4,81,10,720/-. As per the calculated from the prices quoted by the 3rd respondent, it comes to Rs.4,81,35,800/-. There is a difference of Rs.25,080/- in the Physical Bid submission and On-line bid submission by the 3rd respondent. Even though the petitioner quoted lesser prices in all the items as per the tender document, when compared with the rates quoted by the 3rd respondent, the aggregate difference of price around Rs.16,00,000/-, still the 2nd respondent accepted the bids of the 3rd respondent as L-1, which is illegal, arbitration and contrary to the tender conditions.
(3.)Sri P. Balaji Varma, learned counsel appearing for the 3rd respondent submits that the writ petition filed by the petitioner is premature as the writ petition is filed on the basis of the letter issued by the 2nd respondent dated 18-03-2019 in reply to the letter of the petitioner dated 13-03-2019 and the relief of mandamus declaring the action of the 2nd respondent in declaring the 3rd respondent as technically qualified is premature and is not liable to be questioned. The impugned letter is only in the nature of a correspondence between the petitioner and the 2nd respondent. A reply of the 2nd respondent dated 18-03-2019 to the letter dated 13-03-2019 of the petitioner cannot be treated as a decision, proceeding or award. Hence, the writ of mandamus is not maintainable to declare the letter dated 18-03-2019 as illegal or arbitrary. He further contended that as per Clause 15 (2) EMD is mentioned as Rs.11,00,000/- and as per Clause 19, the EMD is mentioned as Rs.5,50,000/- only. The petitioner, however, paid Rs.11,00,000/-. The prescription of different EMD cannot be a ground for cancellation of the tender as it is only a discrepancy. However, the petitioner has paid Rs.11,00,000/- EMD as per the tender condition. But the tender document of the petitioner is rejected not on the ground of non-submission of EMD. The 3rd respondent submitted his tender documents in the Format-III A and III B as per the tender conditions of 15 and 16 and the contention of the petitioner that the tender of the 3rd respondent is liable to be rejected as per clause 23 (2) of the Tender Conditions is unsustainable in law and the contention that the 3rd respondent has not submitted the tender document in Format-IIIA and III B are materially incorrect. He further contended that the tender document provided for a cost component element whereunder different component names were listed and the tenderers were required to give their option of applicability, exclusiveness, inclusiveness in percentage rate. In so far as relevancy to the present context is freight charges, insurance charges, packaging and forwarding charges and GST are relevant and applicable and that the petitioner has chosen to opt for not applicable in so far as freight and insurance charges is concerned, the petitioner has opted for inclusion, whereas the 3rd respondent has opted for not applicable for all components and exclusive for GST. The tender price offered by the petitioner was in exclusion of packing and service charges, whereas the tender price offered by the 3rd respondent was exclusive of GST. In other words, except those specifically mentioned the rest are deemed to be inclusive. The understanding of the petitioner and the 3rd respondent insofar as the component are concerned, is clear and have accordingly submitted its tender bids and that the petitioner in the case of components of freight charges and insurance charges has not made any express exclusion or inclusion option, but has retained the option of not applicable and that the petitioner has not alleged that the 3rd respondent's tender bids is in comparison with the tender bids of the petitioner in so far as the price component issue is concerned. Admittedly, the petitioner had quoted a price of Rs.7,184/- while submitting online tender application. After opening of the technical bid and also the financial bid, the petitioner is claiming that the price quoted on the online tender is by mistake and a typographical error and that the price of Rs.6,184/- was mentioned in the physical tender document submitted by him. As per Clause 16 (2) of the tender conditions, the envelop named "financial bid shall comprise of the price bid uploaded on e-tender website i.e. ww.tender.apeprocurement.gov.in. In other words, the mandate is that what is uploaded on e-tender shall also be submitted in the physical form. In other words, e-tender will have supremacy and the same alone will be considered. In view of the admission of the petitioner that the tender price in physical form and e-tender form being two different prices and the price quoted in the e-tender form being admittedly higher than the price quoted by the 3rd respondent cannot be taken as a typographical mistake and upset the tender process. The 2nd respondent has not committed any error in accepting the tender bid submitted by the 3rd respondent and finalizing the same is in accordance with law. The 3 rd respondent is a 30 years old security printer approved by Indian Bank Association and is a reputed supplier of all examinations material to more than 100 Board and Universities all over India and also to various Government Departments i.e. Central and State. The 3 rd respondent is technically qualified for participation in all high security printing works. He further contended that the petitioner is incomparable with that of the 3rd respondent, its competence, strength, capability, expertise in supply of tender stationery material.
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