TMI Blog2012 (5) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... ed balance-sheet for the said year. All that it could possibly do was to obtain a certificate based on the relevant books, registers, records accounts etc., of the company, which certificate was indeed produced by the said respondent. The High Court has rightly observed that the appellant had not disputed the correctness of the turnover certified by the Chartered Accountant for the year 2010-2011 nor was it disputed that the same satisfied the requirement of the tender notice. therefore, fail and is accordingly rejected. The High Court has, while examining the question of eligibility of respondent No.2 by reference to the execution of the single integrated water supply scheme, recorded a finding that the nature of the work executed by respondent No.2 for Upleta satisfied the requirement of the tender notice. That finding, in our view, is in no way irrational or absurd. We say so because the certificate relied upon by respondent No.2 sufficiently demonstrates that respondent No.2 had designed, and executed an integrated water supply scheme for Upleta which included raw water transmission from intake wells and transmission of treated clear water from WTP including providing, suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sheet of last 5 years showing annual turnover equal to estimated cost of the work and average net worth equal to 40% of the cost of works. 4. In response to the above NIT several applications were received by respondent No.1 for purchase of the tender forms. It is common ground that only six out of the said applicants eventually participated in the pre-bid meeting arranged by respondent No.1. It is also not in dispute that out of the said six bidders only four were eventually found to be eligible. These four included the appellant-Tejas Construction Infrastructure Pvt. Ltd. and respondent No.2-M/s P.C. Snehal Construction Company, Ahmedabad. 5. The tender conditions, inter alia, provided that the bid documents shall comprise three envelopes to be submitted by each of the bidders. Envelope A was to contain the earnest money deposited, Envelope B was to contain the technical bid including qualification documents while Envelope C was to contain the price bid of the bidders. The process of evaluation of the bids started on 7th April, 2011 with the opening of envelopes in the above order. Opening of envelope A was uneventful as all the bidders had furnished the earnest money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance-sheets was substantially complied with inasmuch as certified copies of the balance-sheets for four years had been filed but since the audit for the fifth year i.e. 2010-2011 had not been completed, the certificate issued by the Chartered Accountant for the said year sufficiently complied with the said requirement. It is also asserted that respondent No.2 satisfied the requirement of having executed single integrated water supply scheme for Upleta which included raw water transmission from intake well and transmission of treated clear water from WTP including providing, supplying and laying of pipelines, construction of E.S.R.s, Sumps, Pump houses and providing and erecting pumping machinery. The certificate issued by the Upleta Municipal Council and by the Gujarat Urban Development Mission (GUDM) was relied upon in support of that claim. The High Court has, by the judgment and order under challenge before us, examined both the grounds urged in support of the writ petition and clearly come to the conclusion that respondent No.2 was eligible to offer a bid in as much as it had substantially complied with the requirement of filing the certified copies of audited balance-sheets fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 492, this Court reiterated the principle governing the process of judicial review and held that the Writ Court would not be justified in interfering with commercial transactions in which the State is one of the parties to the same except where there is substantial public interest involved and in cases where the transaction is mala fide. The court observed: 10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work - thus involving larger outlays of public money and delaying the availabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking such decision the State can choose its own method on terms of invitation to tender and enter into negotiations. The following passage from the decision is apposite: The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the period 1.4.2010 to 22.3.2011, had been produced which did not, according to the writ- petitioner before us, satisfy the requirement of the NIT. Rejecting that contention the High Court held that since the balance sheet for the year 2010-11 had not been audited the production of relevant record of the company was a substantial compliance with the stipulation contained in the NIT. The High Court observed: As regards audited balance sheet, it has not been disputed that respondent No.2 submitted audited balance sheets for years 2006-07, 2007-08, 2008-09 and 2009-2010. Respondent No.2 has further submitted certificate issued by its Chartered Accountant in respect of period from 1.4.2010 to 22.3.2011. Certificate is at page 66, which has been issued on the basis of audited books, documents, registers, records, bills and evidences produced before it for verification. Certificate is dated 23.3.2011. It has been pointed out by Shri Vijay Assudani, learned advocate appearing for respondent No.2 that by that time, the financial year 2010-11 was not complete and it was not possible to obtain certified copy of the audited balance sheet. It could not be disputed on behalf of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010-2011 nor was it disputed that the same satisfied the requirement of the tender notice. In that view, therefore, there was no question of respondent No.2 being ineligible or committing a deliberate default in producing the requisite documents to establish its eligibility to offer a bid. The first limb of the challenge to the finding of the High Court on the above aspect must, therefore, fail and is accordingly rejected. 16. That leaves us with the second ground on which the appellant questioned the eligibility of respondent No.2 to offer a bid, namely, the non-execution by respondent No.2 of a single integrated water supply scheme for the requisite value. The appellant s case, in this connection, is two- fold. Firstly, it is contended that the works executed by respondent No.2 for Vyare and Songadh were distinct and different works which did not constitute a single integrated water supply scheme hence could not be pressed into service to show satisfaction of the condition of eligibility stipulated under the tender notice. The alternative submission made by learned counsel appearing for the appellant in connection with this ground is that the work executed by respondent No.2 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out the work of integrated water supply for Upleta Municipal Council for a sum of ₹ 14.97 crores, similarly respondent No.2 have also carried augmentation water supply scheme for Bardoli Incorporation Seva Sadan of ₹ 4.35 crores, integrated drinking water supply scheme for Vyara project of ₹ 6.84 crores, Unjha Water Supply Project of ₹ 13.19 crores, Jaitpur Water Project ₹ 16.25 crores, Songarh Integrated Drinking Water Supply Scheme ₹ 5.21 crores, Vapi Water Works of ₹ 4.00 crores, Jasadan Water Suppply Scheme of ₹ 3.05 crores, Rajula Water Supply Scheme of ₹ 3.83 crores, Idar Water Supply Scheme of ₹ 4.74 crores, Viramgam Water Supply Project ₹ 6.92 crores, Amreli City Pipeline Distribution Work ₹ 6.49 crores, thus the respondent No.2 have executed works of similar nature of ₹ 87.21 crores, whereas the present work was for only ₹ 20.80 crores, additionally respondent No.2 is executing similar work of about ₹ 40.50 crores at Dholka, Dhandhuka, Ankleshwar, Gondal, Jasdan and Dhorangdhra. Thus respondent No.2 is competent to execute the present work, a copy of list of works executed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
