ORDER
1. Petitioner firm is engaged in civil contract works. First respondent issued a tender notice dated 5.11.2003 inviting bids on ‘E’ Procurement Platform for the work of laying of C.C. Lining with Paver finish for KM 65.590 to KM 72.225 on Priyadarshini Jurala Project (PJP) Left main canal in Mahaboobnagar District. Petitioner submitted his tender before last date i.e., 18.11.2003. On 19.11.2003 petitioner’s technical bid was opened, but when price bids were open on 1.12.2003, petitioner’s bid was not opened. Therefore petitioner filed W.P.No.25506 of 2003 seeking a declaration that the action of respondents in not opening price bid of petitioner as illegal and arbitrary. Writ petition was admitted and notice was ordered in WPMP. In the meanwhile on 5.12.2003, tender dated 5.11.2003 was cancelled by Government. In view of the same, this Court dismissed writ petition on 9.1.2004 as infructuous.
2. First respondent again issued Notice Inviting Tenders (‘NIT’ for brevity) on 17.12.2003 for the same work from eligible contractors. The last date for submission of tenders on ‘E’ Procurement Platform is 31.12.2003. The technical bids were opened on 1.1.2004 and price bids were opened on 5.1.2004. Petitioner submitted his tender. Petitioner apprehends that though his price bid was opened on 1.1.2004, respondents may not open the price bid having regard to the eligibility criteria under condition 25(iii) of NIT. Therefore, petitioner filed present writ petition challenging condition 26(iii) as illegal and arbitrary and also contrary to G.O. Ms. No.94 Irrigation and CAD (PW-COD) Department dated 1.7.2003.
Counter Case
3. This Court, at the time of preliminary hearing on 7.1.2004 directed the learned Government Pleader for Irrigation Department to file counter-affidavit and produce necessary record. Third respondent who invited tenders has since filed counter-affidavit and also produced original NIT of ‘E’ Procurement Platform. Petitioner averments are denied. It is further stated that in the earlier NIT dated 5.11.2003, a condition- was imposed to the effect that contractor must have satisfactorily completed as a prime contractor similar works within block period of five years from 1998-99 to 2002-03 of value not less than Rs. 192.48 lakhs in any one financial year. Even in the present NIT, no new eligible criteria was introduced. While stipulating similar condition, to avoid any confusion, it was mentioned that similar works must have been completed hundred per cent in all respects and it was made clear that the works completed beyond block period i.e., beyond 1.4.2003 will not be considered for financial requirement. The earlier condition was also to the same effect. The allegations of petitioner that in the case of M/s. K. Srinivasa Reddy who did not complete the works and was doing ongoing works was treated as satisfying eligibility criteria, has been denied. It is stated that when the works relating to Rajoli Banda Diversion Scheme Link Canal CC lining were taken up in view of urgency and with a view to provide water to the tail-end ayacutdars, the work was divided into two packages and got executed through different agencies. When the tenders submitted by one of the agency was not satisfying, the requirement of completion of work within block period, Government as a special case exempted M/s. K. Srinivasa Reddy from possessing eligibility criteria of completion of works within block period. In fact the said agency completed works in full, but a part of it was spilled over .to next financial year. Taking into consideration of the urgency, Government issued memo dated 27.9.2003 relaxing the period of criteria. The same was subject-matter of enquiry before Hon’ble Lokayukta who after perusing the entire record found that there are no irregularities in awarding work to M/s. K. Srinivasa Reddy. Petitioner has not filed any reply affidavit denying counter averments.
Submissions in support of petitioner’s case
4. The learned Counsel for petitioner Sri C.B. Ram Mohan Reddy, representing Sri P. Vinayaka Swamy submits that when NIT was issued on 5.11.2003 for similar work, there was a similar condition like condition No.25(iii), but the respondents never intended to exclude those contractors who did not complete hundred percent works. In spite of the same, petitioner’s price bid was not opened on the ground that at the stage of technical bids, petitioner” was disqualified on the ground that he did not complete the required amount of work within the block period. Petitioner challenged the same and respondents with a malice cancelled NIT only to avoid awarding contract to the petitioner. Respondents again issued fresh NIT dated 17.12.2003 imposing new eligibility criteria whereby all the contractors who did not complete the works to the tune of Rs. 183.00 lakhs in any one year during block period of five years stands disqualified. This was done only to eliminate the petitioner at the threshold. He would submit that condition No.25(iii) requiring completion of hundred percent work within block period is contrary to Tender Procedure Rules (hereafter called ‘TP Rules’) issued by Government in G.O. Ms. No.94 dated 1.7.2003 and the tender condition No.25(iii), in any event is arbitrary and illegal. Lastly, he would contend that while inviting tenders for similar works, no such condition was imposed and that M/s K.Srinivasa Reddy, a firm of contractors was allowed works by the same department though the said firm did not specify the condition of completion of works in the block period.
Submissions in support of Respondents’ case
5. The learned Government Pleader Sri A.Veera Swamy submits that the impugned condition or NIT does not in any way contravene TP Rules. Petitioner did not satisfy eligibility criteria of completing works in one year and therefore is not entitled to challenge the tender process. So as to explain the purport of earlier condition, respondents have clarified saying that hundred percent work ought to have been satisfactorily completed within block period. He would nextly contend that as per tender conditions, a tendering contractor is required to produce the details of ongoing works. To satisfy the said requirement, petitioner has produced a certified issued by the Superintending Engineer and Executive Engineer in September 2003 and the same shows that as on the date of filing tenders, petitioner executed work upto the end of 31.8.2003 to the tune of 662.13 lakhs out of estimated value of work of Rs.855.61 lakhs for the work of rehabilitation and modernization of Kakatiya Canal Package N.III-12C. Petitioner also sought for extension of time upto 15.6.2004. Therefore, petitioner does not satisfy the condition imposed in NIT. It is also contended that allotment of work to M/ s K.Srinivasa Reddy in respect of Rajoli Banda Diversion Scheme is altogether under different circumstances and the same has no parity with the case of petitioner.
Controversy in the case
6. Before considering the questions that are thrown up by the pleadings and oral submissions, it is necessary to pin point the controversy in the case. Pursuant to NIT dated 5.11.2003, petitioner submitted tenders enclosing the work done certificate dated 16.9.2003 issued by Executive Engineer, Irrigation Division, Dharmapuri which was countersigned by the Superintending Engineer of Godavari Valley Circle-II, Jagtial. It was considered by third respondent and having regard to eligibility criteria as contained in NIT dated 5.11.2003, petitioner’s price bid was not opened. Hence the petitioner filed Writ Petition No.25506 of 2003 challenging the action of Superintending Engineer in not opening the price bid. This Court admitted the writ petition, but did not stay the tender process. After filing writ petition, tender was cancelled and fresh NIT dated 17.12.2003 was issued incorporating same eligibility criteria. Be it noted, though the learned Counsel for petitioner refers to Col.25(iii) of NIT dated 17.12.2003, it would be better to refer to tender schedule a copy of wh’ich is placed before this Court at the time of arguments.
7. Para 19.2 gives eligibility criteria (same is shown as para 12 in the tender notice) which reads as under:
19.2 : Qualification criteria :
To qualify for the award of the contract each bidder in the same name and style should have good experience in execution as original agency in similar works in State and Central Government during the last five years from 1998-1999 to 2002-2003 financial years updated to 2003-2004 (i.e., they should be immediately preceding the financial year in which tenders are invited), satisfying the qualification shown under para ‘Bid Capacity’ only are eligible to tender.
(a) Satisfactorily completed as a Prime-Contractor similar works (within above block period) of value not less than Rs. 192.48 lakhs in any one financial year, updated to current price level 2003-2004.
(b) Executed in any one financial year, the following minimum quantity of works.
1. Earth work, excavation and embankment : 23,900 Cum
2. C.C. Lining with paver : 69,500 Sqm.
8. In the NIT dated 17.12.2003, para 12 shown (as Col.25(iii) of E’ Procurement Platform) reads as under:
12. Eligibility criteria:
To qualify the consideration of Award of the Contract each tenderer should fulfill the following criteria;
(i) Assessed available bid capacity as per formula (2AN-B) should be greater than the Estimated Contract value.
(ii) The details and certificates are to be furnished as per the pro forma available in the tender schedules.
(iii) The bidder should have satisfactorily completed similar works (100% completed in all respects) within the block period for the value not less than Rs. 193.00 lakhs as a Prime-Contractor in the same name and style in any one year during the Financial Year 1998-99 to 2002-2003 (BLOCK PERIOD). The works completed beyond this block period i.e., beyond 1.4.2004, will not be considered for financial requirement.
(iv) Financial turnover on works/work of ongoing works will not be considered.
(v) The bidder should have executed the following minimum quantities in any one year during the financial years 1998-1999 to 2002-2003.
(vi) 1. Earth work excavation and embankment
: 23900 Cum.
2. C.C. Lining with paver: 69,500 Sqm.
9. The purport of para 12 of NIT or para 19.2 of tender schedule is that to qualify for consideration of award of contract, a tenderer ‘should, inter alia have satisfactorily completed similar works in the block period for the value not less than 192.48 lakhs as prime contractor in the name and style in any one year during financial year in the block period of five years from 1998-99 to 2002-03. There is no controversy about this interpretation.
10. Coming to the eligibility in NIT dated 17.12.2003, the purport of criteria is same, but Government added an extra sub-clause to the effect that financial turnover on works/work of ongoing works will not be considered and that tenderer must have acquired hundred percent work in all respects in the block period for the value not less than Rs. 193.00 lakhs as prime contractor in any financial year during block period of five years from 1998 to 2003.
11. Ignoring the facts of present case, what is clear is that only those contractors who have satisfactorily completed the work of laying C.C. Lining with paver finish for Irrigation Canal for the value of not less than Rs. 193.00 lakhs in any one year during block period is alone eligible. The controversy is however with regard to the words “satisfactorily completed similar works”. This aspect of the matter would be dealt with little while later.
Point that arise in the case
Whether the impugned eligibility criteria is contrary to G.O. Ms. No. 94 dated 1.7.2003.
12. So as to streamline and revise tender procedures with a view to simplify procurement, achieve greater transparency, reduce delay, improve quality of contraction and ensure timely completion of projects, Government of A.P. appointed a Cabinet Sub-Committee vide their orders in G.O, Ms. No. 398 dated 29.11.2000. The said committee reviewed the existing procedures in respect of registration of contractors, qualification of criteria, verification of certificates, standard bidding documents, tender premium, purchase of tender documents, prevention of cartel formation, deduction of tax at source etc., and submitted its report making recommendations for streamlining tender procedures. Government accepted recommendation and in modification of their earlier orders dealing with various subjects issued G.O. Ms. No. 8 dated 8.1.2003 covering various aspects. Again by G.O. Ms. No. 94, Government issued comprehensive orders on all issues in supercession of all Government orders which were earlier in force. G.O. contains seven Annexures. Annexures-IV to VII are forms to be used in different contexts. Annexure-I contains tender procedures and Annexure-II deals with registration of contractors. It is not necessary to elaborately refer to various T.P. rules for the purpose of this case.
13. Learned Counsel for petitioner places reliance on Rule 10 of Annexure-I of T.P. rules, which reads as under:
(10) Qualification criteria
A. To qualify for award of the Contract, each bidder in his name should have, during the last five years (specified financial years i.e., they should be immediately preceding the financial year in which tenders are invited).
(a) Satisfactorily completed as a prime contractor similar works of value not less than Rs. /- @ (usually not less than 50% of Estimated value of contract) in any one year.
(b) Executed in any one year, the following minimum quantities of works.
– Cement concrete including RCC and PSC Cum.
– Earth work in both excavation and Embankment Cum.
– (relevant principal items be indicated).
– (usually 50 percent of the expected peak quantities of construction per year),.
14, His submission with regard to above criteria is simple. He submits that the above rule does not permit any tendering authority in the State to impose additional conditions like hundred percent satisfactory completion of work and non-consideration of financial turnover of ongoing works beyond 1.4.2004. I am afraid I cannot agree with the said contention. As per 10-A as seen above, to qualify for award of contract, each bidder in his name should have satisfactorily completed as prime contractor for similar works of value of not less than usually fifty percent of the estimated value of contract in any one year. It is interesting to notice that Rule 10-A uses words “specified financial year/years immediately preceding the financial year” in which tenders are invited and that similar works ought to have been satisfactorily completed. Be it noted that NIT dated 5.11.2003 and NIT dated 17.12.2003 both contain the same phraseology which cannot have different meaning. When Rule 10-A of T.P., Rules mentions that satisfactory completion of similar work to the tune of fifty percent of the value immediately preceding year in which tenders are invited, the only inference that can be drawn is that by the end of block period in this case 31.3.2003, a bidder ought to have satisfactorily completed. It is not denied that every civil contractor has to covenant with Government that he would claim completion certificate only after completion of work on 31.3.2003. Further, there is no scope to introduce the words like “satisfactorily completed at least fifty percent of work or at least seventy five percent of work”. Satisfactorily completed works do not mean yet to be completed work nor part completed works. Rules stipulate satisfactory completion of hundred percent work before 31.3.2003 and such works should be similar work whose estimated value is at least fifty percent of the work in respect of which tenders are invited.
15. It is well settled that tender conditions are binding administrative instructions. While interpreting these tender conditions including eligibility criteria, same principles of statutory interpretation are applicable. The Court must not assume that the words used are unnecessarily, and must always proceed on the premise that the author of tender conditions has not used any superfluous phrases, terms or words. A reference may be made to the following observations in Ramana Dayaram Shetty v. The Internatinal Airport Authority of India, .
It is a well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document “and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The Court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable.
16. It is also well settled that the eligibility criteria must be strictly complied with and any bidder who does not satisfy the eligibility criteria must be disqualified. It is no doubt true that while issuing NIT dated 17.12.2003, though the same language was used, the competent authority thought it fit to make it clear that hundred percent completion of work will only be treated as satisfactory completion and that works completed beyond 1.4.2004 will not be considered for financial requirement. It was also made clear that financial turnover on works/work of ongoing works will not be considered. Even if the words in parenthesis are excluded, still the criteria vide clause 12(ii) giver the same meaning. As already held by me, when the conditions prescribe that a bidder should have satisfactorily completed means, it is satisfactory completion of hundred percent works and not completion of part of work. I therefore reject the contention of learned Counsel for petitioner that such a condition was introduced only to eliminate the petitioner from tenders. I also reject the contention that condition 25(iii) equivalent to condition 12(iii) is contrary to G.O. Ms. No. 94 dated 1.7.2003.
17. Though the learned Counsel contends that eligibility criteria in NIT dated 17.12.2003 is arbitrary and irrational, in the absence of any substantiation, this Court cannot hold that condition is arbitrary. The attention of this Court is invited to NIT dated 24.12.2003 issued by the Construction Circle, Dowleswaram inviting tenders for earth work including construction, of CM&CD works as well as NIT dated 23.12.2003 issued by R&B, NH Circle, Ongole for periodical renewals of national highway to contend that in other tenders such condition was not incorporated.
18. I have perused the eligibility criteria in these two tender notifications. The same would not support the contention of learned Counsel for petitioner. In the tender dated 24.12.2003 issued by Construction Circle of Dowleswaram, it is clearly mentioned that bidder should have satisfactorily completed works of similar nature in any one year during block period. A similar condition is incorporated in the tender floated by R&B NH Circle, Ongole. The submission, therefore is liable to be rejected.
19. It is also submitted by the learned Counsel in the case of M/s. K. Srinivasa Reddy, the department did not insist upon eligibility criteria of satisfactory completion of hundred percent works. The relevant pleading in the affidavit accompanying writ petition reads as under:
I submit that the respondents herein earlier awarded work relating to RDS Link Canal C.C. Lining from K.M. 53.25 to 56.775, in Mahaboobnagar to M/s K.Srinivasa Reddy, when these are on going works pertaining to the certificate issued in favour of the firm. Even though the petitioner also in similarly situated circumstances submitted certificate which is satisfying the eligibility criteria, the respondents are not accepting the same and acting contrary to the procedure being followed and the eligibility criteria described in the G.O. Ms. No. 94 dated 1.7.2003.
In the counter-affidavit filed by third respondent while denying, it is stated as under:
In reply to the averments in para 10 of the petitioner’s affidavit, it is submitted as follows. The allegations in this para are totally incorrect. When the works relating to Rajoli Banda Diversion Scheme Link Canal CC lining were taken up, in view of the urgency and with a view to provide the water to the tail end ayacutdars under the RDS canal, who have been suffering for want of water for the last 20 years, the work was divided into two packages and got executed through different agencies. When the tender submitted by one of the agencies was not satisfying the requirement of completion of work within the block period, the Government as a special case, exempted the said agency from possessing the eligibility criteria of completion of works within the block period. In fact, the said agency completed the said works in full, however a part of it was spilled over to the next financial year. The Government after taking into consideration all the aspects of the case and in view of the urgency, issued orders vide Memo ,No. 16350/Irr.II(2)/2003 dated 27.9.2003 relaxing the block period criteria. The same issue was also the subject-matter of the Hon’ble Lok Ayukta and after perusing the entire records, the Hon’ble Lok Ayukta found that there were no irregularities. The petitioner -herein cannot compare his case with that of RDS Link Canal Works. The contentions are ‘ wholly untenable.
20. A reading of the counter averments would show that petitioner herein and M/s. K. Srinivasa Reddy cannot be considered as similarly situated contractors. The classification satisfies the rationality test as well as nexus test and any argument of discrimination is misconceived. M/s. K. Srinivasa Reddy was engaged by Government to complete Rajoli Banda Diversion Scheme work on cnrergcncy basis and therefore was exempted from the criteria having regard to the fact that a part of work he was doing got spilled over to next financial year. An exemption to general rule cannot be a ground to invalidate executive action on the ground of discrimination. Indeed petitioner never asked for exemption though as per work done certificate produced by him, the competent authority extended time upto 15.6.2004 for completion of work of Kakatiya Canal Package works is yet to be completed. Further, when the Government has exercise discretion having regard to exigencies of situation, it would be improper for this Court to find fault with Governmental action, especially when the petitioner is not one of the bidders for Rajoli Banda works.
21. In the result, for the above reasons, the writ petition fails and it is accordingly dismissed. There shall be no order as to costs.