Madras High Court
Aar Transport Company vs The Managing Director
W.P.(MD)Nos.21944, 21946 and 23628 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 18.11.2024
Delivered On : 18.02.2025
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)Nos.21944, 21946 and 23628 of 2024
and
W.M.P.(MD)Nos.18588, 18589, 18590, 18591, 20006 and 20007
of 2024
W.P.(MD)No.21944 of 2024:-
AAR Transport Company,
Represented by its Sole Proprietor,
A.Ranjith,
S/o.Arumugam,
L1/53 TNHB Colony Podhigai Nagar,
Koodal Nagar,
Madurai – 625 018. ... Petitioner
Vs.
1.The Managing Director,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai – 107.
2.The Deputy Collector,
Tamil Nadu Civil Supplies Corporation,
Regional Office,
Virudhunagar District.
3.M/s.Kandasamy & Co.,
Door No.2/70, A-6 GSK Complex,
Near Old RDO Office Kozhinjipatti,
Andagalur Gate Post Rasipuram (TK),
Namakkal District – 637 401. ... Respondents
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
PRAYER : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
pertaining to the impugned order in Rc.No.C1/0895/2023 dated
28.06.2024, passed by the 2nd respondent and quash the same as illegal and
consequently direct the 2nd respondent to call for fresh tenders within the
time stipulated by this Court.
For Petitioner : Mr.O.R.Gokul Abimanyu
For Mr.Manoharan
For 1st Respondent : Mr.K.R.Buduru Zaman
Standing Counsel
For 2nd Respondent : Mr.P.Veera Kathiravan,
Additional Advocate General
For Mr.S.Mohan Kumar
Standing Counsel
For 3rd Respondent : Mr.H.Arumugam
W.P.(MD)No.21946 of 2024:-
AAR Transport Company,
Represented by its Sole Proprietor,
A.Ranjith,
S/o.Arumugam,
L1/53 TNHB Colony Podhigai Nagar,
Koodal Nagar,
Madurai – 625 018. ... Petitioner
Vs.
1.The Managing Director,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai – 107.
2.The Deputy Collector,
Tamil Nadu Civil Supplies Corporation,
Regional Office,
Virudhunagar District.
3.M/s.Karthikeya Enterprises,
No.233/6, T.Kailasapalayam,
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
Salem Road,
Tiruchengode,
Namakkal District – 637 209. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
pertaining to the impugned order in Rc.No.B1/02605/2023, dated
21.06.2024, passed by the 2nd respondent and quash the same as illegal and
consequently direct the 2nd respondent to call for fresh tenders within the
time stipulated by this Court.
For Petitioner : Mr.O.R.Gokul Abimanyu
For Mr.Manoharan
For 1st Respondent : Mr.K.R.Buduru Zaman
Standing Counsel
For 2nd Respondent : Mr.P.Veera Kathiravan,
Additional Advocate General
For Mr.S.Mohan Kumar
Standing Counsel
For 3rd Respondent : Mr.Ajmal Khan, Senior Counsel
Mr.V.S.Rishikesh
W.P.(MD)No.23628 of 2024:-
A.K.M.K. Transports,
10/8, Ramani Nagar,
M.C.Road, Thanjavur,
Thanjavur District 613 202,
Represented by its Partner,
A.L.Sivakumar. ... Petitioner
Vs.
1.The Managing Director,
Tamil Nadu Civil Supplies Corporation,
Head Office,
Chennai Metro Rail Administrative Office,
Poonamallee High Road,
Koyambedu,
Chennai – 600 107.
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
2.The Senior Regional Manager,
Tamil Nadu Civil Supplies Corporation,
Thanjavur Office,
Thanjavur.
3.Kandasamy & Co.,
Door No.2/70, A/6, GSK Complex,
Near Old RDO Office,
Kozhinjipatti,
Andagalur Gate 637 401
Rasipuram (TK),
Namakkal District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records of
the 2nd respondent in proceedings nr.K.f.vz;.G3/9394/2023 dated
24.06.2024 and quash the same as illegal, arbitrary and unenforceable,
consequently direct the respondents 1 and 2 to call for or issue fresh
tenders.
For Petitioner : Mr.V.R.Vijaya raghavan
For 1st Respondent : Mr.K.R.Buduru Zaman
Standing Counsel
For 2nd Respondent : Mr.P.Veera Kathiravan,
Additional Advocate General
For Mr.S.Mohan Kumar
Standing Counsel
For 3rd Respondent : Mr.H.Arumugam
COMMON ORDER
Challenging the proceedings of the second respondent in
Rc.No.C1/0895/2023 dated 28.06.2024, Rc.No.B1/02605/2023, dated
21.06.2024, nr.K.f.vz;.G3/9394/2023 dated 24.06.2024 respectively, these
Writ Petitions are filed.
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
2.The writ petitioner in W.P.(MD)Nos.21944 and 21946 of 2024 are
one and the same.
W.P.(MD)No.21944 of 2024:-
3.The petitioner is the sole proprietor of M/s.AAR Transport Company,
having its registered office at Madurai and the transport company is engaged
in the business of transportation and movement of commodities for more
than a decade. On 09.06.2023, an e-tender notification bearing
No.C1/0895/2023, was published in the official website by the second
respondent, inviting bids for the appointment of transport contractors for
transportation of paddy custom milled rice, coarse grains, gunnies and
stocks related to procurement activities from various direct purchase
centres, storage points, buffer godowns, rail head wagons to various storage
points, godowns, modern rice mills etc., within the district and outside the
district as entrusted by the Tamil Nadu Civil Supplies Corporation, as
specified in the nature of work for the period from July 2023 to July 2025.
On 02.08.2023, the office of the first respondent vide proceedings in
Rc.MT10/018188/2023 bearing Circular No.32 of 2023, issued a circular
outlining the directives to the tender accepting authorities to adhere to the
definition of domestic enterprise as defined in Section 2(aa) of the Tamil
Nadu Transparency in Tenders Act, 1998, r/w. the proviso to Section 10(2)
of the Act, while evaluating the tenders submitted by the prospective
tenderers.
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
4.Further the second respondent issued a Corrigendum in e-tender
No.C1/895/2023, wherein the bid submission end date and bid open date
was modified. The bid submission end date was on 31.07.2023 and opening
date was on 01.08.2023. The petitioner transport company applied for the
said tender on 29.07.2023, by uploading all the documents necessary for
the e-tender in the concerned e-procurement website. However, after the
submission of the petitioner’s e-tender, he was not provided with any
updates with regard to the tender with respect to the Virudhunagar Region.
While being so, during the last week of July 2024, the petitioner came to
know that the third respondent was carrying out the transportation
activities for the second respondent in Virudhunagar region. On enquiry
with the second respondent office, the petitioner was informed that the
second respondent had passed the impugned work order in
Rc.No.C1/0895/2023 dated 28.06.2024, in favour of the third respondent,
for the movement of commodities for the period of 2 years in Virudhunagar
region and the third respondent had also given consent letter accepting as
transport contractor for Virudhunagar region. Challenging the same, this
Writ Petition came to be filed.
W.P.(MD)No.21946 of 2024:-
5.The second respondent in their official website published an e-
tender notification bearing No.B1/02605/2023 on 09.06.2023, for the Theni
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
region for the appointment of transport contractors for transport of paddy
custom milled rice, coarse grains, gunnies and stocks related to
procurement activities from various direct purchase centres/storage
points/buffer godowns/rail head wagons to various storage
points/godowns/modern rice mills, etc., within the district and outside the
district as entrusted by the Tamil Nadu Civil Supplies Corporation, as
specified in the nature of work for the period from July 2023 to June 2025.
Subsequently, the second respondent issued a Corrigendum bearing the bid
submission end date and the bid open date was modified. The bid
submission end date was on 09.08.2023 and bid opening date was on
10.08.2023. The petitioner transport company submitted his e-tender
documents on 29.07.2023, by uploading all the necessary documents in the
concerned e-procurement website. However, during the last week of July
2024, the petitioner was shocked to understand that the third respondent
was carrying out the transportation activities for the second respondent in
the Theni region. On enquiry with the second respondent office, the
petitioner was informed that the second respondent had passed the
impugned work order in B1/02605/2023 dated 21.06.2024, in favour of the
third respondent, for the movement of commodities for the period of two
years at Theni region and the third respondent had also given consent letter
for accepting himself as the transport contractor for Theni region. Though
the petitioner is a qualified person to be selected as a transport contractor
for the particular area, he was not provided with any updates with regard to
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
the tender. Hence, challenging the impugned order dated 21.06.2024, this
Writ Petition is filed.
W.P.(MD)No.23628 of 2024:-
6.The petitioner is a transport contractor. An e-tender notification was
published by the second respondent on 09.06.2023, for selection of eligible
transport contractors for transportation of paddy etc. The last date to
submit the bid was 09.08.2023. The petitioner duly submitted his
bid/tender before the last date with all necessary documents through the
concerned e-website. On 24.06.2024, the second respondent passed an
order, declaring the third respondent as a successful tenderer and transport
contractor for the Thanjavur area. On 08.07.2024, the petitioner’s tender
summary/report was uploaded rejecting the petitioner’s tender due to
technical reasons. Challenging the impugned proceedings of the second
respondent bearing No.G3/9394/2023 dated 24.06.2024, declaring the
third respondent as successful tenderer issuing work order to him, this Writ
Petition is filed.
7.The learned counsel for the petitioner in W.P.(MD)Nos.21944 of
2024 and 21946 of 2024 submitted that, the various provisions of Tamil
Nadu Transparency in Tenders Act, 1998, were flouted in awarding the
contract to the third respondent for the purpose of passing the impugned
orders. As far as the Writ Petition in W.P.(MD)No.21944 of 2024 is
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024concerned, the bid opening date was on 01.08.2023. Neither the date of
rejection of other tenderers including the petitioners for technical reasons
was disclosed by the respondents concerned at any point of time nor the
rejected tenderers were intimated in this regard. However, it is shocking to
understand that the impugned work order came to be issued in favor of the
third respondent on 28.06.2024, violating all the relevant tender Rules and
Act.
8.As far as Writ Petition in W.P.(MD)No.21946 of 2024 is concerned,
the same is with respect to the tender for the selection of transport
contractors in the area of Theni and the date of opening the bid was
10.08.2023. Even in the instant case, the respondents have not chosen to
communicate the rejection of the other tenderers including the petitioner
and the reason for the same, however, proceeded to pass the impugned work
order dated 21.06.2024, in favor of the third respondent. The learned
counsel for the petitioner categorically submitted that the provisions of
Tamil Nadu Transparency in Tenders Act, 1998, are not at all followed
before awarding contract to the third respondent. There is a complete
violation of the provisions of the Act and hence, the contract ultimately
awarded to the third respondent is vitiated by law. He submitted that the
combined reading of Rule 26 of the Tamil Nadu Transparency in Tender
Rules, 2000 and Clause 28 of the tender notification, would make it clear
that the evaluation of tenders and awarding of contracts should be
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024completed within a period of 90 days. Though the tender was opened on
10.08.2023 at 11 a.m., the contract was awarded only on 21.06.2024. The
contract ought to have been awarded within 90 days from 10.08.2023 and
the same was not done. Even assuming that the second respondent has got
an extension for a further period of 180 days, the second respondent even in
that case, has awarded the contract belatedly, this itself would make the
tender invalid and pressed for quashing the impugned order dated
21.06.2024 in W.P.(MD)No.21946 of 2024.
9.As far as the Writ Petition in W.P.(MD)No.21944 of 2024 is
concerned, even in that case the tender was opened on 10.08.2023, however
the impugned work order was issued in favor of the third respondent on
28.06.2024, violating the mandates of Rule 26 of the Tamil Nadu
Transparency in Tender Rules, 2000, r/w Clause 28 of the tender
notification and on similar grounds, he pressed for allowing the Writ
Petition.
10.The learned counsel for the petitioner in W.P.(MD)No.23628 of
2024 submitted that the last date for submitting the tender bid was on
09.08.2023 and the tender bid was opened on 10.08.2023. During the
technical bid opening on 10.08.2023, all the tenders except that of the third
respondent came to be rejected without any rhyme or reason and the
respondents did not choose to communicate the reason for rejection of the
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024various tenderers to the respective tenderers. However, the tender
summary/report was uploaded only on 08.07.2024, after the impugned
order came to be passed in favor of the third respondent on 24.06.2024. The
price bid was opened on 21.08.2023 and the impugned work order in favor
of the third respondent came to be issued on 24.06.2024, that is, after 180
days from the date of opening the tender bid on 10.08.2023. Though the
tender document contemplates to cover only the period from 01.07.2023 to
June 2025, the work order was given to the successful bidder, that is, the
third respondent for a prolonged period. Without publication of fresh tender
and without notifying the uncovered period, the impugned work order came
to be issued in favor of the third respondent. It is not only the case that the
tender has been awarded beyond a period of 90 days from the date of
opening the technical bid but also that the schedule of rates has been
violated in the grant of contract in favor of the third respondent. As per the
e-tender, the basic rate for transportation was fixed at Rs.288/- per metric
ton subject to variation of amount at 10 percent or 20 percent above or
below. However, the rate quoted by the third respondent was phenomenal
and beyond imagination prior to the issuance of contract to the third
respondent, the department had transported goods successfully spending
Rs.330/- per metric tons and no loss had occasioned to the department
during the said period of transportation of goods. However, a phenomenal
slab rate of Rs.598/- flat rate for 0 to 8 kilometers for transportation of one
metric ton per kilometer has been fixed in favor of the third respondent. The
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024e-tender as well as the evaluation process lacks transparency and the Civil
Supplies Corporation, Thanjavur region will lose Rs.175 Crores per month
because of the impugned order dated 24.06.2024, by award of contract in
favor of the third respondent and on that basis, pressed for allowing the Writ
Petition by quashing the impugned work order in favor of the third
respondent.
11.The learned Additional Advocate General appearing for the 2nd
respondent submitted that, as far as Writ Petition in W.P.(MD)No.21944 of
2024 is concerned, the e-tender notification dated 09.06.2023, under two
cover system was issued fixing the last date for submission of bid as
11.07.2023 and the date of opening as 12.07.2023. The estimated
approximate value of the contract was Rs.7,88,63,245/-. The pre-bid
meeting was convened on 16.06.2023 and after considering the various
inputs, Corrigendum to tender notification were issued and the last date of
submission of bid was revised as 09.08.2023 and the bid opening date was
revised as 10.08.2023. As many as six bidders participated by submitting
their bids for the Virudhunagar region, including the third respondent and
the writ petitioner. Since the said e-tender was under two cover system, the
technical bids submitted by the respective bidders were opened for
evaluation on 10.08.2023, in the presence of the respective bidders or their
representatives. On completion of the evaluation by the duly constituted
tender scrutiny committee, the technical bids submitted by four bidders,
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
including the writ petitioner was rejected, as they failed to fulfil the pre-
qualification eligibility criteria as provided under Clause 6 of the tender
notification and other conditions. The technical bids submitted by two
bidders including the bid of the third respondent was accepted. The
summary details of the technical bid evaluation of all the bidders was duly
published in the e-procurement website on 19.08.2023 and an automated e-
mail was also sent to the e-mail address provided by the petitioner
forthwith. Hence, the submission made by the petitioner’s counsel that he
was not provided with any update with regard to the rejection of his tender
is absolutely false. The scrutiny committee’s report clearly enumerates the
shortcomings of the writ petitioner, which failed to meet the pre qualification
criteria as mandated by the tender notification.
12.As far as the writ petition in W.P.(MD)No.21946 of 2024 is
concerned, the learned Additional Advocate General submitted that the e-
tender notification dated 09.06.2023, under two cover system was issued
fixing the last date for submission of bid as 11.07.2023 and the date of
opening as 12.07.2023. The estimated approximate value of the contract
was Rs.3,02,72,832/-. The pre-bid meeting in this regard was
convened as early as on 16.06.2023 and after considering the various inputs
from the various stakeholders, Corrigendum to tender notification were
issued and the last date for submission of bid was revised as 09.08.2023
and the bid opening date was further revised as 10.08.2023. Five bidders
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
including the petitioner as well as the third respondent participated and
submitted their bids for the Theni region. The technical bids submitted by
these bidders were opened for evaluation on 10.08.2023, in the presence of
the bidders/representatives. On completion of the evaluation by the duly
constituted tender scrutiny committee, the technical bid submitted by three
bidders, including that of the petitioner was rejected as they failed to fulfill
the prerequisite qualification eligibility criteria as provided under Clause 6 of
the tender notification and the other conditions. The technical bid submitted
by two bidders was accepted, which including the bid of the third
respondent.
13.The learned Additional Advocate General further submitted that as
far as W.P.(MD)No.23628 of 2024 is concerned, the e-tender notification
dated 09.06.2023 and a two cover system was issued fixing the last date for
submission of bid as 11.07.2023 and the date of opening as 12.07.2023.
The estimated approximate value of contract was Rs.28,34,79,840/-. Pre-bid
meeting in this regard was convened on 16.06.2023 and after consulting the
various stakeholders, Corrigendum to tender notification was issued and the
last date for submission of bid was revised as 09.08.2023 and the bid
opening date was further revised as 10.08.2023. Nine bidders, including
that of the petitioner and the third respondent participated by submitting
their bids for the region of Thanjavur. The technical bid submitted by the
nine bidders were opened for evaluation on 10.08.2023, in the presence of
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
bidders/representatives. On completion of the evaluation by the newly duly
constituted tender scrutiny committee, the technical bid submitted by seven
bidders including that of the petitioner was rejected as they failed to fulfil
the pre-qualification eligibility criteria as provided under Clause 6 of the
tender notification and other conditions. However, the technical bid
submitted by two bidders, including that of the third respondent was
accepted. In furtherance to that the summary details of the technical bid
evaluation was duly published in e-procurement website on 18.08.2023 and
an automated e-mail was also sent to the e-mail address provided by the
petitioner forthwith intimating the rejection of his bid.
14.The learned Additional Advocate General further submitted that
there are two stages in tender evaluation namely, the initial examination to
determine substantial responsiveness and the determination of lowest value
as per Rules 28 and 29. Submission of a responsive bid is a condition
precedent to consider the financial bid submitted by the writ petitioner. The
writ petitioner having not qualified himself in the pre-qualifying round itself,
further he do not have any locus standi to challenge the tender, which was
awarded in due compliance of Tamil Nadu Tender Transparency in Tender
Act, 1998 and Rules 2000. Though it is claimed by the writ petitioner that,
the tender has been awarded beyond a period of 180 days, the reality is not
so. The learned Additional Advocate General insisted that the total period for
evaluation of tender till award of contract should be completed “ordinarily”
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
within the extended period of 180 days in terms of Rule 26. Proviso to Rule
14 and proviso to Rule 26 uses the word “ordinarily”, which denotes that the
tendering authority should follow such rules with reasonable adherence and
that the evaluation and the award of contract shall be completed as far as
may be practicable within the period, for which the tenders are held valid.
However, in the instant lis, the tender should be considered as
“extraordinary situation”, due to the intervention of model code of conduct
for the parliamentary election, which was enforced from 16.03.2024 to
16.06.2024. During this period, the finalization of the bids and the award of
tender could not be processed and this period of 83 days should be
excluded. As such, the contract was awarded within the duly extended
period of 151 days, which comes within the extended period of 180 days as
contemplated under Rule 26. Further categorically contending that the
Courts have consistently held that decisions of the tender inviting authority
should not generally be questioned, unless there is malafide intent or
arbitrariness. In the instant case, the petitioner has miserably failed to
establish any iota of malafideness or arbitrariness and on that basis, he
pressed for dismissal of all the three Writ Petitions.
15.The learned counsel appearing for the third respondent in W.P.
(MD)Nos.21944 and 23628 of 2024 categorically submitted that the writ
petitioners bid for tender being rejected on technical grounds ought to have
preferred the Appeal contemplated under Section 11 of the Tamil Nadu
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
Transparency in Tenders Act 1998. Having not preferred an Appeal under
Section 11, the writ petitioners do not have any legs to stand and he cannot
challenge the tenderers who qualified in the technical bid as for further
participation in the prize bid. That apart, he insisted that the malafides
alleged by the writ petitioners are not specific and non-joinder of necessary
parties goes to the root of the case and he categorically contended that this
is not a public interest litigation to shed crocodile tears for the loss incurred
to the Government and accordingly, pressed for dismissal of the Writ
Petitions.
16.The learned Senior Counsel appearing for the third respondent in
W.P.(MD)No.21946 of 2024 submitted that the writ petitioner’s tender bid
was rejected on 12.08.2023, in the technical bid stage itself. The said
rejection was based on three grounds and that was not challenged. Having
not challenged the rejection, the ineligible tenderer cannot challenge the
successful bidder. That apart, he also insisted that the Appeal as
contemplated under the Tamil Nadu Transparency in Tenders Act, 1998,
ought to have been preferred by the writ petitioner. Having not preferred the
same, the Writ Petition under Article 226, is not at all maintainable.
Pointing out the implementation of model code of conduct due to the
ongoing parliamentary elections, the learned Senior Counsel justified the
extension of time. Categorically contending that quashing the impugned
orders will not be in the interest of justice, he pressed for dismissal of the
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
Writ Petition.
17.Heard the learned counsels on either side and carefully perused
the materials available on record.
18.The Tamil Nadu Civil Supplies Corporation is a State owned public
sector company registered under the Companies Act, 1956. The main
functions of the Tamil Nadu Civil Supplies Corporation (TNCSC) is to
procure commodities like paddy, sugar, wheat, etc and process, store, move
and distribute them. Commodities are procured through direct purchase
centre (DPC), directly from the farmers and some of the commodities are
purchased through the market. Commodities are also received from the
Food Corporation of India. The commodities are stored in various storage
facilities spread across the State. The commodities are processed in 21
modern rice mills belonging to the corporation and also through private
hulling agents. The commodities are distributed through 1413 public
distribution system outlets and other stores and schemes. The Government
of India is granting subsidy for the transportation charges incurred towards
the transportation of the Food Corporation of India and Non-Food
Corporation of India movement like, transportation of paddy from purchase
centres to the storage point and from the storage point to the hulling centre
and vice versa and transportation to public distribution system outlets.
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
19.The Government of India, Ministry of Consumer Affairs, Food and
PD issued a Circular dated 06.05.2019, formulating new guidelines for the
fixation of transportation charges with a view to simplify the same across
India. As per the said Circular, a state level committee has to be constituted
in every State with the Food Secretary of the concerned State as its
Chairperson and other members. The state level committee was tasked with
the responsibility of finalising schedule of rates (SOR) towards
transportation charges, which should operate as guiding factor during the
competitive bidding process preferably through e-tendering to be done for
finalising transportation rates at district level. Accordingly, the state level
committee was constituted and the schedule of rates were finalised.
20.As far as the present three Writ Petitions are concerned, three e-
tender notifications were published by the official website of the second
respondent for e-tender notification under two cover system, inviting bids for
the appointment of transport contractors for transportation of paddy custom
milled rice, coarse grains, gunnies and stocks related to procurement
activities from various direct purchase centre/storage points/buffer
godown/rail head wagons to various storage points/godowns/modern rice
mills, etc, within the district and outside the district as interested by the
Tamil Nadu Civil Supplies Corporation, as specified in the nature of work for
a period of two years specified in the respective tender notifications. These
notifications were with respect to the regions of Virudhunagar, Theni and
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Thanjavur respectively. Clause 28 of the tender notification provides for
validity of the odd offer and the same makes it clear that the offer made by
the tenderer shall be valid for acceptance for a minimum of 90 days from the
date of opening of the tender. It is further mandated that non-compliance of
the above condition would disqualify the tenderer and such tender would be
rejected. Rule 26 of the Tamil Nadu Transparency in Tender Rules, 2000, is
extracted as follows:-
“26.Time taken for evaluation and extension of tender validity
– (1)The evaluation of tenders and award of contract shall be
completed, as far as may be practicable, within the period for which
the tenders are held valid.
(2)The Tender Accepting Authority (may) seek extension of the
validity of tenders for the completion of evaluation :
[Provided that sum total of all extensions shall ordinarily not
exceed 180 (one hundred and eighty) days.](3)In case the evaluation of tenders and award of contract is
not completed within extended validity period, all the tenders shall be
deemed to have become invalid and fresh tenders may be called for.”
21.A careful reading of Rule 26(1), (2) and (3) would show that if the
evaluation of tenders and award of contract could not be completed within
the period for which the tenders are held valid, the tender accepting
authority may seek extension of validity of tenders for completion of
evaluation and the sum total of all the extensions shall not ordinarily exceed
180 days. In the instant cases, Clause 28 of the tender notifications make it
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clear that the validity of the tender would be only 90 days. Since the tender
accepting authority could not conclude the evaluation of tenders and award
contract within the said minimum period of 90 days as per the tender
notification, further extension of validity of tender could be sought by the
tender accepting authority only to a further total number of 180 days. The
date of opening of technical bid in all the three cases were 10.08.2023. The
period of 90 days, that is, the period of validity of the offers made by the
various tenderers in terms of Clause 28 of the tender notification would
expire on 07.11.2023. Since, the tender inviting authority could not
complete the evaluation process within the said date, further extension
could be sought for by the said authorities to a maximum of 180 days, that
is, till 05.05.2024.
22.However, the learned Additional Advocate General submitted that
the proviso to Rule 26(2) of the Tamil Nadu Transparency in Tenders Rules,
2000, makes it clear that the extension to an extent of 180 days are
ordinarily provided. However, in the extraordinary circumstances, the same
could be extended further. In the instant cases, an extraordinary situation
emanated because of the intervention of the model code of conduct for
parliamentary elections, which was from 16.03.2024 to 06.06.2024, during
which the finalization of the bids and award of tender could not be
processed. Hence, this period of 83 days has to be excluded, while
calculating 90 plus 180 days. If the said period of 83 days is excluded in all
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the 3 cases, the tender has been evaluated and work order was awarded to
the successful tenderer within the period of 90 plus 180 days, that is, on
151, 144 and 147 days respectively, as far as W.P.(MD)Nos.21944 of 2024,
21946 of 2024 and 23628 of 2024 respectively. The further contention of the
learned counsel for the petitioner is that Clause 23 of the tender notification
dealing with period of contract mandates that all the 3 contracts are valid
for a period of 2 years, that is, from July 2023 to June 2025 and such
reasonable extension of time up to a maximum of 6 months, if any, specified
by TNCSC or till the finalization of new tenderers, whichever is earlier on the
same rates, terms and conditions. The extension of time up to a maximum
of 6 months has been left to the discretion of TNCSC.
23.However, a careful perusal of the materials available on record
would make it clear that all the 3 tenders has been awarded to the
successful tenderer, that is, the third respondent with effect from
28.06.2024, 21.06.2024 and 24.06.2024 respectively, for a period of 2 years,
in all the aforesaid Writ Petitions. No doubt, the said exercise has clearly
violated the mandates of Clause 23 of the terms of the tender notifications.
Since the period of contract in Clause 23 of the tender notification has
specified the month and year for a period of 2 years, that is, from July 2023
to June 2025, the work order ought to have been issued to the third
respondent only for the period from July 2023 to July 2025, subject to the
reasonable extension at the discretion of TNCSC for a maximum of 6
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
months.
24.As far as the allegation of the petitioners that the third respondent
has been ordered to carry out the transport work at an exorbitant rate is
concerned, the learned Additional Advocate General categorically submitted
that the said rate was finalized only after inviting the third respondent, who
was declared as L1 for negotiations for further reduction of price in terms of
Clause 19 of the tender notification. In all these Petitions, the writ
petitioners tender bid came to be rejected by the second respondent during
the first level of evaluation, that is, at the first instance during technical
evaluation itself. The contention of the writ petitioners that the same was
not communicated to him can be explicitly negated as false and irrelevant
because of the fact that the entire process of tender was carried out in a
more transparent way because the same is an e-tender and time to time the
developments of the tender evaluation process was made explicitly available
in the website and on the date of rejection of technical evaluation itself, an
automated e-mail has been served upon all the tenderers whose technical
bid was rejected. However, suppressing the said fact, the writ petitioners
have filed these Writ Petitions.
25.It is a settled proposition of law that an unsuccessful tenderer
cannot further challenge the work order issued in favor of the successful
tenderer without challenging the rejection. The Hon’ble Apex Court in the
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case of Travancore Devaswom Board v. Ayyappa Spices and Others
reported in 2024 SCC Online SC 244, has dealt with the tender matter and
the relevant portion of the same is extracted as follows:-
“19. The principle that in matters of public tenders for
procurement, judicial review is restrained is well established. In
cases where a party invoking writ jurisdiction has been a participant
in the tender process, courts should be slow and cautious in
exercising the power of judicial review……….
2. The judicial review of such contractual matters has its own
limitations. It is in this context of judicial review of administrative
actions that this Court has opined that it is intended to prevent
arbitrariness, irrationality, unreasonableness, bias, and mala fides.
The purpose is to check whether the choice of decision is made
lawfully and not to check whether the choice of decision is sound. In
evaluating tenders and awarding contracts, the parties are to be
governed by principles of commercial prudence. To that extent,
principles of equity and natural justice have to stay at a distance.
3. We cannot lose sight of the fact that a tenderer or contractor
with a grievance can always seek damages in a civil court and thus,
“attempts by unsuccessful tenderers with imaginary grievances,
wounded pride and business rivalry, to make mountains out of
molehills of some technical/procedural violation or some prejudice to
self, and persuade courts to interfere by exercising power of judicial
review, should be resisted.”
26.Even in the instant case, the writ petitioners are those parties, who
have participated in the tender process and having turned unsuccessful in
the tender process have filed these Writ Petitions as a last resort to spoil the
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
prospectus of the third respondent in whose favor the work order has been
issued by the second respondent by the proceedings in the respective
impugned orders in each of the Writ Petitions.
27.I am of the considered view that, had the writ petitioners filed the
same in the style of a public interest litigation before the appropriate Bench,
there would have been little scope for the petitioners to succeed in the same.
However, being persons who have participated in the tender process, their
scope of filing a public interest litigation is also ruled out. As far as the Writ
Petition in W.P.(MD)No.21944 of 2024 is concerned, the petitioners technical
bid in the first stage came to be rejected for the following reasons:-
“a.The Tenderer has not submitted the bank guarantee as per
Annexure – 4 for 5% of the value of contract from the nationalized
bank as per clause 6(9)(c), as petitioner do not possess of required
experience as provided in clause 6(9)(a) or (b). The total value of the
Contract being Rs.7,88,63,245/- and 50% of which is Rs.
3,94,31,623/- and 25% of which is Rs.1,97,15,811/-.
b.The average Annual turnover certificate submitted by the
petitioner from Chartered Accountant is for Rs.15,40,492/- whereas
as per clause 6(10) the minimum average annual Turnover required is
for Rs.75,00,000/-.
c.Annexure 7 was not in prescribed format. Etc.,”
28.As far as the Writ Petition in W.P.(MD)No.21946 of 2024 is
concerned, the reason for rejection of the writ petitioners technical
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024
evaluation is extracted as is as follows:-
“a.The Tenderer has not submitted the documents to fulfill the
experience as provided in clause 6(9) and he has also not submitted
bank guarantee as per Annexure – 4 for 5% of the value of contract
from the nationalized bank as per clause 6(9)(c).
b.The average Annual turnover certificate submitted by the
petitioner from Chartered Accountant is for Rs.15,40,492/- whereas
as per clause 6(10) the minimum average annual Turnover required is
for Rs.75,00,000/-.
c.Annexure 7 was not in prescribed format. Etc.,”
29.As far as W.P.(MD)No.23628 of 2024, the reason for rejection of the
petitioners bid in the technical evaluation is as follows:-
“a.The Tenderer Document pages, annexures and corrigendum
are not signed and uploaded as per clause 13(b), 15K.
b.The Experience certificate is not in the format prescribed in
Annexure 3, as per clause 6(9) and he has also not submitted bank
guarantee as per Annexure – 4 for 5% of the value of contract from the
nationalized bank as per clause 6(9)(c) and 13(b).
c.The average Annual Turnover certificate is uploaded without
the bidder’s signature as per clause 13(b). Annual Turnover Criteria
as per clause 6(10) not fulfilled.”
30.In all the three cases when the annual minimum average annual
turnover required as per Clause 6(10) of the tender notification is for
Rs.75,00,000/-, the petitioners were not able to produce the annual
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turnover certificate as required by the tender notification. Hence, obviously
they did not challenge the same and prefer an Appeal under Section 11 of
the Tamil Nadu Tender Transparency in Tenders Act, 1998. Having not done
the same, they cannot adopt an indirect method, seeking re-tender by
challenging the final work order issued in favor of the third respondent,
which has been done after proper evaluation in both the stages.
31.The reason for delay in evaluation of the tender has been rightly
justified by the learned Additional Advocate General by attributing the delay
to the implementation of model code of conduct, due to the ongoing
parliamentary elections to a tune of 83 days. The same could be excluded,
considering the same as extraordinary circumstances and on apt
calculation, the final work order has been awarded within time. Rule 23 of
the Tamil Nadu Transparency in Tender Rules, 2000, is extracted as
follows:-
“23.Changes and alterations not to be permitted after
tender opening.- No changes, amendments which materially alter the
tendered prices shall be permitted after the opening of the tender, except
as per the procedure prescribed in sub-section (3) of section 10 of the
Act.”
32.Rule 25 of the Tamil Nadu Transparency in Tender Rules, 2000, is
extracted as follows:-
“25.Tender evaluation to be in accordance with evaluation
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W.P.(MD)Nos.21944, 21946 and 23628 of 2024criteria.- The Tender Accepting Authority shall cause the evaluation of
tenders to be carried out strictly in accordance with the evaluation
criteria indicated in the tender documents.”
33.A careful reading of Rules 23 and 25 of the Tamil Nadu
Transparency in Tender Rules, 2000, would make it clear that no changes or
amendments, which materially alter the procedure and criteria specified in
the tender document are permissible. Section 10 of the Tamil Nadu
Transparency in Tender Act, 1998, which provides for evaluation and
acceptance of tender makes it clear that the tender accepting authority shall
cause an objective evaluation of tenders taking into consideration the
schedule of rates as mentioned in the tender document and the prevailing
market rate for procurement and comparison of the tenders in accordance
with the procedure and criteria specified in the tender document.
Hence, any deviation from the procedure and conditions mandated in the
tender document would be invalid.
34.A careful perusal of the orders would make it clear that the work
order has been issued in all the three cases with effect from the date of work
order for a period of two years, when the tender documents clearly mandate
that the tenders for transport contract is exclusively for the period from July
2023 to June 2025. Hence, the impugned work orders are hereby duly
modified as far as the period of transport contract which would be valid till
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June 2025, which could be further extended for a period of six months
alone, on the discretion of the Tamil Nadu Civil Supplies Corporation.
35.Accordingly, the Writ Petitions are disposed of. There shall be no
order as to Costs. Consequently, connected miscellaneous petitions are
closed.
18.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
To
1.The Managing Director,
Tamil Nadu Civil Supplies Corporation,
Head Office, Chennai – 107.
2.The Deputy Collector,
Tamil Nadu Civil Supplies Corporation,
Regional Office,
Virudhunagar District.
3.The Managing Director,
Tamil Nadu Civil Supplies Corporation,
Head Office,
Chennai Metro Rail Administrative Office,
Poonamallee High Road,
Koyambedu,
Chennai – 600 107.
4.The Senior Regional Manager,
Tamil Nadu Civil Supplies Corporation,
Thanjavur Office,
Thanjavur.
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L.VICTORIA GOWRI, J.
Mrn
W.P.(MD)Nos.21944, 21946 and 23628 of 2024
18.02.2025
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