@JUDGMENTTAG-ORDER
B. Prakash Rao, J.@mdashThis petitioner seeks a writ of declaration that the action of the respondents in not pre-qualifying and issuing the tender schedules/documents to the petitioner as arbitrary, illegal and also violative of principles of natural justice and further for a consequential direction to supply the tender documents for the works mentioned in the pre-qualification notice published in New Indian Express news paper dated 5.8.2002 and consider the same along with other bids.
2. The case of the petitioner briefly is that the petitioner is registered company under the provisions of Indian Companies Act and it is a special class civil contractor with the Government of Andhra Pradesh as well as Union of India. The petitioner specialises in construction of bridges and other similar structures apart from undertaking specialized civil engineering works. The 2nd respondent herein issued a pre-qualification notification dated 5.8.2002 published in New Indian Express news paper inviting applications by 20.8.2002 from the experienced contractors for the work of construction of Run Way, Apron, Taxi Track, Isolation Bay Over Run, and associated works at Visakhapatnam Airport for the estimated cost of Rs. 7,240 lakhs approximately and the period of completion of the work is 24 months. The said notification prescribed certain conditions for qualification for the bid which includes that the tenderer should have undertaken similar nature of works and also should have satisfactorily completed two works of Rigid Pavement of Airfield Pavement or National Highways or mass controlled concrete works of Dams, Tunnel Aqueduct, Canal, Bridge or of similar nature each of Rs. 3,620 lakhs or one work of Rs. 5,792 lakhs (price/updated @ 10% per annum compounded) during last five years. According to the petitioner, it satisfied all the criteria and therefore, it has submitted application for supply of tender document on 14.8.2002. However, as per the communication dated 22.8.2002, the petitioner was asked to furnish the details stipulated in para 2(iii) of NIT by 28.8.2002 for further processing the petitioner''s application. Therefore, the petitioner by a letter dated 24.8.2002 clarified that it has already given the details sought for along with his earlier application dated 14.8.2002. However the petitioner has furnished all those details in his letter dated 24.8.2002. Yet the 2nd respondent by another letter dated 16.9.2002 again sought for the similar details as already requested through the letter dated 22.8.2002 to be furnished by 17.9.2002 for further processing the application of the petitioner. Therefore, the petitioner had to submit a letter dated 16.9.2002 to the 2nd respondent clarifying that it has already submitted copies of the completion certificates in respect of four works which fact was already clarified in its earlier dated 24.8.2002. However the petitioner furnished the said details again. In spite of the same, the petitioner received a phone message once again asking for sending of completion certificates of the work of construction of High Level Bridge of 1800 m length with 40 Spans of 45 m across Gowthami, Branch of River Godavari. The petitioner by its letter dated 5.11.2002 enclosed the certificate issued by the Executive Engineer (R&B) dated 2.11.2002 indicating that the date of completion of the work as 20.9.2002. However in spite of the same, no tender documents were furnished to the petitioner. The petitioner came to know on 23.11.2002 that the bid documents have already been issued to the other intending tenderers and the last date for submission of the tenders being 29.11.2002 the tenders are to be opened on the same day. Therefore, the complaint of the petitioner is that without any valid reason the petitioner is being deprived of its legitimate right in participating the bid and for no reason the bid documents are not furnished. Hence the writ petition.
3. This writ petition was filed on 25.11.2002. While admitting the writ petition, this Court granted interim directions in WPMP No. 29164/2002 on 27.11.2002 to the following effect:
"Prima facie, from the certificates issued by the Executive Engineer, NH Division, Kakinada on 30.8.2002 as well as the one dated 12.9.2002, it is evident that the petitioner had successfully completed the work of the cost of Rs. 110 crores and accordingly, the petitioner satisfies the pre-qualification conditions stipulated by the 2nd respondent. Hence, there shall be an interim direction to issue tender schedule to the petitioner forthwith, receive the tender of the petitioner and to consider the same along with the other tenders."
4. Subsequently, the respondent filed a detailed counter-affidavit along with an application seeking to vacate the interim order inter alia on the ground that earlier for the same work a notification was issued on 7.6.2001 in response to which they received 41 applications including that of the petitioner. However after scrutiny they have short-listed 11 contractors for issuing tender applications. However due to long delay in the process of land acquisition, the respondents had to issue fresh notification on 2.8.2002 once again calling for applications. Accordingly, they have received 34 applications including that of the petitioner and after scrutiny, six applications were listed for issuing tender applications. It was reiterated that as per the said notification those who have already been short-listed as per the earlier notification dated 7.6.1991, they need not apply afresh and their applications would be considered along with the short-listed contractors eligible. Thus out of 75 applications received in all in response to both the notifications, 17 contractors were short-listed for purpose of issuing tender schedules. In the application filed by the petitioner dated 14.8.2002 he referred to the list of four works out of which only one work was similar in nature as stipulated in NIT and as far as the remaining three works, they were not similar in nature and, therefore, the case of the petitioner could not be considered. It is only the bridge work across Gowthami river being similar one which was considered during evaluation and it was found that there is no evidence to show about the completion of the said work by the relevant date. The letter issued by the Executive Engineer, Kakinada on 13.8.2002 filed by the petitioner only shows that the petitioner has substantially completed the said bridge by 31.7.2002. Therefore, the said certificate not being satisfactorily shown about the completion of the work as required, a letter dated 22.8.2002 was issued to the petitioner for submission of proper certificates by 28.8.2002. Thereupon the petitioner addressed a letter dated 24.8.2002 reaffirming the earlier certificates and the work as such. The petitioner further submitted a certificate issued by the Executive Engineer (R&B) dated 2.11.2002 indicating that the date of completion of the work is 20.9.2002. Therefore, admittedly the work having been completed by 20.9.2000, the petitioner cannot claim as qualified since the said work was not completed by it by the relevant date i.e., 20.8.2002, In view of the same the application of the petitioner was not considered as it was found ineligible in terms of the qualifications prescribed in the notification.
5. The main submission of Mr. Nuty Ram Mohan Rao, learned Counsel appearing for the petitioner is that in view of the certificates produced on behalf of the petitioner, there is ample evidence to show that the work has been completed by the relevant date and therefore the petitioner is folly qualified and as such entitled to be considered along with other qualified tenderers. It is also pointed out by the learned Counsel that the certificates and other documents submitted by the petitioners were not considered by the respondents from proper perspective and, therefore, it is difficult to say that the work was not completed from out of the said certificates.
6. The learned Counsel for the respondents sought to rebut the said contention stating that there is absolutely no positive material submitted on behalf of the petitioner to show as to the completion of the work of similar nature by the relevant date and, therefore, the petitioner cannot claim to have been qualified and, thus, the petitioner has absolutely no vested or enforceable right as such.
7. On consideration of the submission made on either side and on perusal of the record, it is evident that the petitioner did submit an application for the same work in pursuance of the notification dated 7.6.2001 and there is no dispute that his application was not short listed. It is only when fresh notification was issued on 5.8.2002, the petitioner filed an application on 14.8.2002 seeking for tenders on the ground that he has completed the work of similar nature. The relevant clauses in the tender notice reads as follows:
1. Applications for short-listing are invited by Senior Manager, Engg. (Civil)-1, AAI, Rajiv Gandhi Bhawan, Safdarjung Airport, New Delhi-110 003 on behalf of A.A.I. from the eligible contractors for the work of "Construction of Runway Apron, Taxi-track, Isolation Bay, Overrun and associated works at Visakhapatnam Airport," for an estimated cost of Rs. 7,240 lakhs (Approx) with period of completion of 24 months.
3. Application form Joint Venture Company duly registered/Consortium of firms/companies shall be considered subject to following conditions:-
(i) Consortium of firms should not comprise of more than two firms.
(ii) Joint Venture Firm as a single unit of each manner of the consortium should be registered in appropriate class with the authorities mentioned in Para2(i) above.
(iii) Joint Venture firm as a single unit or each member of the consortium should have valid ITCC.
(iv) A detailed and valid agreement exists between the consortium member defining clearly the role, responsibility and scope of work of each member along with nomination of leader for the purpose of this work commiserating with their experiences and capabilities and a confirmation that the member of the consortium assume joint and several responsibilities.
(v) The leader of the consortium of firm shall meet the criteria of having completed similar work(s) (Rigid Pavement/Mass Controlled Concrete Work) of one work of value Rs. 4,634 lakhs or two works of value Rs. 2,896 lakhs each in single contract during the last five years (Price @ 10% per annum compounded) and also meet the 80% criteria of financial turnover as mentioned at Para 2(v) above and shall accept overall responsibility of contract obligations for the total scope of work during execution and up to defects liability period.
(vi) Both the consortium firms should jointly possess the required T&P, Machineries and Manpower.
(vii) In addiction to 3(i) to 3(v) above qualification criteria defined in Para 2(and sub-paras thereof) shall be met fully and jointly by both the members of consortium as a single unit of Joint Venture.
4. The tenderers shall submit their applications along with firm''s bio-data and documents in support of their meeting each criteria mentioned above by 20th August, 2002. Firms already short-listed (against earlier press notice) and intimated need not apply again. AAI reserves the right to accept or reject any or all applications without assigning any reasons. AAI also reserves the right to call off process of short-listing of contractors at any stage without assigning any reason.
8. From the above it is evident that the pre-qualification prescribed is that undertaking of similar nature of work and the tenderers should have a satisfactorily completion of two such works during last five years and the same shall be substantiated by submitting the certificates along with the application itself for short-listing. The case of the petitioner is that in support of his application, it has pointed out the work it has undertaken to show that it is fully qualified in the pre-qualification tender. According to the petitioner the works it has undertaken includes construction of a bridge across Gowthami river. However the two works which are required to be undertaken to be qualified as per the tender notification are ''Rigid Pavement of Airfield, Pavement or National Highways or mass controlled concrete works of Dams, Tunnel, Aqueduct, Canal, Bridge or of similar nature'' and completion thereof during last five years. The certificates filed on behalf of the petitioner especially the certificate dated 13.8.2002 mentions that the petitioner was awarded the said work as per G.O. Ms. No. 132, dated 10.9.1999 and further it reads that the work has been substantially completed by 31.7.2002 and the details of the work executed were shown below. The other certificate dated 18.11.1998 issued by the Project Management Unit, Chief Construction Engineer (R&B), Balasore, shows that the work entrusted to the petitioner was done at a competed cost of Rs. 4,124.04 lakhs and the said work having been commenced in March, 1995 was completed in December, 1997. The certificate dated 12.9.2002 issued by the Executive Engineer (R&B) NH Division, Kakinada, in favour of South Central Railway, Secunderabad, shows that (he work of construction of bridge across Gowthami river undertaken by the petitioner was commenced on 6.10.1999 and the actual date of completion of the said work was shown as 33 months. The other certificate issued by the Executive Engineer (R&B) NH Division, Kakinada, regarding the very same work shows that the petitioner completed the work in all respects by 20.9.2002, i.e. within a period of 33 months from the date of handing over of the site. i.e., 21.12.1999. Though there is assertion on the part of the petitioner at different levels by pressing into service the certificates that the work was completed by 20.8.1999, but the dates as shown above are totally contradictory to each other and there is no satisfactory explanation forthcoming in this regard. Further such varying dates would amply throw a doubt as to the exact date of completion of work. In the absence of any positive evidence, apparently the respondents have treated that the work was not completed by the relevant date. It is now well settled that in awarding tenders, no right is created in any contractors and necessarily they have to have satisfied all the required qualifications. In an unreported judgment cited on behalf of the respondents in SLP No. 18121-22/1996 dated 17.9.1996, the Apex Court considered similar situation and held that from the admission of the parties itself there being no completion of work in hand, there is no illegality in rejecting the application.
9. In regard to the principles as to the satisfaction of the qualification as prescribed in the tender notification, there is no dispute and it is well settled that as long as the said qualifications are not satisfied, it is always open for the authorities to reject the applications. In view of the above, it has to be held that that the petitioner has totally failed to satisfy as to the minimum required qualifications and therefore, it cannot claim any right for consideration of its case along with other qualified short-listed contractors. I do not find any merit in the writ petition and the same is liable to be dismissed.
10. The writ petition is, accordingly, dismissed. There shall be no order as to costs.
