M/S. Venkateswara vs State Of Andhra Pradesh

R. Raghunandan Rao, J

The 4th respondent had issued a tender notification dated 18.03.2021 seeking supply of diet to inpatients as well as the duty Doctors in the Area hospital, Chirala. The petitioner and the 5th respondent were the only bidders for this tender. After going through the tender process the 4th respondent had awarded the tender in favour of the 5th respondent on 27.04.2021. The said award of tender in favour of the 5th respondent is challenged by the petitioner in the present writ petition.

The case of the petitioner is that the 5th respondent is not eligible to participate in the tender and the bid of the 5th respondent should have been rejected by the 4th respondent on three grounds -

A) The first ground is that the 5th respondent did not have minimum experience of three years in supplying diet. In this regard the petitioner had relied on the Experience/Technical and Financial Criteria mentioned in Clause-4.B(1)(a)& (b)of the tender document,which reads as under:

"4.B(1)(a). The Tenderer should have experience of a minimum of 3 (three) years in supplying diet in the government hospitals as described below.

(a) If the Tender is for a Teaching Hospital - experience in a Government Hospital of a minimum of 500beds.

(b) If the Tender is for a District Hospital - experience in a District Hospital of a minimum of 200 (two hundred) beds.

(c) If the Tender is for an Area Hospital - experience in an Area Hospital of a minimum 100 (one hundred) beds.

(d) If the Tender is for a Community Health Center - experience in a Community Health Centre of a minimum of 50 (fifty) beds or more.

The above types of Hospitals are in hierarchical order from (a) to down (d). Tenderer having experience in Hospitals under

(a) is eligible to tender to Hospitals under (b) or (c) or (d) and not vice-versa.

OR

(b) The Tenderer should have experience of a minimum of 3 (three) years in catering in health institutions (other than government hospitals) like hostels or college/railway canteens or hotels or hospitality or bulk catering or of similar nature."

It is the submission of the petitioner that the 5th respondent did not have any experience as per the requirement set out above and as such the bid of the 5th respondent should have been rejected.

B) The second and third grounds are that the 5th respondent did not file the income tax returns for the immediate preceding three (3) years nor the VAT returns for the immediate preceding (3) three years, which would automatically disqualify the 5th respondent from participating in the tender process. In this regard the petitioner relied on the relevant portion of Clause 4.D-the Documents to be submitted under 4.B above, which reads as under:

"4.D (iii).- Income Tax returns filed for the immediate preceding 3 years (*)

(iv).- VAT returns filed for the immediate preceding 3 years (*) (*) Where the tender is for hospital of below 50 beds and the Tenderer is not able to submit the IT & VAT returns on valid and reasonable grounds, the District Diet Management Committee being the tender inviting authority, shall have the right to accept the tender on such terms and conditions as it may consider necessary and appropriate."

After notice, both the 5th respondent and the 4th respondent have filed counter affidavits and memos. It is the case of both 4th and 5th 3 RRR,J.

W.P.No.9440 of 2021 respondents that the 5th respondent has necessary experience required under the tender conditions and the award of tender in favour of the 5 th respondent cannot be faulted.

Smt. Kavitha Gottipati, learned counsel for the petitioner contends that the 5th respondent had produced certain experience certificates to demonstrate the minimum experience of three years. The certificates produced by the 5th respondent relate to the experience set out in 4.B(1)(b), which is catering to hostels or college/railway canteens or hotels etc., and not to a teaching hospital or other Government hospitals. She submits that even the certificate produced by the 5th respondent is a document, which cannot be accepted,as the said certificate issued by the Government General Hospital, Ongole,relate to the supply of diet to Covid-19 patients between the period 23.07.2020 to 31.07.2020; 16.08.2020 to 31.08.2020; 01.08.2020 to 15.08.2020; and 01.09.2020 to 15.09.2020. As these certificates relate to a period of about five months, the same would not be sufficient.

Smt. Kavitha Gottipati also relied on the other experience certificate produced by the 5th respondent said to have been issued by the Principal of the A.P. Social Welfare Residential School/Junior College, North Addanki, Prakasam District, dated 29.01.2020. This certificate states that Smt. Kotha Lakshmi Padmavathi, W/o. KothaPoli Reddy, NTR Nagar, Addanki, Prakasam District, has rendered catering services from 2008 to 2012 to the inmates of APSWRS/Jr. College (G), North Addanki, and that the diet was supplied for approximately 540 students. This certificate also shows that Smt. Kotha Lakshmi Padmavathi had rendered this supply by way of Kotha Poli Reddy Catering Services.

Smt. Kavitha Gottipati, firstly submits that the 5th respondent, which is described as KothaPoli Reddy Catering Services, is a proprietary concern of Sri KothaPoli Reddy and the catering service experience obtained by his wife Smt. Kotha Lakshmi Padmavathi cannot be treated as the experience of the 5th respondent. Apart from this, she also submits that the certificate itself is a created certificate.

The petitioner has now filed a Memo dated 15.09.2021 stating that an application had been made to the Principal APSWRS, North Addanki, under Right to Information Act about the details of the person, who had supplied diet to the students of the APSWRS. It is further stated that in response to that query, the Principal had certified that Smt. Kotha Lakshmi Padmavathi, W/o. KothaPoli Reddy had worked as catering contractor for the academic year 2009-2010 only and that an experience certificate was issued for that year only.

Smt. Kavitha Gottipatiwould also point out to the fact that the counter affidavit filed by the 4th respondent speaks of supply of catering services to the said Junior College for the years 2008-2012 while the certificate produced by the 5th respondent speaks of catering services being given for the years 2008-2010 only.In these circumstances, it is her contention that the said experience certificate which can at best be treated as experience certificate of the wife of the proprietor of the 5th respondent, cannot be taken as the experience certificate of the 5 th respondent itself.

As far as non-production of the income tax returns and the VAT returns are concerned, Smt. Kavitha Gottipati states that no material has been placed before this Court to show that the 5th respondent had 5 RRR,J.

W.P.No.9440 of 2021 submitted the said returns, and as such, the bid of the 5th respondent has to be rejected.

Apart from the aforesaid contentions, which have been raised in the writ petition and reiterated by her, Smt. Kavitha Gottipati, learned counsel for the petitioner would also draw the attention of this Court to the fact that while the 5th respondent had quoted Rs.38/- as the charges for supply of diet per person, per day, the contract was given to the 5th respondent at the rate of Rs.39/-, which clearly shows that undue favouritism had been given to the 5th respondent.

Sri Koti Reddy Idamakanti, learned counsel appearing for the 5th respondent, would submit that the 5th respondent is a reputed and experienced contractor in supplying diet and has been supplying to various institutions including Community Health Centre, Addanki, Community Health Centre, Parchur, and various Government Social Welfare Colleges and Hostels in Prakasam District, apart from providing diet for Covid-19 isolation ward patients in the RIMS hospital, Ongole from July 2020 to 2021. He further submits that the petitioner is a contractor, who is seeking to obtain the contract by unfair means.

In view of the said issues raised by both sides, the 4th respondent had been called upon to produce the tender documents relating to the bid of the 5th respondent. They were accordingly placed before this Court.

A perusal of the said documents would show that the medical officer for the Community Health Centre, Addanki, had issued a certificate of experience for the period 2007 to 2013 and from 05.10.2018 to till date. The medical officer for the Community Health Centre, Addanki, had also given a satisfactory certificate for the diet supplied by the 5th 6 RRR,J.

W.P.No.9440 of 2021 respondent from 01.03.2018 to February, 2019 and from 01.03.2019 to till date. Similarly, the medical officer for the Community Health Centre, Parchur gave an experience certificate for supply of diet from 05.03.2019 to till date. Apart from these certificates, the Principal of APSWRS/Junior College, Addanki had given an experience certificate in favour of the wife of the proprietor of the 5th respondent that she had supplied food to approximately 540 students for the period 2008 to 2012.

As far as the income tax returns are concerned, the 5th respondent had filed its returns for the assessment years 2015 to 2021. In relation to the VAT returns, the 5th respondent had filed returns up to November, 2021.As can be seen from the above record, the tender of the 5th respondent on account of the production of income tax returns and VAT returns cannot be found fault with.

However, the experience certificates produced by the 5 th respondent in relation to the certificates given by the Community Health Centres cannot be taken into account as the diet tender was for an Area Hospital and the experience certificates of an Area Hospital, with a minimum of 100 beds or higher level hospitals, alone can be taken into account. The only other experience certificate produced by the 5th respondent is the experience certificate issued by the APSRWS/Junior College, Addanki. The 5th respondent is a proprietary concern of Sri Kotha Poli Reddy. This would mean that only certificates which speak of his personal experience can be taken into account. Therefore, the said certificate cannot be accepted, as the said certificate has been issued to the wife of the proprietor of the 5th respondent and not to him.

In these circumstances, the bid of the 5th respondent itself could not have been taken into account and consequently the award of 7 RRR,J.

W.P.No.9440 of 2021 tender in favour of the 5th respondent by the order of the 4th respondent dated 27.04.2021 has to be set aside.

Smt. Kavitha Gottipati, learned counsel for the petitioner has also contended that once the 5th respondent is disqualified, the petitioner should be awarded the tender as the petitioner is the only other tenderer in the tender process.

The said contention cannot be accepted as it would be appropriate to direct the 4th respondent to conduct the tender process afresh by issuing a fresh tender notification to award the contract for supply of diet to the successful bidder by issuing a fresh tender notification. This would be to ensure that the 4th respondent can get the most competitive bid from the interested bidders, which would go towards conservation of public funds.

Accordingly, the writ petition is allowed setting aside the proceedings Rc.No.2226/D1/2011, dated 27.04.2021 issued by the 4 th respondent awarding the contract to the 5th respondent. The 4th respondent shall conduct the tender process afresh by issuing a fresh tender notification for supply of diet to get a competitive bid from the interested bidders. It is open for the petitioner to participate in the said tender process. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand closed.