Kerala High Court
M/S. Red Rock Developers vs The Superintending Engineer on 2 December, 2014
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939
WP(C).No. 16737 of 2017 (N)
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PETITIONER :
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M/S. RED ROCK DEVELOPERS
ROOM NO. 408, MELANGADI POST,
KONDOTTY, MALAPPURAM DISTRICT,
PIN - 673 638,
REPRESENTED BY ITS MANAGING PARTNER,
P.P. ABDUL SALEEM.
BY ADVS.SRI.K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENTS :
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1. THE SUPERINTENDING ENGINEER
OFFICE OF THE SUPERINTENDING ENGINEER,
ROADS & BRIDGES, NORTH CIRCLE,
PWD COMPLEX, MANANCHIRA, KOZHIKODE DISTRICT,
PIN - 673 001.
2. GOVERNMENT OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SRI.K.J.MANURAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01-08-2017, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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WP(C).No. 16737 of 2017 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE CERTIFICATE ISSUED BY
THE EXECUTIVE ENGINEER PWD ROADS
DIVISION, MANJERI DATED 02.12.2014.
EXHIBIT P2: TRUE COPY OF THE CERTIFICATE DATED
03.04.2017 ISSUED BY THE EXECUTIVE
ENGINEER, MINOR IRRIGATION DIVISION,
MALAPPURAM.
EXHIBIT P3: TRUE COPY OF THE RELEVANT PAGE OF THE
WORK AGREEMENT EXECUTED BY THE
PETITIONER WITH THE 1ST RESPONDENT DATED
10.11.2016.
EXHIBIT P4: TRUE COPY OF THE E TENDER PUBLISHED BY
THE IRRIGATION DEPARTMENT DATED
21.04.2017.
EXHIBIT P5: TRUE COPY OF THE E TENDER DATED
24.04.2017.
EXHIBIT P6: TRUE COPY OF THE RELEVANT PAGED OF THE
STANDARD BID DOCUMENT FOR E-TENDERING
WORKS COSTING RS. 5 LAKHS PUBLISHED IN
THE SITE.
EXHIBIT P7: TRUE COPY OF THE RELEVANT PAGED OF THE
STANDARD BID DOCUMENT FOR E-TENDERING
WORKS COSTING RS. 5 CRORES PUBLISHED IN
THE SITE.
EXHIBIT P8: TRUE COPY OF THE TENDER NOTICE PUBLISHED
BY THE PUBLIC WORKS DEPARTMENT WITH
RESPECT TO WORK ABOVE 5 CRORE.
EXHIBIT P9: TRUE COPY OF THE TENDER NOTICE PUBLISHED
BY THE PUBLIC WORKS DEPARTMENT WITH
RESPECT TO WORK BELOW 5 CRORE.
WP(C).No. 16737 of 2017 (N)
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EXHIBIT P10: COPY OF THE BOQ SUMMARY DETAILS PUBLISHED
IN THE OFFICIAL WEBSITE OF THE R1
(IA NO.7956/2017)
EXHIBIT P10: COPY OF THE WEBSITE PAGE OF THE KERALA
PUBLIC WORK DEPARTMENT.
EXHIBIT P11: COPY OF THE RELEVANT PAGES OF REVISED
EDITION OF PWD MANUAL 2012.
EXHIBIT P12: COPY OF THE CERTIFICATE OF EXPERIENCE DT
20/6/2017 ISSUED BY THE R1.
RESPONDENT(S)' EXHIBITS :
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EXT.R1(a): COPY OF THE RELEVANT PAGE OF THE REVISED
PWD MANUAL
//TRUE COPY//
P.A. TO JUDGE
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P.B.SURESH KUMAR, J.
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W.P.(C).No.16737 of 2017
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Dated this the 1st day of August, 2017
J U D G M E N T
The petitioner is a registered contractor. Ext.P5 is a tender invitation made by the first respondent to execute a road work. It is stipulated in Ext.P5 invitation that only contractors who have successfully completed at least one similar work costing more than 40% of the probable amount of contract (PAC) of the subject work during the last five years, are entitled to participate in the tender process. The petitioner has not executed till date a similar work costing more than 40% of the PAC of the subject work. Nevertheless, he submitted his bid in response to the said invitation and thereafter instituted W.P.(c).No.16737 of 2017 : 2 : this writ petition seeking, among others, a direction to the respondents to consider his bid also for award of the work. The case of the petitioner is that Ext.P6 is the standard bid document finalised by the Government for works costing upto Rs.5,00,00,000/-; that Ext.P6 standard bid document does not contain a stipulation as contained in Ext.P5 invitation and therefore, the conduct of the first respondent in stipulating a qualification criteria as referred to above in Ext.P5 is illegal.
2. A counter affidavit has been filed by the first respondent. The stand taken by the respondents in the counter affidavit is that Ext.P5 invitation has been made in accordance with PWD Manual and Ext.P6 standard bid document relied on by the petitioner to substantiate his contention is only a draft of the standard bid document published by the department for reviews and discussion and the same is not an approved document. Paragraph 6 of the counter affidavit reads thus:
"6. The document produced as Exhibit P7 and P7 by the petitioner is only the draft published in the department for reviews and discussion. It is not an approved document. In the first page of W.P.(c).No.16737 of 2017 : 3 : that document itself, it is clearly stated that it is a "Draft for approval". As per PWD manual, it is clearly stated that post qualification tender shall be followed for works costing between Rs.100.00 Lakhs to Rs.500.00 Lakhs and Pre-qualified tender for works costing more than 5.00 Crore. Since the PWD Manual clause 1404.2.6 and 2004 clearly specify the procedure to be followed for post and pre-qualification tenders, the petitioner's contention is not sustainable in law."
3. Heard the learned counsel for the petitioner as also the learned Government Pleader.
4. As noted above, the specific contention of the respondents is that Ext.P6 is only a draft of the standard bid document published for reviews and discussion and the same is not an approved document. In so long as Ext.P6 is not an approved document, the respondents cannot be faulted for having not adopted the said bid document for award of the work.
5. The learned counsel for the petitioner, relying on Ext.R1(a) portion of the PWD Manual, contended that there cannot be any pre-qualification tenders in respect of works, the cost of which exceeds Rs.5,00,00,000/-. The relevant portion of Ext.R1(a) PWD Manual relied on by the petitioner reads thus:
W.P.(c).No.16737 of 2017 : 4 :
"For work costing above Rs.5 crores pre qualification tender shall be followed. The criteria for the evaluation shall be prescribed in the bidding document."
True, the Manual provides that for works costing above Rs.5,00,00,000/-, pre-qualification tender shall be followed. The above provision, according to me, cannot be relied on to contend that there shall not be any pre-qualification tender for works costing below Rs.5,00,00,000/-. The petitioner has no case in the writ petition that the impugned stipulation is included in Ext.P5 invitation maliciously to exclude the petitioner and other similarly placed from participating in the tender. In the absence of such a case, stipulations of the instant nature can only be understood as stipulations introduced in public interest.
In the said view of the matter, I do not find any merit in the writ petition and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR JUDGE rsr