Karnataka High Court
Ravindra vs State Of Karnataka on 28 February, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO. 3871/2022 (GM-TEN)
BETWEEN:
1. NORTH KARNATAKA
CIVIL CONTRACTORS ASSOCIATION,
DHARWAD
PETITIONER NO.1 IS DELETED VIDE
COURT ORDER DATED 28.02.2022
2. RAVINDRA
S/O RAMACHANDRA RAO MANE
AGE:61 YEARS
OCC: CLASS-I CIVIL CONTRACTOR
R/O "LAKSHMI KUNJI"
NEAR RAILWAY STATION
BAGALKOT-587101.
...PETITIONER
(BY SRI HALASHETTI JAGADISH SIDDARAMAPPA, ADV.)
AND:
1. STATE OF KARNATAKA
R/BY ITS PRINCIPAL SECRETARY
VIDHANA SOUDHA
BENGALURU-560001.
2. STATE OF KARNATAKA
R/BY ITS ADDITIONAL
CHIEF SECRETARY TO THE
PUBLIC WORKS DEPARTMENT
2
VIKASA SOUDHA
BENGALURU-560001.
3. STATE OF KARNATKA
R/BY ITS SECRETARY TO THE
PUBLIC WORKS DEPARTMENT
VIKASA SOUDHA
BENGALURU-560001.
4. CHIEF PROJECT OFFICER
PROJECT IMPLEMENTATION UNIT
STATE HIGHWAY DEVELOPMENT PROJECT
PWD ANNEXED BUILDING
K.R.CIRCLE, BENGALURU-01.
5. CHIEF ENGINEER
PROJECT IMPLEMENTATION UNIT
STATE HIGHWAY DEVELOPMENT PROJECT
PWD ANNEXED BUILDING
K.R.CIRCLE, BENGALURU-01
...RESPONDENTS
(BY SRI DHAYAN CHINNAPPA, AAG A/W
SRI M .VINOD KUMAR, AGA FOR C/R5
SRI MANU K, ADV. FOR R4 & R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
CONDITION AS TO SUBMISSION OF TENDERS IN KW-4
STANDARD BID DOCUMENT MENTIONED IN SHORT TERM
TENDER NOTIFICATIONS NO.1/2021-22, DATED 17.01.2022,
NO.2/2021-22, DATED 17.01.2022, NO.3/2021-22, DATED
17.01.2022, NO.5/2021-22, DATED 19.01.2022, NO.6/2021-22,
DATED 19.01.2022, NO.7/2021-22, DATED 19.01.2022,
ISSUED BY R5, WHICH ARE PRODUCED AT ANNEXURE-J TO P
AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
Petitioner is before this Court under Articles 226 of the Constitution of questioning the calling of tender in "KW-4 Standard Bid Document" mentioned in short term tender notification bearing No.1/2021-22 dated 17.01.2022; short term tender notification bearing No.2/2021-22 dated 17.01.2022; short term tender notification bearing No.3/2021-22 dated 17.01.2022; short term tender notification bearing No.5/2021-22 dated 19.01.2022; short term tender notification bearing No.6/2021-22 dated 19.01.2022; and short term tender notification bearing No.7/2021-22 dated 19.01.2022 issued by respondent No.5 (Annexures-J to P) and for a writ of mandamus or any other writ or order directing the 5th respondent to prescribe "KW-6 Standard Bid Document" for submission of tenders through e-procurement in the place of KW-4 Standard Bid Document mentioned in the above stated short term tender notifications. 4
2. Heard Sri Halashetti Jagadish Siddaramappa, learned counsel for the petitioner and Sri Dhyan Chinnappa learned AAG for respondent-State along with Sri.M.Vinod Kumar, learned Additional Government Advocate.
3. Learned counsel for the petitioner would submit that the petitioner is a Class-I Civil Contractor and in view of unreasonable conditions in the Tender Notification under question, the petitioner would not be entitled to submit his tender. The petitioner invites attention of this Court to Tender Notification at Annexure-Q and submits that the tender is called in Form No.KW-4 and the respondents- authorities ought to have called the tender in KW-6, relying upon the Government Order dated 06.08.2005. It is his submission that the Government Order dated 06.08.2005 mandates calling of tender in KW-6 format wherever the amount put to tender is more than Rs.10.00 Crores and it would also permit submission of tender by joint venture. Since, calling of tender in KW-4 Form is opposed to 5 Government Order dated 06.08.2005, he prays for a direction to the respondents to adhere to the Government Order dated 06.08.2005 and call the tender in KW-6 Form and to permit the submission of joint venture tender, since the amount put to tender is more than Rs.10.00 Crores.
4. Nextly, learned counsel contends that the condition at clause 3.2 of the Tender Notification prescribes tender qualification that each tenderer in his name should have mandatorily in the last 5 financial years i.e., 2016-17, 2017-18, 2018-19-, 2019-2020 and 2020-21 achieved in at least two financial years a minimum financial turnover of 2622.31 lakhs and condition No.3.2(b) of the Tender Notification requires a tender satisfactory completion as prime Contractor, at least one similar work to an extent of 50% of the amount put to tender is arbitrary and unreasonable. According to the learned counsel, those conditions or qualifications are prescribed only to favour few Contractors and to eliminate few Contractors. According to 6 the learned counsel the said qualification curtails many of the contractors from participating and applying in pursuance of the Tender Notification under question.
5. Learned counsel would submit that the Tender Notification is in violation of Rule 17 of the Karnataka Transparency in Public Procurements Rules, 2000 ("2000 Rules" for short). It is his submission that the respondents ought to have provided 30 days time for submission of tender, since the amount put to tender is more than Rs.10.00 Crores. Having not provided 30 days time, the same would be in violation of Rule 17 of 2000 Rules and vitiates the entire tender process. In support of his contention that respondents ought to have called tender in Form No.KW-6 and not in Form No.KW-4, he relies upon the decision of the co-ordinate bench of this Court in K.K.BUILDERS v/s STATE OF KARNATAKA AND OTHERS reported in MANU/KA/0791/2008.
6. Per contra, learned Additional Advocate General appearing on behalf of the State submits that the Government 7 Order dated 06.08.2005 was modified under the Government Order dated 14.10.2008 in view of the difficulty expressed by the Department in implementation of the Standard Bid Tender Documents. He invites attention of this Court to clause 16 in the Government Order dated 14.10.2008 which permitted the respondents-authority to invite tenders in KW-4 Form wherever the cost of tender is more than Rs.10.00 Crores. Thus, he submits that the decision of this Court in K.K.BUILDERS (supra) would have no application to the present case since the said Government Order is earlier to the Government Order dated 14.10.2008. Even though the decision is subsequent to the Government Order, the said Government Order was not brought to the notice of this Court.
7. Learned AAG submits that it is not for the petitioner to seek for alteration of the tender conditions. It is for the Tender Inviting Authority to incorporate the conditions depending on the tender work. The financial conditions are 8 incorporated to assess the tenderer financial capacity as well as capacity to implement the work. It also depends on the resources of the tenderer to carry out the work. Thus, he submits that the condition imposed i.e., one should have achieved at least turnover of Rs.2622.31 Lakhs work at least during previous two financial years is not unreasonable and in the interest of public, the said condition is incorporated. With regard to the contention of the petitioner that since the time prescribed under Rule 17 is not provided, he submits that since the petitioner is not qualified to apply to the tender, providing 30 days or 60 days time would not matter to the petitioner. Thus, he prays for dismissal of the writ petition.
8. As could be seen from Annexure-Q/Standard Bidding Document, tender works are for more than Rs.15.00 Crores to Rs.30.00 Crores. Statement of objections filed by respondents No.4 and 5 indicates that the work involved is 177 packages consisting of 4 parts i.e., 49 packages which are less than Rs.10.00 crores, 11 packages between Rs.10.00 9 to 15.00 Crores, 111 packages which are between Rs.15.00 to Rs.30.00 Crores, 6 packages above Rs.30.00 Crores. The petitioner has produced only one document pertaining to Single package. The Government Order dated 06.08.2005 prescribes Form KW-6 for works more than Rs.10.00 Crores and it also permits to submit tender by joint venture. But, subsequently, in view of the difficulty expressed by the Public Works Department, the Government modified the Government Order dated 06.08.2005 under Government Order dated 14.10.2008. Clause 16 of the said Government Order states that as far as the works of value Rs.10.00 Crore and above, KW-4 shall be adopted. Thus, I am of the view that calling of tender under Form No.KW-4 is proper and correct. The contention of the petitioner that individual contractor would not be in a position to fulfill the qualification prescribed by the Tender Inviting Authority and only if the joint venture is permitted, it would help the tenderers to submit the tenders by joint venture cannot be accepted. It is not for this Court to prescribe the conditions of tender and it 10 is for the Tender Inviting Authority to prescribe the conditions depending upon the nature of work. The financial qualification or condition that one should have turnover of Rs.2622.31 atleast during two pervious financial years and that a tenderer who has completed as prime contract at least one similar work to an extent of 50% of the amount put to tender, in the facts of the present case cannot be held as unreasonable or arbitrary, to the nature and volume of work tendered. The technical and financial conditions are to be prescribed based on the amount put to tender and the volume of work tendered. Ultimately, action of the State should be fair and reasonable.
9. The Hon'ble Apex Court in the case of M/S.MICHIGAN RUBBERS (INDIA) LIMITED v/s STATE OF KARNATAKA AND OTHERS reported in (2012) 8 SCC 216 has held as follows:
"23. From the above decisions, the following principles emerge:11
(a) The basic requirement of Article 14 is fairness in action by the State, and non-
arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State much act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entire within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the 12 State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government."
A reading of the above principles laid down by the Hon'ble Apex Court makes it clear that it is not for the Courts to interfere with the tender process unless it is established or demonstrated that the condition is unreasonable, malafide and are incorporated only to favour certain individuals. Here, it is not the case of the petitioner that those conditions are 13 incorporated only to favour an individual or certain class of persons.
10. The tender document Annexure-Q prescribes technical and financial qualification for a tenderer to participate in the tender process. The tender qualification or conditions are incorporated to ensure that the Contractor has capacity and resources to successfully execute the work. This Court would not be in a position to assess the capacity and the resources of the petitioner to execute the work and it is best left to the Tender Inviting Authority.
11. The contention that the Tender Notification is in violation of Conditions of 2000 Rules is not available to the petitioner, since he is not qualified and he has not participated in the tender process. Learned AAG submits that today, technical bid is opened and evaluation is in progress. Moreover the petitioner cannot dictate or seek alteration of the tender conditions to suit him. Thus, I am of the view that the petitioner has not made out any ground to 14 entertain the writ petition. Accordingly, the writ petition stands rejected.
Sd/-
JUDGE mpk/-* CT:bms