Kerala High Court
Marine Electricals (India) Limited vs Cochin Port Trust on 16 January, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941
WP(C).No.678 OF 2020(H)
PETITIONER:
MARINE ELECTRICALS (INDIA) LIMITED
B1, UDYOG SADAN 3, MIDC, ANDHERI EAST,
MUMBAI-400093,
REPRESENTED BY ITS CDR.RAJEEV MALHOTRA(RETD),
CHIEF OPERATING OFFICER AND AUTHORIZED
SIGNATORY.
BY ADVS.
SRI.K.I.MAYANKUTTY MATHER
SRI.R.JAIKRISHNA
KUM.NARAYANI HARIKRISHNAN
RESPONDENTS:
1 COCHIN PORT TRUST
REPRESENTED BY ITS CHAIRPERSON,
WILLINGTON ISLAND P.O., KOCHI-682003.
2 THE DEPUTY CONSERVATOR,
OFFICE OF THE DEPUTY CONSERVATOR,
COCHIN PORT TRUST, WILLINGTON ISLAND P O,
KOCHI-682003.
3 WARTSILA VOYAGE LIMITED,
1A, TECHNIPLEX 2 BUILDING,
VEER SAVARKAR FLYOVER, UDYOG NAGAR,
GOREGAON WEST, MUMBAI-400062,
REPRESENTED BY ITS DIRECTOR.
R1-2 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
SR. ADV. V.V. ASHOKAN FOR PETITIONER AND SR.,
ADV. JOSEPH MARKOSE FOR THE RESPONDENT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.01.2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No.678 OF 2020(H) 2
JUDGMENT
This writ petition is filed seeking the following prayers:-
"i) Call for the records of the case from the 2nd respondent in respect of E-tender No. DC/VTMS/2019.
"Upgradation of existing Vessel Traffic Management System (VTMS) of Cochin Port Trust and Comprehensive Maintenance (AMC) of the system for next 5 years" and declare by an appropriate writ, or order that the stand taken by the 2nd respondent (through Ext. P3) to disqualify the petitioner in the technical bid as illegal arbitrary and consequently annul the same and issue an appropriate writ or order directing the respondents 1 and 2 to consider the price bid offered by the petitioner and then to proceed to award the work to the successful L1.
ii) Issue an appropriate writ or order declaring that the steps being taken to award the subject work to the 3rd respondent reckoning them as L1 in the price bid is irregular, illegal and null and avoid under the facts and circumstances of the case.
iii) Issue an appropriate writ or order in the nature of mandamus directing the respondents 1 and 2 to award the subject work to the petitioner alone, who being the lowest in the price bid submitted for the work.
iv) Issue a writ of mandamus or an appropriate writ or order directing the Ist respondent to consider Ext. P5 representation and to take a just decision in the matter to alleviate the grievances raised by the petitioner"WP(C).No.678 OF 2020(H) 3
2. Heard the learned senior counsel for the petitioner and the learned senior counsel appearing for respondents 1 and 2.
3. The contention of the petitioner is that the petitioner had submitted a bid in response to Ext.P1 notice of tender as a Joint Venture with a consortium partner, i.e., M/s. Xanatos Marine Ltd., having registered office on at 1631, Dickson Avenue, Suite 1100, Kelowna, BC VI YOB5, Canada. It is submitted that all documents substantiating the Joint Venture agreement between the petitioner and the consortium partner as well as the supporting documents evidencing the experience and meeting the criteria prescribed in Ext.P1(a) had been uploaded by the petitioner in the E-tender portal. However, it is submitted that the technical bids were opened on 20.12.2019 and by communication dated 02.01.2020, the petitioner was informed that the technical bid had been rejected. The reason stated in Ext.P3 email for the rejection of the bid was as follows :- "not meeting the Minimum Qualifying criteria". WP(C).No.678 OF 2020(H) 4
4. It is submitted by the learned senior counsel for the petitioner that the petitioner had submitted its bid making clear its intention to bid as the Joint Venture and had appended all the necessary supporting documents to prove that the bid was being submitted as a Joint Venture. It is contended that Exhibit P4 would show that in the pre bid meeting also the petitioner had raised a specific query, whether the experience of the member of the consortium would be accepted to meet the minimum qualifying criteria and the answer was in the affirmative. It is therefore contended that the intention of the petitioner was to bid as a Joint Venture was clear from the bid submitted by him. However, it is contended that the respondents are taking a highly technical stand to reject the bid on the ground that the bid was not submitted specifically stating it to be as a Joint Venture. It is contended that out of the seven bidders, three bidders including the petitioner were disqualified in the technical bid and the remaining four were considered for opening the price bid. It is contended that the financial bid has been opened and the work is going to be awarded to the 3rd respondent, who had bid for an amount 15% higher than WP(C).No.678 OF 2020(H) 5 the financial bid submitted by the petitioner. It is further contended by the learned counsel for the petitioner that the form appended to Exhibit P1 tender notice for submission of the bid had a column for entering the full name of the firm and did not have any provision for entering the name of the consortium partners in the case of a Joint Venture. It is submitted that the petitioner was therefore misled by the lack of space for entering the name of the Joint Venture partner in the bid form appended to Exhibit P1. It is contended that since the bid met all the other criteria of eligibility, the rejection of the same on ground that it is not filed in the name of the Joint Venture is completely unsustainable.
5. A counter affidavit has been filed on behalf of respondents 1 and 2. It is contended that clause 3.4.5(a) of Exhibit P1 tender notice specifically stated that in case of a Joint Venture/consortium, the tender should be submitted in the name of the Joint Venture/consortium firms. It is stated that clause 3.4.5(e) of the tender conditions further specified that the most experienced partner shall be nominated as the lead partner and the most experienced partner shall be WP(C).No.678 OF 2020(H) 6 identified based on the total value of the eligible works done by the partners as per the annexure to the tender document. It is submitted that the bid submitted by the petitioner would show that the entire experience entered was in respect of the consortium partner as is evident from Form No.7.7 submitted by the petitioner and that as such the said consortium partner ought to have been the lead partner. It is submitted that the answer given to the petitioner in Exhibit P4 would have no effect in view of the fact that the petitioner had not submitted the bid as a Joint Venture or consortium. It is further contended by the learned Senior Counsel appearing for the respondents that the consortium partner of the petitioner has neither been shown as a petitioner in this writ petition nor even he impleaded as a respondent.
6. It is submitted that the contention that the bid has been rejected without stating any reason is also not a sustainable ground for a challenge in view of the decision of the Apex Court in Silpi Constructions Contractors Vs. Union of India and others [SLP (Civil) Nos.13802 to 13805 of 2019]. Relying on a decision of the Apex Court in Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation WP(C).No.678 OF 2020(H) 7 Ltd. and others [(2016) 16 SCC 818], it is contended by the learned Senior Counsel for the respondents that this court is not expected to substitute its understanding and appreciation of the tender documents for that of the employer or the tender inviting authority, unless there is evident mala fides or perversity in the understand or appreciation by the said authority. It is stated that unless the interpretation given by the tender inviting authority is seen to be perverse or mala fide or intended to favour one of the bidders, this Court has no reason to interfere with such an interpretation. It is contended that in view of the clear provisions contained in clause 3.4 of Ext.P1 and in view of the admitted fact that the petitioner had submitted its bid not as a joint venture but as an individual firm, the rejection of the bid was perfectly in order and is not liable to be interfered with.
7. The learned counsel points out that Form No.7.7 appended along with the bid documents submitted by the petitioner would itself show that the experience claimed was totally the experience of the consortium partner. However, the bid had been submitted, as is evident from the WP(C).No.678 OF 2020(H) 8 documents produced by the respondents, in the name of the petitioner alone. It is submitted that Exhibit R1(k) is a screen shot of the options available in the website for selecting the nature of the bid as either individual Company, Joint Venture or otherwise. The petitioner has specified that his bid was as a company. Ext.R1(l) produced by the respondents would show that the bid of the petitioner has specifically not entered as a joint venture bid but was entered as a bid by an individual company. It is stated that the work tendered was with regard to the upgradation of the system for Vessel Traffic Management and that since the system presently in use urgently needs replacement, there is urgency in the matter of carrying out the work.
8. I have considered the contentions advanced. The specific case of the petitioner is that the bid having been made in the name of the petitioner company was evidently a bid by the Joint Venture/consortium firms and that the intention to bid as a Joint Venture was evident from the annexures produced along with the bid document. The bid conditions as provided in the tender notice specified that in the case of a Joint Venture/consortium, the tender should be WP(C).No.678 OF 2020(H) 9 submitted in the name of the Joint Venture/ consortium firms. It is not in dispute that the tender was not submitted by the petitioner as a Joint Venture. In the above view of the matter, the contention raised by the learned senior counsel appearing for the petitioner that the rejection of the bid on that ground was hypertechnical, cannot be accepted.
9. The condition in 3.4.5(e) that the more experienced partner should be the lead partner of the Joint Venture also has not been observed by the petitioner since the petitioner firm did not claim any experience in the nature as required in Exhibit P1. The documents produced by the petitioner as well as the respondents would show that the experience claimed by the petitioner was in respect of the Joint Venture partner.
10. In the above view of the matter, the reasons stated for rejection of the bid that the more experienced partner was not shown as the lead partner also cannot be said to be an unsustainable contention. Though the petitioner has stated in the writ petition that the rejection of his technical bid is only to favour the successful bidder, I am of the opinion that a bland statement to that effect by itself cannot have WP(C).No.678 OF 2020(H) 10 the effect of the rejection of the technical bid of the petitioner invalidating in view of the fact that the rejection is supported by reasons which are referable to Exhibit P1 tender notice itself. I am of the opinion that in the instant case this Court would not be justified in interfering with the rejection of the technical bid of the petitioner on the grounds raised in the writ petition.
The writ petition fails and the same is accordingly, dismissed.
Sd/ ANU SIVARAMAN JUDGE SAB WP(C).No.678 OF 2020(H) 11 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TENDER NOTIFICATION CONTAINING INSTRUCTIONS PUBLISHED BY 2ND RESPONDENT DATED NIL.
EXHIBIT P1(A) TRUE COPY OF THE CORRIGENDUM PUBLISHED BY THE TENDERING AUTHORITY AFTER PRE-BID DISCUSSION DATED 18.11.2019.
EXHIBIT P2 TRUE COPY OF THE JOINT BIDDING AGREEMENT DATED 10.12.2019.
EXHIBIT P2(A) TRUE COPY OF THE NOTARIZED POWER OF ATTORNEY DATED 10.12.2019.
EXHIBIT P3 TRUE COPY OF THE E-MAIL COMMUNICATION GIVEN TO THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 02.01.2020.
EXHIBIT P4 TRUE COPY OF THE CLARIFICATION ISSUED BY THE 1ST RESPONDENT DATED NIL.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 7.1.2020.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A TRUE COPY OF FORM 7.1 FORM OF
PARTICULARS OF MARINE ELECTRICALS
(INDIA) LIMITED DATED 18.12.2019
EXHIBIT R1 B TRUE COPY OF FORM 7.2 EXPERIENCE RECORD
OF MARINE ELECTRICALS (INDIA) LIMITED
DATED NIL
EXHIBIT R1 C TRUE COPY OF FORM 7.3 SERVICE BACKUP OF
MARINE ELECTRICALS (INDIA) LIMITED DATED NIL.
EXHIBIT R1 D TRUE COPY OF FORM 7.4 KEY PROJECT PERSONNEL FOR THE EXECUTION OF PROJECT OF MARINE ELECTRICALS (I) LIMITED DATED NIL WP(C).No.678 OF 2020(H) 12 EXHIBIT R1 E TRUE COPY OF FORM 7.5 SUB CONTRACTOR'S DATA OF MARINE ELECTRICALS (INDIA) LIMITED DATED NIL EXHIBIT R1 F TRUE COPY OF FORM 7.6 FINANCIAL DATA OF MARINE ELECTRICLAS (INDIA) LIMITED DATED NIL EXHIBIT R1 G TRUE COPY OF FORM 7.7. CONSORTIUM -
DETAILS OF PARTNER OF MARINE ELECTRICALS INDIA) LIMITED DATED NIL.
EXHIBIT R1 H TRUE COPY OF LETTER DATED 20.12.2019 ISSUED BY THE PETITIONER MARINE ELECTRICALS (INDIA) LIMITED ISSUED TO THE 2ND RESPONDENT.
EXHIBIT R1 I TRUE COPY OF THE UNDERTAKING DATED NIL ISSUED BY THE PETITIONER MARINE ELECTRICALS (INDIA) LIMITED ISSUED TO THE 2ND RESPONDENT.
EXHIBIT R1 J TRUE COPY OF FORM 7.1 FORM OF
PARTICULARS SUBMITTED BY ANOTHER
TENDERER DATED 18.12.2019.
EXHIBIT R1 K TRUE COPY OF SCREEN SHOT OF THE
REGISTRATION PAGE FOR BIDDERS IN THE
E-PORTAL
EXHIBIT R1 I TRUE COPY OF SCREEN SHOT OF THE
E-PORTAL.