Karnataka High Court
M/S Nsl-Klsr Jv vs State Of Karnataka on 16 May, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No. 7132 OF 2023 (GM-TEN)
C/W
WRIT PETITION No. 7734 OF 2023 (GM-TEN)
IN WRIT PETITION No. 7132 OF 2023
BETWEEN:
M/S. NSL-KLSR JV
AT NO. 93, SAI COMPLEX,
4TH FLOOR, 1ST 'A' MAIN ROAD,
1ST STAGE, A SECTOR,
YELAHANKA NEW TOWN,
BENGALURU - 560 064.
REPRESENTED BY
SRI NITIN P.N., LEAD PARTNER
... PETITIONER
(BY SRI D.R.RAVISHANKAR, SENIOR ADVOCATE A/W
SRI SARAVANA S, ADVOCATE)
AND:
1. STATE OF KARNATAKA
RURAL DRINKING WATER AND
SANITATION DEPARTMENT,
VIDHANA SOUDA, AMBEDKAR VEEDHI
BENGALURU - 560 001.
REPRESENTED BY ITS SECRETARY.
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2. THE COMMISSIONER,
RURAL DRINKING WATER AND
SANITATION DEPARTMENT,
CAUVERY BHAVAN, K.G.ROAD,
BENGALURU - 560 009.
3. THE CHIEF ENGINEER,
RURAL DRINKING WATER AND
SANITATION DEPARTMENT,
CAUVERY BHAVAN, K.G.ROAD,
BENGALURU - 560 009.
4. EXECUTIVE ENGINEER,
RURAL DRINKING WATER AND
SANITATION DEPARTMENT,
MYSURU DIVISION.
5. KEKADA APPAIAH NANDA
[SREE SUBHA SALES]
KEKADA APPAIAH NANDA
1ST PHASE, 3RD FLOOR, 13TH CROSS
1ST PHASE, CHANDRA LAYOUT
BENGALURU - 560 040.
... RESPONDENTS
(BY SRI NISHANTH A. V AND
SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATES FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE
RESPONDENTS TO CONSIDER PETITIONERS PRICE BID FOR IN THE
TENDER NO.39/2022 DATED 25.01.2023 AND PUBLISHED ON
01.02.2023 FOR THE WORK WATER SUPPLY SCHEME TO
BACHANAHALLY AND OTHER 276 HABITATIONS IN HUNSUR TALUK
MYSORE DIST. THROUGH DESIGN, BUILD OPERATE AND TRANSFER
(DOBT) MODE VIDE ANNEXURE-B.
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IN WRIT PETITION NO. 7734 OF 2023
BETWEEN:
SRI NITHIN P. N,
S/O P.N.NAGABUSHAN
AGED ABOUT 29 YEARS,
DIRECTOR,
NSL CONSTRUCTIONS PRIVATE LIMITED
# 93, 4th FLOOR, SAI COMPLEX,
1ST 'A' MAIN, 1ST PHASE, SECTOR-A
YELAHANKA NEW TOWN,
BENGALURU - 560 064.
COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 2013
... PETITIONER
(BY SRI D.R.RAVISHANKAR, SENIOR ADVOCATE A/W.,
SRI SARAVANA S, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
RURAL DRINKING WATER SUPPLY AND
SANITATION DEPARTMENT,
VIDHANA SOUDHA
DR. B.R.AMBEDKAR VEEDHI
BENGALURU - 560 001.
REPRESENTED BY ITS SECRETARY.
2. THE COMMISSIONER
RURAL DRINKING WATER SUPPLY AND
SANITATION DEPARTMENT,
CAUVERY BHAVAN, K.G.ROAD,
BENGALURU - 560 009.
3. THE CHIEF ENGINEER
RURAL DRINKING WATER SUPPLY AND
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SANITATION DEPARTMENT
CAUVERY BHAVAN, K.G.ROAD,
BENGALURU - 560 009.
4. THE EXECUTIVE ENGINEER
RURAL DRINKING WATER SUPPLY AND
SANITATION DIVISION,
MYSURU DIVISION,
MYSURU - 570 001.
5. SREE SUBHA SALES
R/O 1ST PHASE, 3rd FLOOR,
13th CROSS, 1st PHASE
CHANDRA LAYOUT,
BENGALURU - 560 046.
REPRESENTED BY ITS PROPRIETOR,
SRI KEKADA APPIAH NAND
(IS IT FIRM OR PROPRIETORSHIP)
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE
FINANCIAL BID OF THE PETITIONERS TO BE CONSIDERED ALONG
WITH THE FINANCIAL BID OF THE 5TH RESPONDENT IN ARRIVING
AT A FRESH FINANCIAL BID EVALUATION BY SETTING ASIDE THE
TENDER SCRUTINY TENDER COMMITTEE PROCEEDINGS
DISQUALIFYING THE TENDER BID OF THE PETITIONER PURSUANT
ISSUANCE OF TENDER NOTIFICATION ISSUED BY R4 AS PER
ANNEXURE-A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.04.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
M/s NSL-KLSR JV is common petitioner in both the writ petitions. Petitioner in the former writ petition is represented by its Director and the latter writ petition is filed by the Director seeking a writ of mandamus to the official respondents to consider the bid of the petitioner for the tender floated by the respondents. The issue in both these petitions is similar and therefore, they are taken up together and considered by this common order.
2. Brief facts that lead the petitioner to this Court in the subject petitions, as borne out from the pleadings, are as follows:-
The respondents issued notice inviting tender for a water supply scheme to Bachanahally and other 276 habitations in Hunsur Taluk, Mysore District through Design, Build, Operate and Transfer mode under Jal Jeevan Mission. The tender was invited on 25-01-2023. The petitioner along with the 5th respondent and another tenderer participated in the tender process by submitting their bids. The petitioner claims that on coming to know that its technical bid was being rejected knocked at the doors of this Court in the first of the writ petition seeking a direction to accept its 6 technical bid as it was technically qualified for a consideration and award of contract. During the pendency of Writ Petition No.7132 of 2023, the bid of the 5th respondent was accepted and in his favour a letter of intent was sought to be issued. At that stage, the petitioner prefers an appeal before the Appellate Authority and the Appellate Authority rejects the appeal inter alia on the ground that the bidder has filed Writ Petition No.7132 of 2023 and the same is pending consideration at the hands of this Court. This forms the challenge in Writ Petition No.7734 of 2023. Therefore, both the petitions arose out of a single cause of action of consideration of bid of the petitioner.
3. Heard Sri D.R. Ravishankar, learned senior counsel appearing for the petitioner, Sri Vinod Kumar M, learned Additional Government Advocate for respondents 1 to 4 and Sri A.V. Nishanth, learned counsel appearing for respondent No.5.
4. The learned senior counsel representing the petitioner would vehemently contend that the petitioner was fully qualified to be considered for issuance of work order as identical works have 7 been executed by the petitioner in the past and therefore, there was no warrant for a technical qualification of the petitioner. The learned senior counsel would emphasize on the fact that there is a huge difference of Rs.20/- crores between the bid submitted by the petitioner and the bid accepted of the 5th respondent and, therefore, this Court should interfere and obliterate entire proceedings and direct fresh tender process to be conducted or award the contract in favour of the petitioner.
5. On the other hand, the learned Additional Government Advocate would vehemently refute the submissions to contend that the petitioner is knocking at the doors of this Court at every stage once a letter of intent is issued in favour of the 5th respondent. His remedy would be to file an appeal before the Appellate Authority under Section 16 of the Karnataka Transparency in Public Procurements Act, 1999 ('the Act' for short). He would further contend that technical disqualification of the petitioner has come about on its own act as it tried to influence the Tender Scrutiny Committee to accept its bid. If such practices were to be permitted, then it would lead to permitting corrupt practices in the 8 process of tender and, therefore, such tenderers should not be entertained is what the Tender Scrutiny Committee has opined and finding the 5th respondent to be equally qualified has awarded the tender in his favour. He would seek dismissal of the writ petitions.
6. The learned counsel representing the 5th respondent would refute the submissions by taking this Court through the documents appended to the petition and seeks to demonstrate that the petitioner did indulge in influencing the Tender Scrutiny Committee and, therefore, the decision taken is valid in the eye of law. It is his submission that the 5th respondent is also equally qualified to undertake the project. The learned counsel would take this Court through several documents to demonstrate that the entire work is now awarded to the 5th respondent and the 5th respondent has furnished Bank guarantee and an agreement is executed by the State with the 5th respondent. He would seek dismissal of the petitions.
7. The learned senior counsel in reply to the submissions would contend that what the petitioner intended was only to bring it to the notice of the Tender Scrutiny Committee that they are in fact 9 eligible to be considered when it came to know that its technical qualification would be rejected. He would emphasize that no fault can be found with the representation made by the tenderer during the tender process and would further submit that if the contract is not awarded to the petitioner, the State would suffer loss of Rs.20/- crores.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The notice inviting tender is issued by the 4th respondent/Executive Engineer, Rural Drinking Water and Sanitation Department, Mysore for the work of Water Supply Scheme to Bachahally and other 276 Habitations in Hunsur Taluk, Mysore District through Design, Build, Operate and Transfer mode under Jal Jeevan Mission. The petitioner along with other tenderers submitted their bids. The evaluation of tenders and scrutiny of documents is under the tender document itself. Therefore, certain provisions of the tender document which are necessary to be considered for the issue brought before this Court in the subject lis 10 are germane to be noticed. Clause 15 deals with submission of tenders. Clauses 16, 17 and 18 deal with the cutoff date, rejection, modification and withdrawal of tenders. Clauses 19 onwards deal with tender opening and evaluation. Clause 26 deals with award of contract. What are necessary to be noticed, in the case at hand, are clauses 21 and 22 and they read as follows:
"21. Process to be confidential 21.1. Information relating to the examination, clarification, evaluation, and comparison of Tenders and recommendations for the award of a contract shall not be disclosed to Tenderers or any other persons not officially concerned with such process until the award to the successful Tenderer has been announced. Any effort by a Tenderer to influence the Employer's processing of Tenders or award decisions may result in the rejection of his Tender.
22. Clarification of Tenders 22.1. To assist in the examination, evaluation, and comparison of Tenders, the Employer may, at its discretion, ask any Tenderer for clarification of his Tender, including break downs of unit rates. The request for clarification and the response shall be in writing or by cable, but no change in the price or substance of the Tender shall be sought, offered, or permitted except as required to confirm the correction of arithmetic errors discovered by the Employer in the evaluation of the Tenders in accordance with Clause 24.11
22.2. Subject to sub-clause 22.1, no Tenderer shall contact the Employer on any matter relating to its Tender from the time of the Tender opening to the time contract is awarded. If the Tenderer wishes to bring additional information to the notice of the Employer, it shall be in writing.
22.3. Any effort by the Tenderer to influence the Employer in the Employer's Tender evaluation, Tender comparison, or contract award decisions may result in the rejection of its Tender."
(Emphasis added) Clause 21 depicts that the process of tender to be confidential. It clearly observes that any effort by a tenderer to influence the employer's processing of tenders or award decisions may result in rejection of his tender. Clause 22 deals with clarification of tenders. Clause 22.3 further directs that any effort by the tenderer to influence the employer's tender evaluation, tender comparison, or contract award decisions may result in the rejection of its tender. As observed hereinabove, the petitioner submits its bid. The bid was sought to be evaluated for technical qualification. The averment in the petition is that the petitioner was given a tip of that his technical qualification would be rejected. This forms the pleading at paragraph-7 in W.P.No.7734 of 2023 which reads as follows:
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"7. The petitioners having been tipped of or otherwise having felt suspicious about the manner in which the processes were undertaken, had nd corresponded with the 2 respondent with a copy marked to the 3rd respondent that efforts were being made to disqualify the petitioners and the communication contained that other similar projects had been awarded by the very department and requested for qualifying the technical bid by strictly following the Karnataka Transparency in Public Procurements Act, 1999 and that justice would prevail in the department............."
(Emphasis added) The pleading is that the petitioner having been tipped of or otherwise felt suspicious about the manner in which the process was undertaken, had corresponded with the 2nd respondent with a copy marked to the 3rd respondent that efforts were being made to disqualify the petitioner and the communication contained that the petitioner had undertaken similar projects awarded by the very department and requested for qualifying the technical bid by strictly following the provisions of the Act.
10. What would unmistakably emerge from the aforesaid statement is that when the Tender Scrutiny Committee was evaluating the tender documents of all the tenderers, the petitioner 13 comes to know that its technical bid would be rejected. The petitioner was in conversation with the officials of the respondents. It becomes germane to notice the communication made in terms of the said averment. The communication comes about on 14-03-2023 and it reads as follows:
"To Commissioner, Rural Drinking Water Supply and Sanitation Department, Bangalore.
Respected sir, Sub: Regarding "Multi Village Water Supply scheme to Bachahally and other 276 habitations in Hunsur taluk of Mysore District through DBOT mode"
Dear sir, Our company, NSL Constructions private Ltd., is one of the most reliable and credible entity with more than 3 decades of excellence in Engineering and Construction works.
With reference to the above said subject , we would like to bring to your kind notice that our technical bid for the above said project is being tried for disqualification for submission of invalid tender documents. It is shocking to here, as the same documents were valid for below listed projects previously.
Projects:
1. Mandya District, K.R.Pete, Multi Village Water Supply scheme.
2. Chikkamagaluru District, Multi Village Water Supply scheme.14
3. Shivamogga District, Shikaripura Multi Village Water Supply scheme.
4. Mysore District, Bettadapura Multi Village Water Supply scheme.
For all the above said projects, under your chairmanship of tender scrutiny committee, our same tender documents have been approved previously. Further, except Mandya- Multi Village Water Supply scheme, LOA and work order for all other 3 projects have been already issued by your end. Hence, humbly requesting you to qualify our technical bid immediately as it is well known that KTPP is strongly followed and we believe justice prevails from your department.
Thanking you,"
(Emphasis added)
11. After submission of the bid and before any decision is taken on the technical evaluation, the aforesaid communication comes about. The communication clearly indicates that the petitioner is requesting to qualify its technical bid immediately and hoped that the Act would be followed and justice prevails. It is akin to a student communicating to an examiner who is evaluating an answer paper of the said student justifying the answers written to the questions posed in the question paper. This practice, therefore, would squarely fall within the ambit of Clause 22.3 where the tenderer is barred from influencing the employer in the tender 15 evaluation and tender comparison. What the petitioner wanted to do was to influence the employer in the tender evaluation, as according to it, the petitioner was to be non-suited on the technical evaluation. Further facts become clear from what is narrated in the statement of objections filed by the State. Paragraphs 11 to 14 of the statements of objections are germane to be noticed and they read as follows:
"11. It is submitted that the Petitioner has violated the major conditions of the tender which enables the scrutiny committee has no other option but to reject its technical bid. It is pertinent to mention that during the tender process the Petitioner attempted to influence the decision making process by physically attending to the office of the Respondent 2 and submitting a letter on 14.03.2023, canvasing that the petitioner was qualified in earlier tender invited by the Department and requested to qualify their technical bid Immediately. The Petitioner has influenced to qualify him immediately. This is an attempt to win the mind of the decision making process which is prohibited not only by the tender condition but also under the KTPP Act and Rules. The Copy of the letter is annexed herewith as ANNEXURE-R7.
12. The clause 22.3 INSTRUCTIONS TO TENDERERS (ITT) of the tender document states thus, "Any effort by the Tenderer to influence the Employer in the Employer's Tender evaluation, Tender comparison, or contract award decisions may result in the rejection of its Tender"
13. Rule 2 ab of the KTPP rule states thus, "fraudulent practice" means a misrepresentation off acts in order to influence a procurement process or the 16 execution of a contract to the detriment of the Procurement Entity, and includes collusive practice among the tenderers either prior to or after tender submission, designed to establish tender prices at artificial non-competitive levels and to deprive the Procurement Entity of the benefits of free and open competition;"
14. It is pertinent to mention that the tender has to be evaluated independently and qualification of the bidder in earlier tender does not stand that the bidder must be qualified in the tender and the earlier tenders mentioned in the letter by the bidder were with different entities of the Joint Venture. Therefore the authorities are more than justified in rejecting the technical bid of the Petitioner." The State in its affidavit clearly brings out that the petitioner made an attempt to influence the decision making process by physically attending to the office of the 2nd respondent and submitting a letter on 14-03-2023 canvassing that the petitioner was qualified in the earlier tender and, therefore, his technical bid should be accepted immediately.
12. The aforesaid averment stands to reason in terms of the documents produced by the petitioner itself - Annexure-G. Annexure-G is only a portion of the documents that is produced. The learned counsel representing the respondent No.5 has produced the entire set of documents. They are screen shots from a 17 computer of the Executive Engineer in his office. Those screen shots reveal that the tender would be awarded in favour of the 5th respondent. Annexure-G is only a print out from what is communicated to the petitioner while rejecting the appeal, but the entire document clearly reveals that the petitioner has sought to influence the Tender Scrutiny Committee or the Tender Inviting Authority or the employer as the case would be. The rejection of the technical bid of the petitioner is ostensibly in terms of Clause 22.3 supra. Therefore, the act of the petitioner, if ignored by this Court, would amount to permitting the tenderers to communicate with the Tender Scrutiny Committee or influence the Tender Scrutiny Committee by way of their communications.
13. The learned senior counsel for the petitioner has placed reliance upon a judgment rendered by the High Court of Madras in M/s R.N. TRANSPORT v. STATE OF TAMIL NADU AND OTHERS
- W.P.No.2313 of 2021 decided on 04-03-2021 contending that it is in identical circumstances the High Court of Madras has declined to accept the said rejection on the ground that the Tender Scrutiny Committee was influenced by the tenderer. The said 18 judgment is distinguishable on the facts obtaining before the High Court of Madras without much ado. The tenderer therein was called for inquiry. He had appeared for inquiry and had shared the information which he had received orally and the finding is that there is no intention at all for him to hurt anyone or complaints made were bereft of materials. That is not the issue in the case at hand. The petitioner has straight away communicated to the 2nd respondent, a member of the Tender Scrutiny Committee. Therefore, the said judgment is inapplicable to the facts of the case. Even otherwise, the said judgment has only a persuasive value and not binding on this Court.
14. Facts obtaining in the case at hand are entirely different as are narrated hereinabove and for any reason and by any means the act of the petitioner cannot be countenanced, as if such communication is ignored by accepting the plea of the petitioner, it would amount to putting a premium on the acts of the petitioner. It is an admitted fact that a letter of intent is already issued in favour of the 5th respondent. Therefore, turning down the petition will not 19 come in the way of the petitioner availing of any remedy that is available to him in law.
15. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ petitions lacking in merit are dismissed and the interim order granted on 18-04-2023 stands dissolved.
(ii) The dismissal of the petitions will not come in the way of the petitioner availing such remedy as is available to it in law.
(iii) The respondent/State is at liberty to take the tender to its logical conclusion by completing the process.
Pending application, if any, also stands disposed.
Sd/-
JUDGE bkp CT:SS