Kerala High Court
P.T.Sreenivasan vs State Of Kerala Represented By Its on 8 September, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY,THE 08TH DAY OF SEPTEMBER 2020/17TH BHADRA,1942
WP(C).No.13242 OF 2020(E)
PETITIONER:
P.T.SREENIVASAN,PWD CONTRACTOR,
THAYYIL HOUSE, CHELAVOOR P.O.,
KOZHIKODE-673 571.
BY ADVS.
SRI.JOMY GEORGE
SRI.R.PADMARAJ
SRI.DEEPAK MOHAN
SMT. CHITRA N. DAS
SHRI.RISHAB S.
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS
CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 SUPERINTENDING ENGINEER, PWD ROADS,
NORTH CIRCLE, KOZHIKODE-673 001.
3 CHIEF ENGINEER, PWD ROADS,
PUBLIC OFFICE BUILDINGS,
THIRUVANANTHAPURAM-695 033.
4 SECRETARY, PUBLIC WORKS DEPARTMENT,
PUBLIC OFFICE BUILDINGS,
THIRUVANANTHAPURAM-695 033.
5 K.T.MANOJ,KEECHERI HOUSE,KUPPADI P.O.,
SULTHAN BATHERY, WAYANAD-673 592.
R3 BY GOVERNMENT PLEADER SMT.VINITHA B.
R5 BY ADV. SRI.SAJEEV KUMAR K.GOPAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 30-07-2020, THE COURT ON 08-09-2020 DELIVERED
THE FOLLOWING:
WPC No.13242/2020
:2:
N. NAGARESH, J.
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W.P.(C) No.13242 of 2020
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Dated this the 8th day of September, 2020
JUDGMENT
~~~~~~~~~ The petitioner, who is a PWD Contractor, seeks to quash Exts.P7 and P10, direct respondents 1 to 4 to cancel the allotment of Ext.P1 work to the fifth respondent and direct respondents 1 to 4 to accept the technical bid and financial bid submitted by the petitioner and allot the work to him.
2. The respondents published Ext.P1 Notice Inviting Tender (NIT) on 12.03.2020 for the work of providing "Flood 2018-19-Providing BM&BC to Calicut - Vythiri - Gudallur Road from 78/150 to 97/150 in Wayanad District". The estimated cost of the work was ₹12,45,99,843/-. The petitioner, the fifth respondent and another, bid for the work. WPC No.13242/2020 :3: The third respondent rejected the pre-qualification bid of the petitioner on the ground that the petitioner has no requisite experience for doing the work.
3. The petitioner states that, the second respondent had reported that the fifth respondent is not qualified for doing the work. However, the pre-qualification bid of the fifth respondent was accepted. The petitioner submitted Ext.P8 representation to the Minister of Public Works Department. But, no decision was taken thereon. By Ext.P10, the third respondent intimated the second respondent that the decision to disqualify the petitioner in the pre-qualification remains.
4. The petitioner states that there is irregularity in the evaluation of the bids. The petitioner was fully qualified to undertake the work and the fifth respondent had no requisite experience. The respondents unduly favoured the fifth respondent. Therefore, the proposed work is liable to be entrusted to the petitioner, contends the petitioner.
5. The fifth respondent opposed the writ petition. WPC No.13242/2020 :4: The fifth respondent argued that going by the NIT, the experience required for award of tender, should be one similar work costing more than 40% of the estimated cost. The fifth respondent had completed work of ₹24.73 Crores with SIDCO and ₹2.97 Crores with Kerala State Construction Corporation Limited. The petitioner had only done a work of ₹5.43 Crores. The pre-qualification assessment was made in accordance with the documents produced along with the tender forms. The petitioner quoted an amount of ₹13,39,74,906/- whereas, the fifth respondent quoted ₹13,33,09,371/-. Therefore, the fifth respondent is the lowest bidder. Assuming that pre-qualification of the petitioner is to be accepted, even then the work could not have been awarded to the petitioner, he being not the lowest bidder. The writ petition is therefore devoid of merit and it is liable to be rejected, contended the fifth respondent.
6. The third respondent - Chief Engineer stated that work was awarded on the basis of certain laid down criteria. Marks were awarded to the bidders under various heads WPC No.13242/2020 :5: such as structure, financial status, resources and experience. The minimum marks required for pre- qualification was 325 out of 500. The petitioner scored only 303 marks. The contentions of the petitioner as regards better qualification of the petitioner and lack of qualification of the fifth respondent, are unfounded. The petitioner was disqualified and the fifth respondent was qualified based on the conclusions of the Evaluation Committee.
7. Advocate Jomy George, learned counsel for the petitioner argued that the main component of the work is Bituminous Macadam and Bituminous Concrete (BM&BC) and it constitutes more than 66% of the work. Clause 1.3.2 of Ext.P1 NIT required that the bidder shall have successfully completed at least one similar work costing more than 40% of the estimated cost of work described in the NIT during the last five years. Ext.P3 pre-qualification information is also to the same effect. The term 'similar nature of work' is defined in Clause 2.3 which states that works of any magnitude with a minimum as stated above which is of the same nature and WPC No.13242/2020 :6: type of the work tendered as per the contract data. The fifth respondent does not satisfy the second condition.
8. Relying on Clause 5.4 of the bid document, the learned counsel for the petitioner argued that a detailed evaluation of the technical bid has to be done by the tender inviting authority and if a bid is not substantially responsive, it has to be rejected. The second respondent-Superintending Engineer who is the tender inviting authority, after an evaluation of technical bid, recorded that the fifth respondent is not qualified/competent for doing the work since he has no experience in doing BM&BC Work. In spite of the observations of the second respondent, the bid of the fifth respondent was accepted illegally. The learned counsel for the petitioner pointed out that pursuant to an application under the RTI Act, it has been stated in Ext.P11 that BM&BC is the main component of the work and the fifth respondent does not have sufficient experience in BM&BC work as per the experience certificate submitted.
9. The learned counsel for the petitioner also argued WPC No.13242/2020 :7: that the respondents have justified their action based on Ext.P21 Government Order, which is not applicable to the present case. According to the counsel for the petitioner, Ext.P21 GO has not been published in official gazette. Ext.P21 is only a routine government order. In the absence of publication of the notification in official gazette, it can be relied on only by making a proper condition or stipulation in the NIT. The learned counsel relied on the judgment of this Court in Asokan v. State of Kerala [2018 (1) KLT 760] to urge the point. The learned counsel for the petitioner pointed out that Ext.P21 GO is not incorporated, mentioned or referred to anywhere in the PWD manual. Therefore, the respondents should not have relied on Ext.P21 in order to qualify the fifth respondent.
10. The fifth respondent does not have sufficient machinery to carry out the work, contended the learned counsel for the petitioner. The bank certificate produced by the fifth respondent did not satisfy the requirements and the fifth respondent ought to have been disqualified for that WPC No.13242/2020 :8: reason also. Clause 2.1 of Ext.P17 put a condition that the bidder has to produce profit and loss account and balance sheets for the last five years. The fifth respondent produced balance sheets and P&L account for three years only. For this reason also, the fifth respondent is liable to be declared as not qualified.
11. As regards the illegal rejection of the bid of the petitioner, the counsel for the petitioner pointed out that the estimated cost of the work is ₹12,45,99,843/-. The 40% of the estimate would come to ₹4,98,39,939/-. Ext.P5 certificate would show that the petitioner has done work for ₹5.43 Crores. Therefore, the petitioner satisfies the experience qualification. The counsel submitted that average annual turnover required for the work, is not mentioned anywhere in the bid document. Therefore, the petitioner's bid could not have been rejected on the ground of insufficient average annual turnover. The rejection of the petitioner's bid goes against the provisions of the PWD Manual and the NIT. Relying on the judgment of the Apex Court in Dutta WPC No.13242/2020 :9: Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. & others [(1997) 1 SCC 53], the learned counsel for the petitioner argued that whatever be the procedure the Government proposes to follow in accepting the tender, it must be clearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptance of tender, should be transparent, fair and open. If a criteria for awarding marks is to be adopted, it should be notified at the beginning and should be known to all the interested bidders at least before submission of bids regarding the methodology to be adopted in awarding the marks to evaluate the technical bid. It is an essential requirement of the rule of transparency and fairness, contended the learned counsel relying on the judgment in Educomp Solutions Ltd. and others v. State of Assam [2006 (3) GLR 117].
12. Further, relying on the judgment of this Court in Ramesan P. & another v. T. Asokan & others [2018 (4) KLT 730], the learned counsel asserted that the clause in WPC No.13242/2020 : 10 : Ext.P1 notice that 'all other existing conditions relates to be being in force in the Kerala PWD Manual will be applicable in this tender also unless expressly defined in the bidding document' only means and can only be taken to be a reference to those government orders which are published consequent to a statutory requirement mandating their publication so as to give them their efficacy.
13. The learned counsel for the fifth respondent Advocate Sajeev Kumar K. Gopal argued that the fifth respondent has successfully undertaken and completed works to the tune of ₹24,73,60,375/-, as evident from Ext.R5(a) certificate of experience. The petitioner had completed work of ₹5.43 Crores only. The claim of the petitioner that he has executed works costing more than ₹600 Crores, remained unestablished by any documents. The counsel for the fifth respondent pointed out that Clause 2.2 of Ext.P3 required only that intending bidder must have in his name as a prime contractor, experience of having successfully completed at least one similar work costing WPC No.13242/2020 : 11 : more than 40% of the estimated cost, for government/semi government clients during the last five years. The fifth respondent has undertaken a large number of similar works. Nowhere in the NIT it is specified that those who are having experience in BM&BC work alone are eligible.
14. Heard learned counsel for the petitioner, counsel for the fifth respondent and learned Government Pleader representing respondents 1 to 4.
15. The prime argument of the petitioner based on Clauses 1.3.2 and 2.2 of Ext.P1 NIT, is that a bidder should have successfully completed at least one similar work costing more than 40% of the estimated cost of the work described in the NIT during the last five years. Similar works mean works of any magnitude with a minimum as stated above which is of the same nature and type of the work tendered as per the contract data. It is the contention of the petitioner that the predominant nature of the work in question is BM&BC. The fifth respondent does not have sufficient experience in this area. The petitioner has produced Ext.P2 WPC No.13242/2020 : 12 : contract data, wherein description of the nature of the work is given. It would show that the type of work described is a combination of multiple types of work. Essentially, it is a contract for road work. Road work would include BM&BC work also. However, in Ext.P1 NIT, there is no indication that only those who are having experience in BM&BC work would be eligible. Ext.P21 GO would show that the Government have clarified that the BM&BC experience is not required if the builder qualifies other essential requirements as per the NIT.
16. Respondents 1 to 4 would state that in the judgment in W.P.(C) No.19264/2014, this Court took a view that the Government have to advert various factors before taking decision to stipulate pre-qualifications based on experience. It shall not give undue advantage to those who have already gained experience in execution of BM&BC works. This Court directed the Government to come out with broad guidelines for stipulating pre-qualification. Based on the directions of this Court, the Government issued Ext.P21 WPC No.13242/2020 : 13 : GO dated 25.08.2015 and the pre-qualification works in PWD are assessed in the light of the said GO also.
17. The learned counsel for the petitioner would contend that Ext.P21 GO is not published in Gazette and it is only a routine government order. It is Ext.P19 Government Order which is published in the Gazette, and hence Ext.P19 should be followed. It has to be noted that this Court has already held that the Government shall not give undue advantage to those who have already gained experience in execution of BM&BC works. It is pursuant to the directions of this Court that Ext.P21 GO has been issued. In Ext.P1 NIT, it is made clear that all other existing conditions related to bidding in force in Kerala Public Works Department will be applicable in respect of Ext.P1 work also.
18. In the circumstances, the action of respondents 1 to 4 in not disqualifying the fifth respondent on the ground of lack of experience in BM&BC works, cannot be found fault with. As regards the observations of the tender inviting authority on the lack of eligibility and qualification of the fifth WPC No.13242/2020 : 14 : respondent, it is to be noted that the pre-qualification of bidders has been evaluated by a Committee chaired by the Chief Engineer. Evaluation was done on the basis of the pre- qualification criteria prescribed as per Ext.R3(b), by the Chief Engineer (NH and Administration). Since evaluation is done by a competent Committee based on laid down criteria, this Court finds no reason to interfere with the selection made by the Evaluation Committee solely on the basis of observations made by the Superintendent.
19. It is to be noted that Ext.R3(b) provided for allocation of marks under different heads, to the bidders. Ext.R3(b) are general norms of universal application, prescribed by the Chief Engineer, NH and Administration. Based on those norms, when bids of all the three bidders were evaluated, the petitioner could obtain total marks of 303 only whereas the minimum marks required for clearance was
325.
20. The petitioner has no case that there is discrepancy in awarding marks. The contention of the WPC No.13242/2020 : 15 : counsel for the petitioner in this regard is that if respondents 1 to 4 were to award marks for selecting the successful bidder, they should have declared so in advance. This argument cannot be accepted as such because the factors for awarding of marks, such as financial status, resources, experience etc. form conditions in the NIT. The non- disclosure of criteria and quantum of marks to be awarded under each head, is of no consequences.
21. As regards production of Balance Sheet and Profit and Loss Account, the fifth respondent produced Exts.R5(b), R5(c), R5(d), R5(f) and R5(g) Balance Sheets and certificates issued by the Chartered Accountant. The fifth respondent has also produced bank certificate issued by the South Indian Bank agreeing to give credit facilities, as stated by respondents 1 to 4. As the respondents 1 to 4 have found these documents sufficient to pre-qualify the fifth respondent, this Court finds no reason to interfere with the award of tender on that ground.
22. The petitioner has a further case that the fifth WPC No.13242/2020 : 16 : respondent does not possess sufficient machinery to execute the work and the Superintending Engineer as per Ext.P4 proceedings has indicated this as a shortcoming. The fifth respondent has produced Ext.R3(h) which is a lease agreement executed by him taking on lease all requisite machinery. There is no stipulation in Ext.P1 NIT that the machinery should be owned by the bidder himself. As the fifth respondent has made arrangements for the availability of requisite machinery, this Court finds no reason to interfere with the award of bid on this ground also.
23. Thus, the fifth respondent cannot be said to be disqualified for bidding in pursuant to Ext.P1, on any of the grounds urged by the petitioner. Consequently, this Court finds that it is unnecessary to go into the question of disqualification of the petitioner in respect of the bid in question in these proceedings, because even if this Court finds that the petitioner is qualified at the pre-qualification stage, even then, the bid amount of the fifth respondent is substantially lower than the bid amount offered by the WPC No.13242/2020 : 17 : petitioner and hence the work could not have been awarded to the petitioner. In the circumstances, this Court finds no reason to interfere with the award of work to the fifth respondent, by respondents 1 to 4.
The writ petition therefore fails and it is consequently dismissed.
Sd/-
N. NAGARESH, JUDGE aks/04/09/2020 WPC No.13242/2020 : 18 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF NOTICE INVITING TENDER (NIT) DATED 12.3.2020 INCLUDING THE RELEVANT PAGES OF THE INSTRUCTION TO BIDDERS ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE CONTRACT DATA EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF THE PRE-QUALIFICATION INFORMATION EXHIBIT P4 TRUE COPY OF THE LETTER DATED 27.5.2020 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 20.12.2017 OF THE PETITIONER EXHIBIT P6 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 8.3.2019 PRODUCED BY THE 5TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE MINUTES OF THE PROCEEDINGS OF THE CHIEF ENGINEERS COMMITTEE HELD ON 11.6.2020 EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 13.6.2020 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF PUBLIC WORKS DEPARTMENT EXHIBIT P9 TRUE COPY OF THE LETTER DATED 15.6.2020 SEND BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P10 TRUE COPY OF THE LETTER DATED 22.6.2020 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT WPC No.13242/2020 : 19 : EXHIBIT P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 22.6.2020 UNDER THE RIGHT TO INFORMATION ACT EXHIBIT P12 TRUE COPY OF THE REPLY DATED 26.6.2020 TO EXHIBIT P-11 LETTER EXHIBIT P13 TRUE COPY OF THE CERTIFICATE DATED 21.4.2010 SUBMITTED BY THE PETITIONER ALONG WITH THE TENDER DOCUMENTS EXHIBIT P14 TRUE COPY OF THE CERTIFICATE DATED 23.3.2020 SUBMITTED BY THE 5TH RESPONDENT EXHIBIT P15 TRUE COPY OF THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNT OF THE PETITIONER FROM THE YEAR ENDING MARCH 2013 TO MARCH 2019 EXHIBIT P16 TRUE COPY OF THE CERTIFICATE REGARDING THE ANNUAL TURNOVER OF THE PETITIONER EXHIBIT P17 TRUE COPY OF THE PAGE 100 OF THE BID DOCUMENT EXHIBIT P18 TRUE COPY OF THE CERTIFICATE DATED 09.12.2019 OF THE CHARTERED ACCOUNTANT PRODUCED BY THE 5H RESPONDENT ALONG WITH THE TENDER DOCUMENTS EXHIBIT P18(a) TRUE COPY OF THE CERTIFICATE DATED 04.06.2019 OF THE CHARTERED ACCOUNTANT PRODUCED BY THE 5TH RESPONDENT ALONG WITH THE TENDER DOCUMENTS EXHIBIT P19 TRUE COPY OF THE GOVERNMENT ORDER NO.3-
2017-PWD DATED 09.08.2017 EXHIBIT P20 TRUE COPY OF THE FIRST PAGE OF THE BID DOCUMENT EXHIBIT P21 TRUE COPY OF THE GOVERNMENT ORDER DATED 25.08.2015 WPC No.13242/2020 : 20 : EXHIBIT P22 TRUE COPY OF THE PAGE 86 OF THE BID DOCUMENT EXHIBIT P23 TRUE COPY OF THE RELEVANT PAGE 16 OF THE BID DOCUMENT EXHIBIT P24 TRUE COPY OF THE APPLICATION DATED 22.06.2020 SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT EXHIBIT P25 TRUE COPY OF THE REPLY DATED 03.07.2020 GIVEN BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P26 TRUE COPY OF THE LIST OF THE WORK OF SIMILAR NATURE EXECUTED BY THE PETITIONER DATED 21.04.2020.
EXHIBIT P27 TRUE COPY OF THE ASSESSED AVAILABLE BID CAPACITY OF THE PETITIONER DATED 21.04.2020.
EXHIBIT P28 TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE 2ND RESPONDENT ALONG WITH THE CERTIFICATE OF EXECUTIVE ENGINEER DATED 24.01.2018.
RESPONDENTS' EXHIBITS EXHIBIT R5(a) TRUE COPY OF THE CERTIFICATE OF EXPERIENCE PRODUCED BY THE PETITIONER ALONG WITH THE TENDER FORM.
EXHIBIT R5(b) TRUE COPY OF THE BALANCE SHEET AS AT 31.03.2016.
EXHIBIT R5(c) TRUE COPY OF THE BALANCE SHEET AS AT 31.03.2017.
WPC No.13242/2020: 21 : EXHIBIT R5(d) TRUE COPY OF THE BALANCE SHEET AS AT 31.03.2018.
EXHIBIT R5(e) TRUE COPY OF THE CERTIFICATE ISSUED BY THE SOUTH INDIAN BANK, SULTHANBATHERY BRANCH DATED 23.03.2020.
EXHIBIT R5(f) TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHARTERED ACCOUNTANT GEORGE MATHAI, NOORANAD AND COMPANY FOR THE YEAR 2013- 2018 EXHIBIT R5(g) TRUE COPY OF FORM 'A' FINANCIAL INFORMATION ISSUED BY THE CHARTERED ACCOUNTANT EXHIBIT R5(h) TRUE COPY OF THE LEASE AGREEMENT EXECUTED BETWEEN THE 5TH RESPONDENT AND MR.B.A.SHAREEF EXHIBIT R5(i) TRUE COPY OF THE CERTIFICATE ISSUED BY THE FEDERAL BANK, PUTHIYARA BRANCH DATED 09.01.2017 EXHIBIT R5(j) TRUE COPY OF THE COMMUNICATION VIDE NO.DC02/RD/3658/2018 DATED 14.07.2020 ISSUED BY THE SUPERINTENDING ENGINEER TO THE PETITIONER EXHIBIT R5(k) TRUE COPY OF THE COMMUNICATION DATED 16.07.2020 ISSUED BY THE PETITIONER TO THE SUPERINTENDING ENGINEER EXHIBIT R5(l) TRUE COPY OF THE ORDER DATED 25.08.2015 ISSUED BY THE GOVERNMENT VIDE G.O.(RT) NO.1251/PWD