Kerala High Court
M/S Tbas Construction Supreme ... vs Union Of India on 15 February, 2018
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 28TH DAY OF JUNE 2018 / 7TH ASHADHA, 1940
WP(C).No. 18936 of 2018
PETITIONER:
M/S TBAS CONSTRUCTION SUPREME INFRASTRUCTURE INDIA LTD.
INDIAN ERECTERS ENGINEERING CONTRACTORS CONSORTIUM,
REPRESENTED BY T.U. AJIMON, TBAS CONSTRUCTION,
KIZHAKKEDATH BUILDING, NO.VI/617D, KUNJATTUKARA,
EDATHALA P.O., ALUVA - 683 561.
BY ADV.SMT.M.S.KIRAN
RESPONDENT(S):
1. UNION OF INDIA,
REPRESENTED BY SECRETARY,
MINISTRY OF SHIPPING,
TRANSPORT BHAVAN, NEW DELHI - 110 001.
2. THE CHAIRMAN,
COCHIN PORT TRUST,
WET ISLAND, COCHIN -682 009, KERALA.
3. THE CHIEF ENGINEER,
CHIEF ENGINEER'S OFFICE,
COCHIN PORT TRUST, WEST ISLAND,
COCHIN - 682 009, KERALA.
R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA
R2 & R3 BY SMT.LATHA ANAND, SC,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 20-06-2018, THE COURT ON 28-06-2018 DELIVERED THE
FOLLOWING:
sts
28/6/2018
WP(C).No. 18936 of 2018 (N)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1. A TRUE COPY OF THE NOTICE INVITING TENDER
NO.T9/T-1837/2018-C DATED 15.02.2018 WITH
INSTRUCTIONS TO TENDERS PUBLISHED BY THE 3RD
RESPONDENT
EXHIBIT P2. A TRUE COPY OF THE LETTER OF SUBMISSION
COVERING LETTER DATED 09.03.2018 SUBMITTED BY
THE PETITIONER
EXHIBIT P3. TRUE COPY OF THE COMMUNICATION NO.T9/T-1837/2018-C
DATED 21.03.2018 ISSUED BY THE 3RD RESPONDENT
EXHIBIT P4. TRUE COPY OF THE SUBMISSION OF SHORTFALL
DOCUMENTS OF TENDER SUBMITTED BY THE PETITIONER
EXHIBIT P5. A TRUE COPY OF THE EMAIL COMMUNICATION
DATED 04.06.2018
EXHIBIT P6. A TRUE COPY OF THE EMAIL COMMUNICATION DATED 04.06.2018
ISSUED BY THE 3RD RESPONDENT DISQUALIFYING THE
PETITIONER
EXHIBIT P7. A TRUE COPY OF THE CERTIFICATE ISSUED BY THE
FEDERAL BANK LTD. REGARDING THE ISSUANCE OF BG
IN FAVOUR OF THE JOINT VENTURE DATED 05.06.2018
EXHIBIT P8. TRUE COPY OF THE PROFORMA OF IRREVOCABLE BANK GUARANTEE
FOR EMD (ANNEXURE 12)
EXHIBIT P9. TRUE COPY OF THE WEB PAGE OF THE PORTAL WHICH SHOWS THE
OPENING OF THE PRICE BID OF THE PETITIONER.
EXHIBIT P10. TRUE COPY OF THE RELEVANT PAGE PROCEEDINGS OF THE TENDER
COMMITTEE MEETING (TECHNICAL BID) DATED 30/04/2018
RESPONDENT'S EXHIBITS AND ANNEXURES:
EXHIBIT R3(A) TRUE COPY OF THE BID DETAILS
EXHIBIT R3(B) TRUE COPY OF THE JV/CONSORTIUM AGREEMENT DATED 10/3/2018
EXHIBIT R3(C) TRUE COPY OF THE BANK GUARANTEE DATED 9/3/2018
2/-
-2-
WP(C).No. 18936 of 2018 (N)
EXHIBIT R3(D) COPY OF THE JV AGREEMENT DATED 12/3/2018
ANNEXURE R3(A) COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS OF THE
TENDER COMMITTEE MEETING DATED 30/4/2018
ANNEXURE R3(B) COPY OF THE AUDIT TRIAL DETAILS OF THE ACCESS AND USAGE
OF THE E-TENDERING WEBSITE
/TRUE COPY/
P.A.TO JUDGE
sts
28/6/2018
SHAJI P. CHALY, J.
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W.P.(C) No.18936 of 2018
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Dated this the 28th day of June, 2018
JUDGMENT
This writ petition is filed by the petitioner, a company incorporated under the Companies Act, seeking to quash Ext.P6 issued by the 3rd respondent disqualifying the petitioner, rejecting the technical bid and for other related and consequential reliefs.
2. Material facts for the disposal of the writ petition are as follows; third respondent invited tender for construction of International Cruise Terminal at Ernakulam Wharf from tenderers having eligibility criteria, evident from Ext.P1. Petitioner, who is the authorised Power of Attorney Holder of a joint venture viz., M/s. TBAS Construction Supreme Infrastructure India Ltd. Indian Erecters Engineering Contractors Consortium, submitted its bid on 9.3.2018, evident from Ext.P2 covering letter dated W.P.(C) No. 18936 of 2018 2 9.3.2018. Thereafter, 3rd respondent issued Ext.P3 communication dated 21.3.2018 intimating that, there are some shortfalls in the online submission of bid documents submitted by the petitioner after verification of the technical bids. Accordingly petitioner submitted the hard copies of all the documents within the stipulated period, evident from Ext.P4. Thereafter, there was no communication from the 3rd respondent seeking any further clarification or intimating any shortfall for the bid submitted by the petitioner. No defects or shortfalls for the bid submitted by the petitioner was pointed out to be cured. Thereafter, on 4.6.2018 petitioner was served with Ext.P5 e-mail communication informing that, the price bid is being opened by the employer on 4.6.2018. Thereafter, on 4.6.2018, it was informed as per Ext.P6 communication that, the bid submitted by the petitioner for construction of international cruise terminal at Ernakukam Wharf has been rejected and petitioner is being disqualified for the reason W.P.(C) No. 18936 of 2018 3 that, petitioner has not met the requirement of submission of EMD.
3. It is submitted as per clause 16 of Ext.P1 Instructions to Tenderers, each tender should be accompanied by Earnest Money amounting to Rs.22.34 lakhs. EMD shall be furnished either through D/D or banker's cheque drawn in favour of Financial Adviser & Chief Accounts Officer, Cochin Port Trust from any nationalised bank/scheduled bank in India or through an irrevocable bank guarantee valid for a period of 148 days from the date of opening the tender, enforceable and encashable at Cochin drawn from any nationalised bank/scheduled bank operating in India as per the proforma, Annexure 12. In case bank guarantee is furnished for EMD, bank guarantee shall be verified independently by the Port with the bank before finalization of technical offers; in the event of lack of confirmation of issue of the bank guarantee by the bank, the bid shall stand W.P.(C) No. 18936 of 2018 4 disqualified. Any bid not accompanied by an acceptable bid security shall be treated as non-responsive and shall be rejected by the employer.
4. According to the petitioner, petitioner submitted the bank guarantee as per Annexure 12 in the given format complying all the conditions. The bank had made information to the petitioner that, there was an enquiry from the 3rd respondent's officer regarding issuance of bank guarantee to the petitioner on 14.3.2018 and the bank had confirmed the issuance of bank guarantee on 17.3.2018, evident from Ext.P7 issued by the Federal Bank Limited and therefore, according to the petitioner, the disqualification of the petitioner made by the 3rd respondent under the said ground is illegal, unjustifiable and violative of tender conditions.
5. Likewise as per clause 19 of the Instructions to Tenderers, the bid shall be submitted in two parts; Part I is technical bid and Part II is price bid through e-tender mode. W.P.(C) No. 18936 of 2018 5 As per clause 24 of the instructions, in case of tenders invited under two cover system, the technical bid of the tenderers received will be opened first. It is further stated, technical bid shall be opened in the office of the Chief Engineer, Cochin Port Trust after 15.30 hrs on the last date of receiving tenders. Submission of EMD and cost of document is verified initially. In case of EMD and cost of the bid is not deposited or is not in order, the bid will not be opened and hard copy submitted will be returned. If all the bidders have submitted unconditional bids together with requisite bid security, then all the bidders will be so informed then and there. If any bid contains any deviation from the bid documents and/or if the same does not contain bid security in the manner prescribed in the bid documents, then that bid will be rejected and the bidder will be informed accordingly. The price bid submitted in e-mode will not be opened.
6. It is further submitted, as per the notification, the W.P.(C) No. 18936 of 2018 6 last date and time of submission of bid was 12.3.2018 upto 15.00 hrs and the date and time of opening the bid was 12.3.2018 after 15.30 hrs. The technical bids were opened and verified by the employer and petitioner was informed to cure the shortfalls vide Ext.P3 communication. Nowhere in Ext.P3 communication, it is submitted, the EMD submitted by the petitioner is not in order or there is no communication to the effect that, the security furnished by the petitioner is not in order and hence it is rejected. As per clause 20.2, the price bid contains only bills of quantities and not the documents. As per clause 25 of the instructions, the price bid of those tenderers found responsive in the evaluation of technical bid will be opened later, shortlisted candidates will be communicated about the date and time of opening of the price bid. The bidders name, bid prices, total amount of each bid, any discounts, bid modifications and withdrawals and such other details as the employer may consider appropriate will be announced W.P.(C) No. 18936 of 2018 7 by the employer at the time of opening. If the technical bid is found to be responsive and cured for shortfalls, then only the price bid of the same has to be opened. According to the petitioner, the bid is responsive and the shortfalls were cured within the stipulated time period. As per clause 27 also, even prior to the evaluation of bids, Cochin Port Trust will determine whether each bid is accompanied by the required bid security. Even at the stage of opening the technical bid, there is no communication to the petitioner regarding any rejection of its bid due to unacceptable bid security. The action of the respondent in disqualifying the petitioner at the time of opening the price bid assigning the reason that, it had not made the requirement of submission of EMD, is illegal and against the provisions of Ext.P1 tender invitation.
7. It is also submitted that, in case petitioner's bid security was not in order, the employer must have intimated about the rejection at the time of opening the technical bid. W.P.(C) No. 18936 of 2018 8 However, now after a lapse of three months from the date of opening of the technical bid and verification of bid security & bid documents, and after opening of price bid, it is illegal on the part of the 3rd respondent to declare the petitioner as disqualified. These are the background facts projected by the petitioner to secure the relief sought for.
8. Third respondent has filed a detailed statement refuting the allegations and claims and demands raised by the petitioner. Among other contentions it is stated that, electronic tenders were invited by Cochin Port Trust in single stage two cover bidding procedure as per Ext.P1 notification dated 15.2.2018. Ext.P1 produced by the petitioner is not the full tender documents. Petitioner TBAS Constructions, Supreme Infrastructure India Ltd and Indian Erecters Engineering Contractors Consortium submitted the bid through e-portal for the JV/Consortium. In the bid details displayed in the e-portal, the name of the bidder is indicated as TBAS Constructions, the copy of which is W.P.(C) No. 18936 of 2018 9 produced as Ext.R3(a). However, as per clause 6 of Ext.P1, the bidder can be a single entity or a JV/Consortium. Further in case of a JV/Consortium, the conditions for bid submission by JV/Consortium as detailed in clause 38 of Instructions to Tenderers also has to be followed.
9. Further the details of information required in the bid is provided under clause 20 of Ext.P1. In clause 20.1 the technical bid is stated to be consisting of EMD, cost of tender documents, power of attorney, organizational details, experience details, JV/Consortium agreement etc. Petitioner has cautiously avoided producing the joint venture/ consortium agreement that they have submitted with the tender originally, evident from Ext.R3(b). As per Ext.R3(b) agreement, JV/Consortium consisted of; 1) TBAS Construction (35%) (2) Supreme Infrastructure India Ltd. (35%) (3) Indian Erectors Engineering Contractors (30%). As per the terms and conditions of the tender, the most experienced partner will be nominated as leading partner. W.P.(C) No. 18936 of 2018 10 In the present case, though the experienced partner was Supreme Infrastructure India Ltd., the TBAS Construction was nominated as the lead partner. Petitioner had also submitted the EMD amount stipulated in clause 16 of Ext.P1 in the name of TBAS Construction. As per clause 38.2 (g) of Ext.P1, for bid submission of JV/Consortium, bid security can be furnished by any partner but it shall be in the name of joint venture. Herein the bank guarantee submitted by the petitioner while submitting the bid was in the name of TBAS Construction and not in the name of JV, evident from Ext.R3(c). It is further submitted that, bid was accompanied with instruments towards cost of tender documents, EMD and integrity pact. The finer details of the instruments and other documents submitted by the petitioner was to be verified after bid opening and during technical evaluation. When the technical bid was opened, many technical deficiencies were found in the tender submitted by the petitioner. As per the tender conditions viz., clause 26 of W.P.(C) No. 18936 of 2018 11 instructions to tenderers, to assist in the examination of the bids, the employer may, at his discretion, ask any bidder for clarification of the bid. Non-conformity with the tender conditions with regard to the submission of EMD by JV/Consortium is not a clarification. It is the sole responsibility of the bidder to properly submit the bids complying with the tender conditions and instructions in all respects; the tender inviting authority is in no way obligated to make it proper. Even so, in order to give one more opportunity to the petitioner, the deficiencies were notified to the petitioner and sought clarification as per clauses 26, 30 and 38.2(s) of Ext.P1. From Ext.P3 produced by the petitioner, it is worthy to note that, same are not communications or documents sent by the respondent to the petitioner as stated in the body of the writ petition. It is submitted, to Ext.P3 communication dated 21.3.2018, petitioner submitted Ext.P4 covering letter along with attached documents.
W.P.(C) No. 18936 of 2018 12
10. In this context, two aspects are worthy to be pointed out;(1) the petitioner has not produced all the documents they submitted along with Ext.P4 covering letter. (2) In Sl.No.11 of Ext.P4 covering letter, petitioner has styled the change of JV as on the basis of instructions and discussions with the Cochin Port Trust, which is not true. To Ext.P4 covering letter, another joint venture agreement was also annexed, which the petitioner again conveniently failed to produce along with Ext.P4. The JV agreement dated 12.3.2018 submitted by the petitioner along with Ext.P4 covering letter is produced as Ext.R3(d). Although Ext.R3(d) appears to have been executed on 12.3.2018, the stamp paper itself is dated 24.3.2018. It is very important to note that, the very constitution of the JV/Consortium itself has changed in Ext.R3(d). There are only two members in Ext.R3(d) whereas at the time of submission of tender on 12.3.2018, the joint venture/consortium consisted of three parties. In other words, it is submitted that, W.P.(C) No. 18936 of 2018 13 Ext.R3(d) agreement cannot be submitted after 12.3.2018 in view of the fact that, there is a change in the bidder himself. There cannot be a new bid or bidder after 12.3.2018, the last date for submission of bid as per clauses 22 and 23 of Ext.P1. It is also the case of the respondent that, the petitioner has not cured the defects pointed out in Ext.P3, which will make the petitioner ineligible to be considered, instead vide Ext.P4 covering letter, petitioner submitted additional details changing the whole identity of the JV/Consortium and its partners and the structure.
11. This is more so, when as per clause 30, no alteration of tender documents is permissible other than making clarifications as required by the employer. When clarifications were sought vide Ext.P3, petitioner changed the constitution of the JV and brought down the partners from 3 to 2. Therefore, the identity of the entity itself is changed by the petitioner. It is further submitted that, these deficiencies were noted after thorough evaluation and W.P.(C) No. 18936 of 2018 14 observations in respect of the bid submitted by the petitioner, which are as follows;
b