The Chingleput High Court dismissed writ petitions filed by a petitioner who was a second and third lowest tenderer challenging the prequalification and selection of a respondent in a public construction tender. The Court held that the tender committee's evaluation was lawful and prima facie the respondent fulfilled eligibility criteria.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938
WP(C).No. 7836 of 2016 (D)
PETITIONER(S):
T.P.PRAKASHAN, AGED 52, S/O.T.P.BALAN, THEKKINIPURAYIL HOUSE, P.O.KALLIASSERY, KANNUR DISTRICT - 670 562.
BY ADVS.SRI.V.PHILIP MATHEW SRI.RADHAKRISHNAN E.
RESPONDENT(S):
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HARBOUR ENGINEERING, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT, GOVERNMENT OF KERALA, KAMALESWARAM, THIRUVANANTHAPURAM - 695 009.
3. SUPERINTENDING ENGINEER, HARBOUR ENGINEERING DEPARTMENT, GOVERNMENT OF KERALA, NORTH CIRCLE, KOZHIKODE - 673 006.
4. KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., MILMA BHAVAN, PATTOM PALACE P.O, THIRUVANANTHAPURAM-695 004, REPRESENTED BY ITS MANAGING DIRECTOR.
5. M/S. A.K.R.CONSTRUCTIONS, 6/1200 T, RBG ARCADE, OPPOSITE GANDHI PARK, CHEROOTY ROAD, CALICUT-673 032, REPRESENTED BY A.K. RATHEESH.
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6. K.J. JOY, KARIYAN HOUSE, PEROL P.O., NEELESWARAM, KASARGOD DISTRICT - 671 314.
7. MOHAMMED HAJI,
8. PREQUALIFICATION COMMITTEE FOR HARBOUR ENGINEERING DEPARTMENT, REPRESENTED BY CHIEF ENGINEER, PWD (ROADS, BRIDGES AND ADMINISTRATION), THIRUVANANTHAPURAM-695 001.
9. CHIEF ENGINEER (ROADS, BRIDGES AND ADMINISTRATION), PWD, THIRUVANANTHAPURAM-695 001.
10. CHIEF ENGINEER (ROADS, BRIDGES AND ADMINISTRATION), PWD, THIRUVANANTHAPURAM - 695 001.
R1-R3 BY GOVERNMENT PLEADER SRI.S.KANNAN R4 BY ADVS. SRI.K.ANAND (SR.)
SMT.LATHA ANAND SRI.JOSEPH SEBASTIAN (PARACKAL) R5 BY ADVS. SRI.K.JAJU BABU (SR.) SRI.T.K.VIPINDAS SRI.K.M.MUHAMMED HUSSAIN R7 BY ADVS. SRI.K.L.VARGHESE (SR.) SMT.SANTHA VARGHESE SRI.RAHUL VARGHESE SRI.RANJITH VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2016 ALONG WITH WPC. 8217/2016, THE COURT ON 25-11-2016, DELIVERED THE FOLLOWING:
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WP(C).No. 7836 of 2016 (D)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS
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WP(C).No. 7836 of 2016 (D)
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WP(C).No. 7836 of 2016 (D)
ANNEXURE B: TRUE COPY OF THE PHOTOGRAPH OF CONSTRUCTION MADE BY THE PETITIONER.
| ANNEXURE C: TRUE COPY | OF THE | DECISION TAKEN PURSUANT TO THE |
|---|---|---|
| HONOURABLE | COURT | ORDER ON 30.3.2016 IN WPC.NOS.7836, |
| 8217/2016. | ||
| ANNEXURE D: TRUE COPY | OF THE | STATEMENT OF HEARING WITH THE |
| PETITIONER | IN WPC | .NO.7836/2016. |
//TRUE COPY//
P.S.TO JUDGE
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SHAJI P. CHALY, J.
W.P.(C). Nos. 7836 of 2016 &
8217 of 2016
Dated this the 25th day of November, 2016
JUDGMENT
The captioned writ petitions are materially connected and are relating to a tender notification invited by the third respondent in W.P.(C). No. 7836/2016 dated 29.09.2015 against construction of Warehouse at Azhikkal Port, Kannur. Petitioners are second and third lowest tenderers and participants in the tender notification respectively and fifth respondent in W.P.(C). No. 7836/2016 was selected as the successful bidder. Facts and documents available from W.P.(C).No. 7836/2016 is narrated for the disposal of the writ petitions. Material facts are these:-
Third respondent invited tenders for the work NABARD - Construction of Warehouse at Azhikkal Port, Kannur through Exts. P1 and P2. Petitioner and respondents 5 to 7 participated in the tender. Seventh
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respondent did not qualify in the technical bid. Seventh respondent is the petitioner in W.P.(C). No. 8217/2016. Petitioner quoted 3.9% above the estimate rate for the work. Fifth respondent quoted 2.8% above the estimate rate. Sixth respondent quoted 4.7% above the estimate rate.
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technical bids were scrutinized and got confirmed the genuineness of the experience certificates produced by the bidders with the authority, who have issued the certificates. After the same, all the documents of the technical bids were submitted before the Chief Engineer, Harbour Engineering Department, for evaluation and approval of the Prequalification Committee. The Pre-qualification Committee qualified three bidders namely, i) K.J.Joy, PWD Contractor, ii) A.K. Ratheesh, A.K.R. Constructions, iii) T.P. Prakashan, petitioner, and the fourth bidder was disqualified in prequalification, namely, the petitioner in the other writ petition.
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bid of the qualified bidders were opened on 27.02.2016. The lowest bid was submitted by the fifth respondent at 2.8% above estimate rate. After negotiation, fifth respondent reduced the quoted rate to the estimate rate. Therefore the work was awarded to the lowest bidder, namely, the fifth respondent and agreement is executed on 02.03.2016 and started the execution of contract work.
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respect to the assigning of the ranks. It is submitted, experience certificate produced by the fifth respondent was issued by the General Manager, Projects and Planning, MILMA for the completed work - “First Phase civil works for the construction of Godown block, compound wall and site development works for setting up of new dairy plant at Sreekandapuram, Kannur” for an amount of Rs. 312.92 lakhs. The construction of a godown is a building similar to that of a warehouse building. It is also stated that the selection of the pre-qualified contractors are made by the Pre-qualification Committee, absolutely after scrutinising all relevant records and there is no discrimination, arbitrariness or illegality in the procedure adopted by the Pre-qualification evaluation committee, and the committee makes a very pragmatic analysis based on the available records strictly keeping the best interest of the State. It is also stated, that the General Manager, is above the rank of the Executive Engineer and is competent to issue the certificate issued to the fifth respondent. Therefore, it is contended that petitioner has not made out a case
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warranting interference of this Court, under the writ jurisdiction.
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completed for an amount of 736.72 Lakhs. Ext. R5(f) is yet another document produced to show that petitioner has completed a work of Rs. 2.45 Crores of a showroom cum workshop of Bharat Benz for M/s. Autobahn Trucking Corporation, Ramanattukara, Kozhikode, spreading around 30,000 square feet in three floors. Therefore, it is the contention of the fifth respondent that there is no embargo in Ext.P1 tender notification that the works undertaken in the private sector could not be considered. That apart, it is contended that fifth respondent has been pre-qualified by various Government Departments for works more than Rs. 4 Crores, evident from Exts. R5(g), R5(i) and R5(j). Other documents are produced namely, Exts. R5(l) and R5(m) to contend that various other works were done by the fifth respondent in respect of Calicut University and Government Arts and Science College Balussery. Fifth respondent has also produced minutes of the Pre-qualification Committee, evident from Ext. R5(n) constituted on 25.02.2016, which according to the fifth respondent was aware to the petitioner as well, and the same is suppressed to mislead
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this Court. It is also stated the qualification is made by the Pre-qualification Committee and out of the four contractors, one was rejected as not pre-qualified, and three persons were found to have pre-qualified and fifth respondent was the lowest bidder. It was thereupon that fifth respondent is selected by the third respondent to carry out the work, as per Exts. P1 and P2.
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stand adopted in the writ petition and also contending that respondents 2, 3 and 8 to 10 committed a grave error in pre-qualifying the fifth respondent, since the details of the work stated to have been executed by the fifth respondent is not available. There is no acceptable material on record to show that fifth respondent has executed one building work of similar nature, with value not less than 231 Lakhs, under a single agreement, as stipulated in Clause 4.2.1 of Ext. P2. It is also stated, Ext. R5(r) agreement is not reliable, since the first page of the agreement is prepared in stamp paper No. BA. 154250 and the second page in stamp paper No. BA 154253 and there is no explanation as to what happened for stamp papers – BA 154251 and BA 154252. Therefore, it is the contention of the petitioner that the reliefs sought for in the writ petition is to be granted to the petitioner.
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the basis of the response to the tender invitation, meeting of the Pre-qualification Committee for Harbour Engineering Department was held on 25.02.2016. Committee evaluated the tender submitted by four tenderers namely i) K.J.Joy, ii) A.K. Ratheesh, (party respondent in both the writ petitions) iii) T.P. Prakashan (petitioner in W.P.(C). No. 7836/2016) and K. Muhamed Haji (petitioner in W.P.(C). No. 8217/2016).
W.P.(C).No. 8217/2016
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advanced by the learned Senior counsel for the petitioner is that the Committee evaluated the technical bid, who have analysed the experience of the petitioner in the building work amply rather than taking a decision based on superficial nomenclature of the work carried out. It is also contended that petitioner should have been given an opportunity to submit further depictions regarding the work, under the title experience. Ext. P3 is the experience certificate produced by the petitioner, wherein it is reflected that petitioner has completed construction of a road with agreed PAC of an amount of Rs. 8,69,41,348/-. Yet another certificate shows that petitioner has been awarded the work “additional works in and around the Indoor Stadium, Mundayad, Kannur”, for 35th National Games under National Games, Secretariat, Thiruvananthapuram for a contract amount of Rs. 3,52,70,242/- from where it is discernible that petitioner has completed the work satisfactorily for an amount of Rs. 4,01,95,436/-. Yet another certificate shows that petitioner has completed the work of an Ice Plant at Valappattanam
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relating to Kerala State Co-operative Federation for Fisheries Development Limited at an amount of Rs. 2,23,18,550. Another experience certificate of the petitioner shows that petitioner has satisfactorily completed road works above Rs.1 Crore, 3 Crores and 2 Crores respectively. The main contention advanced by learned counsel for the petitioner is based on the certificate dated 28.09.2015 issued by the National Games, Kerala where the petitioner has completed a work of more than Rs. 4 Crores. Therefore, it is the contention of the petitioner, that itself is sufficient to pre-qualify the petitioner, as per the notice inviting tender. The petitioner has produced Ext. P6, as an additional document in order to establish that the work relating to the National Games was construction of a building. Petitioner has also produced certain photographs of the works carried out including face lifting of the existing stadium complex. Therefore, it is the contention of the learned Senior counsel for the petitioner, petitioner has every qualification to satisfy the pre-qualification in the bid, with respect to technical specifications. On the other hand
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learned Government Pleader as well as the party respondent, who is the successful bidder submitted that the constructions carried out by the petitioner, with respect to the National Games is nothing but face lifting of existing structure using steel and other structural glazing materials and therefore, the same will not satisfy the parameters provided in Ext. P1, with respect to completing similar works containing construction of building. It is also the contention of the additional fourth respondent that the tender evaluation Committee comprised of Chief Engineer (Roads, Bridges and Administration), PWD, the Chief Engineer (Administration), Irrigation Department, and the Chief Engineer, Harbour Engineering Department and the Committee has arrived at a finding after scrutinizing all the relevant documents, records and pre-qualified the additional fourth respondent and other two persons on the basis of such evaluation. It is also contended that the minutes of the Committee is uploaded in the Website in order to maintain transparency and fairness. In the tender evaluation, no individual interest was available, since the
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decision was taken by the Committee consisting of three Chief Engineers. The same line of contentions are addressed by respondents 1 to 3 also.
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structural glazing is also a building work, due to the specification made in Ext. P1 tender invitation, with respect to the nature of work experience, the said argument cannot be found sustainable. Therefore, in my considered opinion the rejection of the tender declining pre-qualification to the petitioner, as per Ext. P2 cannot be said to be illegal or arbitrary in any manner. It is a well settled proposition that in a contractual matter, unless and until patent illegality, perversity, arbitrariness and malafides alleged and proved a writ petition cannot be entertained. The tenor of the contentions raised in the writ petition and the nature of documents produced shows that the evaluation done by the tender committee, as per Ext. P2 and eliminating the petitioner from pre-qualifying the tender is in accordance with law. Therefore, W.P.(C).No. 8217/2016 has no legal sustenance and resultantly the same is dismissed.
W.P.(C).No. 7836/2016
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produced Ext. P5 experience certificate to show that he has completed the work of Rs. 326.75 Lakhs is nothing but construction of godown, compound wall, watchman's cabin etc., and therefore the fourth respondent was not justified in issuing Ext. P5 certificate to the petitioner and the same was done suppressing true facts with the intention of helping the fifth respondent. It is also submitted that the construction carried out by the fifth respondent is relating to construction of a godown block in three floors with VDC flooring and facility for providing goods lift, earth cutting and levelling for site development works, construction of compound wall and retaining wall along the boundary of the site covering 15 acres of land, main gate and watchman's cabin and internal roads and external approach road from main road to dairy plant site with box culvert. It is also stated that the experience certificate produced by the fifth respondent was not issued by the competent authority since the same was issued by a person below the rank of Executive Engineer/Agreement Authority. It is also the contention of the learned counsel for the petitioner that
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having realised that the fifth respondent is not a qualified person, the same was brought to the attention of the agreement authority, as per Ext. P6 letter. However, the same was ignored for the reasons best known to the said authority. According to the petitioner, petitioner is the only person eligible to get award of the work considering the qualifications and rate quoted, since the rate quoted by the sixth respondent is higher than the rate quoted by the petitioner. It is also contended that the decision of the Prequalification Committee, pre-qualifying the fifth respondent for the work is wrong and arbitrary. It is submitted that the Pre-qualification Committee has not taken into consideration the real nature of work carried out by the fifth respondent, as per Ext. P5 certificate issued by the fourth respondent and that to by an incompetent person. The contention advanced by the petitioner is stoutly refuted by the third respondent by stating that all technical bids were scrutinised by the tender evaluation Committee consisting of Chief Engineers alone of various departments and the petitioner could not establish any case of illegality,
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arbitrariness or malafides on their part, in choosing the fifth respondent as the successful tenderer in the prequalification. It is also the contention of the third respondent that Ext. P5 certificate is issued by a superior authority than the tender authority namely, the General Manager who is drawing much higher salary than the Executive Engineer, from whom the certificate is sought for. The salary comparison is also discussed earlier in order to substantiate the said contention put forth by the third respondent. Admittedly, the financial bid submitted by the fifth respondent was more competent than the tender of the petitioner and other pre-qualified tenderers. Moreover, the fifth respondent has in detail submitted a counter affidavit which is also extracted above and the tenor of the contentions shows that the work carried out by the fifth respondent is in accordance with the specification in the tender notification, in respect of construction of a building of the similar nature. Even though faint attempts are made by learned counsel for the petitioner to canvass a proposition based on Ext. P5 document issued by the fourth
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respondent, on the ground that the fourth respondent did not have competence to issue such a certificate and issuance of it shows the unholy alliance that the fifth respondent maintained with the fourth respondent. It is also contended that overlooking the authority of the Executive Engineer, an inferior person namely, the General Manager has issued the certificate which itself is a complete proof of malafides, is the contention of the learned counsel for the petitioner. However, counter affidavits filed by the third respondent as well as the fifth respondent establish the fact that the certificate is issued by the General Manager of the fourth respondent, who is a competent person and an officer superior to the Executive Engineer. The said contention advanced by the third respondent as well the fifth respondent is not seen refuted in the reply affidavit filed by the petitioner.
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case of malafides, illegality or arbitrariness, in choosing the fifth respondent as the successful bidder in the tender notification in question.
Therefore, W.P.(C).No. 7836/2016 is also dismissed.
SHAJI P. CHALY JUDGE
DCS
3 issues framed by the court
Whether the rejection of petitioner's technical bid and selection of express respondent as successful bidder was arbitrary and arbitrary.
Whether the certificate issued by General Manager was competent and valid for establishing eligibility thresholds.
Whether the adjudicating authority acted in mala fides in qualifying the successful bidder while excluding the petitioner.
T.P.Praakashan
State of Kerala
A.K.R. Constructions
M/s. Ak Ratheesh
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
