Disposed

K.Abdul Rehiman v. Assistant Executive Engineer (Agri)

Kerala HC29 Sept 2016WP(C)/8908/2016

Case brief

AI extract

What is this about?

Petitioner challenged belated tender opening favoring second respondent. Court held proceedings not finalized due pending eligibility inquiry. Directed first respondent to hold deliberations with all bidders within three weeks and complete process within three months.

What did the court decide?

Directed first respondent to issue notice to all bidders within three weeks and complete exercise within three months.

K.Abdul Rehiman Vs Assistant Executive… — Public Procurement and Tenders | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938

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WP(C).No. 8908 of 2016 (K)

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PETITIONER(S):

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K.ABDUL REHIMAN KANIBAVA CONSTRUCTIONS, THOTTARIKIL PURAYIDAM, KALANJOOR P.O., PATHANAMTHITTA DISTRICT,PIN - 689 694.

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BY ADVS.SRI.V.VARGHESE

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SRI.JELSON J.EDAMPADAM

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RESPONDENT(S):

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1. ASSISTANT EXECUTIVE ENGINEER (AGRI) OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER (AGRI), DEPARTMENT OF AGRICULTURE, KAVANADU P.O.,

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KOLLAM - 03.

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2. JOHNSON THANKACHAN

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JR ENTERPRISES, MULLASSERY HOUSE, NIRAPPIL JUNCTION, THALACHIRA P.O., KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691 546.

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R1 BY SENIOR GOVERNMENT PLEADER

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SRI.T.K.ARAVINDAKUMAR BABU

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R2 BY ADVS. SRI.GEORGE VARGHESE

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(PERUMPALLIKUTTIYIL)

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SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 8908 of 2016 (K)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P-1: TRUE COPY OF THE TENDER NO.2016-AGRI-63698-1 DATED 29.1.2016 EXT.P-2: TRUE COPY OF THE RELEVANT EXTRACT OF THE TENDER DOCUMENTS EXT.P-3: TRUE COPY OF THE LIST OF BIDDERS AS DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE IST RESPONDENT EXT.P-4: TRUE COPY OF THE TENDER SUMMARY REPORTS DOWNLOADED FROM THE GOVERNMENT'S WEBSITE. EXT.P-5: TRUE COPY OF THE REPRESENTATION DATED 26.2.2015 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT EXT.P-6: COPY OF THE PRELIMINARY AGREEMETN SUBMITTED BY THE R2. RESPONDENT(S)' EXHIBITS : ----------------------EXT.R2(a): COPY OF COMMUNICATIONE EVIDENCING ENLISTMENT ALONG WITH ITS RENEWAL. EXT.R1(b): COPY OF PERLIMINARY AGREEMENT FORWARDED BY THE WRIT PETITIONER. EXT.R1(a): COPY OF THE E-TENDER NOTICE DT 29/1/20165. EXT.R1(b1): COPY OF THE HEARD COPY. EXT.R1(b2): COPY OF THE HEARD COPY. EXT.R1(b3): COPY OF THE HEARD COPY. EXT.R1(b4): COPY OF THE HEARD COPY. EXT.R1(b5): COPY OF THE HEARD COPY. EXT.R1(C): COPY OF THE TABULATION STATEMENT EXT.R1(D): COPY OF THE RECOMMENDATION FROM JILLA PANCHAYAT

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WP(C).No. 8908 of 2016 (K)

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EXT.R1(e): COPY OF THE SENCTION FROM JILLA PANCHAYAT. EXT.R1(f): COPY OF THE HEAD COPY. EXT.R1(g): COPY OF THE HEAD COPY. EXT.R1(h): COPY OF THE HEAD COPY. EXT.R1(i): COPY OF THE WORK ORDER ISSUED ON 29/2/2015. EXT.R1(j): COPY OF THE NOTICE DT 29/7/2016.

//TRUE COPY//

P.A. TO JUDGE

SHAJI P. CHALY, J.

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W.P.(C). No.8908 of 2016

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Dated this the 29^th day of September, 2016

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JUDGMENT

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Petitioner is a B class PWD Contractor. Petitioner is aggrieved by the steps taken by the 1^st respondent to award the work of “infrastructure development works at District Agricultural Farm, Anchal 2015 -2016”, Kollam District to the 2^nd respondent in clear violation of the tender conditions. It is in this background, seeking appropriate relieves, this writ petition is filed.

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Material facts for the disposal of the writ petition are as follows; 1^st respondent issued notice inviting tender bearing No.2016-AGRI-63698-1 dated 29.01.2016 for the above work for an estimated amount of Rs.40,00,000/-, evident from Ext.P1. As per Ext.P1, the bid shall be opened on on-line at the office of the 1^st respondent at 2.30 p.m. on 20.02.2016. It can also be seen that all bid/tender documents

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are to be submitted 'on-line' only. Accordingly, petitioner downloaded the tender documents from the official website of

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W.P.(C). No. 8908 of 2016

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the Government of Kerala, evident from Ext.P2. In Ext.P2 clause 4(iii) reads thus:

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“An envelope shall be sent to the Tender Inviting Authority by Speed Post/Registered Post. Enclosed with an attested copy of his/her valid and active Registration Certificate. The bidder shall get the Registration Certificate attested from the Superintending Engineer/Executive Engineer of PWD or by State Agriculture Engineers/Executive Engineers (Agri) of Agriculture Department. The envelope, containing the attested copy of the valid and active Registration Certificate, should reach the department on or before the bid opening date & time, failing which, the bid is liable to be rejected. The department shall not be responsible for any postal service delay or any other delay.”

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Accordingly, petitioner submitted his competitive tender fully complying with all the conditions in Ext.P2. But, 1^st respondent informed the 2^nd respondent about the competitive rates quoted by the contractors including petitioner and persuaded him to submit the envelope. Second respondent, therefore, submitted the envelope beyond the stipulated time. Thereafter, 1^st respondent made it appear

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W.P.(C). No. 8908 of 2016

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that the bid was opened close to the midnight of 23.02.2016. The same is illegal and arbitrary. The list of bidders downloaded from the official website of the 1^st respondent is produced as Ext.P3 and tender summary report is produced as Ext.P4. Ext.P4 shows that the bid was opened at 11.42 pm on 23.02.2016, which according to the petitioner, is absolutely against the tender conditions. In such constrained circumstances, on 26.02.2016, petitioner submitted a representation before the 1^st respondent. However, no orders are passed on Ext.P5. It is thus challenging the action of the 1^st respondent selecting the 2^nd respondent to execute the contract, this writ petition is filed.

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First respondent has filed a counter affidavit contending that due to certain technical error consequent to the poor infrastructure available in the 1^st respondent's office, the tender could not be opened. However, the District Panchayat Committee has to accord sanction to the tender, which was scheduled on 24.02.2016. Thereupon, the officers by resorting to their personal desktops has opened the

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W.P.(C). No. 8908 of 2016

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tenders on 24.02.2016. It is thereupon that, delay occurred in opening the tender, and there is no merit in the contentions raised by the petitioner against the said submissions made. However, in paragraph 9, in specific terms it is stated that “Now it is found that the contract licence issued from the Military Engineering Service is not a tender condition, fixing the eligibility to participate in the tender proceedings. So show cause notice dated 29.7.2016 was issued to the 2^nd respondent”, evident from Ext.R1(j). It is also noted that if the 2^nd respondent is ineligible to participate in the tender process due to the lack of his contract licence as stipulated in the tender conditions, it is decided to cancel the work awarded to him by the 1^st respondent. Therefore, according to the 1^st respondent, in such circumstances, re-tendering will be be done to award the work afresh.

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Second respondent has filed a counter affidavit making contentions in line with the contentions raised by the 1^st respondent. That apart it is also contended that, 2^nd respondent is a qualified person, who was having a licence of

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W.P.(C). No. 8908 of 2016

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a C class Contractor, valid upto 31.12.2015, which was sought for renewal and finally the renewal was granted during March, 2016. Therefore, according to the 2^nd respondent, 2^nd respondent is a qualified person to participate in the tender proceedings and the contentions raised otherwise by the petitioner cannot be sustained under law.

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Heard learned counsel for the petitioner, learned Senior Government Pleader and learned Standing Counsel appearing for the 2^nd respondent.

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With respect to the contentions raised by the petitioner in respect of the disqualification of the 2^nd respondent, 1^st respondent has initiated proceedings, evident from Ext.R1(j), by issuing a show cause notice and the proceedings are going on, and therefore, it cannot be termed that, the tender proceedings are complete by conferring the tender to the 2^nd respondent. With respect to the contentions raised by the petitioner regarding the opening of tender belatedly in order to suit the convenience of the 2^nd respondent may not be correct in view of the contentions

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W.P.(C). No. 8908 of 2016

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offered by the 1^st respondent with regard to the technical snag that occurred for opening the computer in order to evaluate the tenders submitted by the respective bidders through on-line. Therefore, there is no established case before this court in order arrive at a finding that it was with the malafide intention of helping the 2^nd respondent that the tender was opened belatedly.

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However taking note of the developments that took place pursuant to issuance of Ext.R1(j) notice, it cannot be said that, the tender proceedings are finalized by the 1^st respondent. In that view of the matter, after ascertaining whether the 2^nd respondent is qualified or not, in my considered opinion, the 1^st respondent will be at liberty to invite all the bidders participated in the tender in question for deliberation and make every attempt in order to arrive at a logical conclusion with respect to the tender. Ultimately after undergoing such process, if the 1^st respondent finds that, the feasible method is to re-tender, then the 1^st respondent will be at liberty to go ahead. In order to enable the bidders to

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W.P.(C). No. 8908 of 2016

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participate in the deliberation, 1^st respondent shall issue notice to all the bidders within three weeks from the date of receipt of a copy of this judgment and the whole exercise shall be completed within a period of three months from the date of

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receipt of a copy of this judgment.

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Writ petition is disposed of accordingly.

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Sd/- SHAJI P. CHALY JUDGE

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smv 29.09.2016

K.Abdul Rehiman v. Assistant Executive Engineer (Agri)

Case brief

What is this about?

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K.Abdul Rehiman v. Assistant Executive Engineer (Agri)

Case brief

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