Petitioner asserted pre-qualification criteria in a tender invitation for work under Rs. 5 Crores were illegal, relying on a draft document. Holding the criteria were in public interest, the court dismissed the writ petition.
Writ petition dismissed; direction to consider the bid rejected.
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 P.B.SURESH KUMAR
TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939
WP(C).No. 16737 of 2017 (N)
PETITIONER :
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M/S. RED ROCK DEVELOPERS ROOM NO. 408, MELANGADI POST, KONDOTTY, MALAPPURAM DISTRICT,
PIN - 673 638, REPRESENTED BY ITS MANAGING PARTNER, P.P. ABDUL SALEEM.
BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI
RESPONDENTS :
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1. THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, ROADS & BRIDGES, NORTH CIRCLE, PWD COMPLEX, MANANCHIRA, KOZHIKODE DISTRICT, PIN - 673 001.
2. GOVERNMENT OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SRI.K.J.MANURAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 16737 of 2017 (N)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: TRUE COPY OF THE CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER PWD ROADS DIVISION, MANJERI DATED 02.12.2014. EXHIBIT P2: TRUE COPY OF THE CERTIFICATE DATED 03.04.2017 ISSUED BY THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, MALAPPURAM. EXHIBIT P3: TRUE COPY OF THE RELEVANT PAGE OF THE WORK AGREEMENT EXECUTED BY THE PETITIONER WITH THE 1ST RESPONDENT DATED 10.11.2016. EXHIBIT P4: TRUE COPY OF THE E TENDER PUBLISHED BY THE IRRIGATION DEPARTMENT DATED 21.04.2017. EXHIBIT P5: TRUE COPY OF THE E TENDER DATED 24.04.2017. EXHIBIT P6: TRUE COPY OF THE RELEVANT PAGED OF THE STANDARD BID DOCUMENT FOR E-TENDERING WORKS COSTING RS. 5 LAKHS PUBLISHED IN THE SITE. EXHIBIT P7: TRUE COPY OF THE RELEVANT PAGED OF THE STANDARD BID DOCUMENT FOR E-TENDERING WORKS COSTING RS. 5 CRORES PUBLISHED IN THE SITE. EXHIBIT P8: TRUE COPY OF THE TENDER NOTICE PUBLISHED BY THE PUBLIC WORKS DEPARTMENT WITH RESPECT TO WORK ABOVE 5 CRORE. EXHIBIT P9: TRUE COPY OF THE TENDER NOTICE PUBLISHED BY THE PUBLIC WORKS DEPARTMENT WITH RESPECT TO WORK BELOW 5 CRORE.
WP(C).No. 16737 of 2017 (N)
EXHIBIT P10: COPY OF THE BOQ SUMMARY DETAILS PUBLISHED IN THE OFFICIAL WEBSITE OF THE R1 (IA NO.7956/2017) EXHIBIT P10: COPY OF THE WEBSITE PAGE OF THE KERALA PUBLIC WORK DEPARTMENT. EXHIBIT P11: COPY OF THE RELEVANT PAGES OF REVISED EDITION OF PWD MANUAL 2012. EXHIBIT P12: COPY OF THE CERTIFICATE OF EXPERIENCE DT 20/6/2017 ISSUED BY THE R1.
RESPONDENT(S)' EXHIBITS :
EXT.R1(a): COPY OF THE RELEVANT PAGE OF THE REVISED PWD MANUAL
//TRUE COPY//
P.A. TO JUDGE
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P.B.SURESH KUMAR, J.
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W.P.(C).No.16737 of 2017
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Dated this the 1st day of August, 2017
J U D G M E N T
The petitioner is a registered contractor. Ext.P5 is a tender invitation made by the first respondent to execute a road work. It is stipulated in Ext.P5 invitation that only contractors who have successfully completed at least one similar work costing more than 40% of the probable amount of contract (PAC) of the subject work during the last five years, are entitled to participate in the tender process. The petitioner has not executed till date a similar work costing more than 40% of the PAC of the subject work. Nevertheless, he submitted his bid in response to the said invitation and thereafter instituted
W.P.(c).No.16737 of 2017 : 2 :
this writ petition seeking, among others, a direction to the respondents to consider his bid also for award of the work. The case of the petitioner is that Ext.P6 is the standard bid document finalised by the Government for works costing upto Rs.5,00,00,000/-; that Ext.P6 standard bid document does not contain a stipulation as contained in Ext.P5 invitation and therefore, the conduct of the first respondent in stipulating a qualification criteria as referred to above in Ext.P5 is illegal.
“6. The document produced as Exhibit P7 and P7 by the petitioner is only the draft published in the department for reviews and discussion. It is not an approved document. In the first page of
W.P.(c).No.16737 of 2017
: 3 :
that document itself, it is clearly stated that it is a “Draft for approval”. As per PWD manual, it is clearly stated that post qualification tender shall be followed for works costing between Rs.100.00 Lakhs to Rs.500.00 Lakhs and Pre-qualified tender for works costing more than 5.00 Crore. Since the PWD Manual clause 1404.2.6 and 2004 clearly specify the procedure to be followed for post and pre-qualification tenders, the petitioner's contention is not sustainable in law.”
as also the learned Government Pleader.
W.P.(c).No.16737 of 2017
: 4 :
“For work costing above Rs.5 crores pre qualification tender shall be followed. The criteria for the evaluation shall be prescribed in the bidding document.”
True, the Manual provides that for works costing above Rs.5,00,00,000/-, pre-qualification tender shall be followed. The above provision, according to me, cannot be relied on to contend that there shall not be any pre-qualification tender for works costing below Rs.5,00,00,000/-. The petitioner has no case in the writ petition that the impugned stipulation is included in Ext.P5 invitation maliciously to exclude the petitioner and other similarly placed from participating in the tender. In the absence of such a case, stipulations of the instant nature can only be understood as stipulations introduced in public interest.
In the said view of the matter, I do not find any merit in the writ petition and the same is, accordingly, dismissed.
Sd/- P.B.SURESH KUMAR JUDGE
rsr
2 issues framed by the court
Whether a stipulation requiring contractors to have completed similar work costing more than 40% of the project value disqualifies the petitioner from bidding.
Whether Pre-Qualification Tenders are legally impermissible for government works costing below Rs. 5 Crores.
M/s. Red Rock Developers
The Superintending Engineer
Government of Kerala
P.B.Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
