Dismissed

Atc Telecom v. Kerala State Warehousing

Kerala HC6 Jul 2018WA/1342/2018

Case brief

AI extract

What is this about?

This appeal involved the rejection of a technical bid for telecom tower installation. The High Court upheld the rejection, holding that non-signature on General Conditions was a fatal defect preventing contract acceptance and that quoting prices in the technical bid was non-compliant.

What did the court decide?

Writ Appeal dismissed; rejection of technical bid upheld.

Atc Telecom Vs Kerala State Warehousing — Public Procurement and Tenders | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940 WA.No. 1342 of 2018 IN WPC. 16320/2018

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AGAINST THE JUDGMENT IN WP(C)16320/2018 of HIGH COURT OF KERALA DATED 29.5.2018

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APPELLANT/PETITIONER

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ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED, REPRESENTED BY ITS SENIOR MANAGER (LEGAL) BABU PATTATHANAM, ATC HOUSE, 65/1826-28, CHERAMANGALATH HOUSE, SHENOY ROAD, KALOOR, ERNAKULAM-682 017.

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BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM

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RESPONDENTS/RESPONDENTS:

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1. KERALA STATE WAREHOUSING CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, WAREHOUSING CORPORATION ROAD, ERNAKULAM, KOCHI-682 016.

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2. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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R1 BY ADV. SRI.MAJNU KOMATH, SC, K.S.W.C.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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vpv

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Hrishikesh Roy, Ag. CJ. &

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A.K.Jayasankaran Nambiar, J.

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=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

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W.A.No.1342 of 2018

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=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 6^th day of July, 2018

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JUDGMENT

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Hrishikesh Roy, Ag. CJ.

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Heard Sri.Thomas T.Varghese, the learned counsel appearing for the appellant/writ petitioner. Also heard Sri.Majnu Komath, the learned standing counsel appearing for the Kerala State Warehousing Corporation (hereinafter referred to as “the KSWC” for short). The 2^nd respondent is represented by the learned Senior Government Pleader Sri.V. Tekchand.

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The KSWC issued notice inviting E-Tender on 26.4.2018 (Ext.P7) for the installation of Telecom Monopole/Tower at 56 locations of the KSWC, all across the State. It was a two bid tender process and only when the technical bid is accepted, the price bids are to be opened. The petitioner submitted the technical bid as well as the price bid in separate covers. But his technical bid was rejected under the Exts.P9 and P10 orders by the Managing Director of the KSWC. The ground for rejection of the technical bid is the failure of the tenderer to submit the document with signature, accepting the General Conditions of the contract. The other ground is that the tenderer had quoted their rates, in the technical bid.

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The case projected by the tenderer before the learned single Judge is that requirement for signing the General Conditions of the contract, is not fatal. It was the further submission that since there is a stipulation in the Ext.P7 to quote for minimum 40

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W.A.No.1342 of 2018

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-:2:-

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locations out of the 56 available locations, they quoted the price in the technical bid as well, for those acceptable locations. On these ground, the rejection of the technical bid was challenged by the aggrieved party.

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On the other hand, the respondents contended that in the two bid process, the price could not have been quoted by the tenderer in their technical bid. That apart, non-signing of the General Conditions would indicate that the party had not consented to accept the General Conditions of contract and accordingly it was urged that the tender submitted by the petitioner is technically non-responsive.

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After consideration of the pleadings, the learned single Judge considered the issue on the basis of the rival contentions and concluded that the petitioner is an experienced party in the line and is well-versed with the procedure in the two bid system. The Court noted that the tenderer has to participate in at-least 40 out of the 56 available locations and only this minimum information was required to be provided in the technical bid and quotation of the price, for those locations, was not warranted in the technical bid documents.

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In reference to the clause requiring the tenderer to agree to the General Conditions of the contract by signing the concerned document, the learned Judge noted that non-signing of the documents would indicate the non-acceptance of the General Conditions and on that basis, it was concluded that the rejection of the technical bid on such ground, is permissible and accordingly, the Writ Petition came to be dismissed.

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Before us, the learned counsel for the writ petitioner has reiterated the arguments advanced before the learned Judge and has further contended that nonsigning of the General Conditions is a curable defect. He further submits that on account of the ambiguity in the stipulation in clauses 3 and 5 in the technical bid, the

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W.A.No.1342 of 2018

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-:3:-

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tenderer was misled into believing that the price should also be quoted for the locations for which the tender was submitted.

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The tenderer, as was required, was well-experienced in the two bid process and is expected to be conscious that the price should not be quoted along with the technical bid. On this issue, even if we assume that there is some ambiguity in the stipulation in the technical bid for which the tenderer might have been misled, we cannot ignore the fact that the tenderer had failed to sign the General Conditions. This shows that he failed to comply with an essential condition of the contract to qualify in the technical bid. For this reason, the tenderer was disqualified at the stage of technical bid and his price bids were not opened.

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In our assessment, the non-acceptance of the General Conditions is fatal and is not a curable defect. To reach this conclusion, we gather support from the recent decision of the Supreme Court in Maharashtra Housing Development Authority v. Shapoorji Pallonji and Company Private Limited and Others [(2018) 3 SCC 13].

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Consequent upon the above discussion, the Writ Appeal is found to be devoid of merit and the same is accordingly dismissed.

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Sd/- Hrishikesh Roy, Acting Chief Justice

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Sd/-

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A.K.Jayasankaran Nambiar, Judge

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/true copy/

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P.A. To Judge

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vpv

Atc Telecom v. Kerala State Warehousing

Case brief

What is this about?

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Atc Telecom v. Kerala State Warehousing

Case brief

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