Disposed

M/S. Mathew Korah & Co. v. State of Kerala

Kerala HC12 Sept 2018WP(C)/12243/2018

Case brief

AI extract

What is this about?

In a writ petition filed by a government contractor challenging its disqualification from a tender based on lack of prequalification for similar bridge work, the court found the rejection unsustainable as exact nature was undeterminable from certificates but ultimately disposed of the petition as the work was already awarded.

What did the court decide?

The writ petition was disposed of without interference with the award of work to the 4th respondent, but the rejection of petitioner's technical bid was held unsustainable.

M/S. Mathew Korah & Co. Vs State of Kerala — 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 MRS. JUSTICE ANU SIVARAMAN

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WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940

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WP(C).No. 12243 of 2018

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PETITIONER:

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M/S. MATHEW KORAH & CO GOVERNMENT CONTRACTORS AND ENGINEERS,REGISTRATION NO.14-A/SEPCM/2010-2011 NELLAD PO,MUVATTUPUZHA,ERNAKULAM-686669.REPRESENTED BY ITS MANAGING PARTNER.

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BY ADV. SRI.K.JAJU BABU (SR.)

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,PUBLIC WORKS DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,PIN-695001.

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2 THE CHIEF ENGINEERS COMMITTEEFOR EVALUATING THE PREQUALIFICATION OF MAJOR WORKS & BRIDGES,REPRESENTED BY CHIEF ENGINEER,PWD ROADS,PUBLIC OFFICE BUILDING,THIRUVANANTHAPURAM695033.

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3 THE SUPERINTENDING ENGINEER PWD,ROADS AND BRIDGES,SOUTH CIRCLE,NANDAVANAM ROAD,THIRUVANANTHAPURAM-695033.

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4 MS.MULAMOOTIL CONSTRUCTIONS KUTTOOR.P.O,THIRUVALLA-689106.

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5 MS.SEGURO FOUNDATION AND STRUCTURES PVT LIMITED CHAKKAPPAN CENTRE,EDAPPALLY TOLL,EDAPPALLY,COCHIN682024. BY ADVS. GOVERNMENT PLEADER SRI.N.JAMES KOSHY

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OTHER PRESENT:

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SR.GP K.V.MANOJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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1.This writ petition is filed seeking the following prayers:-

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“i)Issue a writ of certiorari or any other writ order or direction calling for the records leading to Ext.P4 and quash the same to the extent the petitioner is not prequalified notwithstanding the documents accompanying Ext.P2.

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ii)Declare that the acceptance of the price bid submitted by the respondents 4 and 5 as per Ext.P6 who have quoted rates higher than rate quoted by the petitioner as per Ext.P7 without opening the price bid of the petitioner is illegal and unsustainable.

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iii)Issue a writ of mandamus or any other approprite writ order or direction directing the respondents to open the price bid submitted by the petitioner as per Ext.P7 and consider the same along with the price bids of respondents 4 and 5 accepted as per Ext.P6, while finalizing the contract as per Ext.P1.

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iv)Declare that price bid of the petitioner as per Ext.P7 which is the lowest is liable to be accepted for awarding the contract pursuant to Ext.P1 in preference to the price bids quoted by the respondents 4 and 5 as disclosed in Ext.P6, untrammelled by the illegal non prequalification of the petitioner as per Ext.P4.

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v)Declare that any further proceedings pursuant to Ext.P4 and P6 for finalization of the tender pursuant to Ext.P1 and awarding of contract in favour of respondents 4 and 5 is illegal and unconstituional.”

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2.Heard learned counsel for the petitioner, the learned Government Counsel appearing for respondent.

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W.P.(C).No.12243/18

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3.The petitioner, who is an A class contractor had submitted a bid in response to Exhibit P1 tender notice. Petitioner contends that he was pre- qualified on the strength of experience certificate produced along with Exhibit P2 bid. It is stated that by Exhibit P4, the bid of the petitioner as well as four others were rejected on the ground that he had not executed works of a similar nature and was therefore not prequalified under clause 1.3.2 of Exhibit P1. The learned counsel for the petitioner contends that the experience certificate produced by him to show that he has all the requisite pre-qualifications and he had executed one work of a bridge and approach road having more than 50% of the value of the tender work. The petitioner also relies on Exhibit P8 judgment of this Court wherein it has been specifically stated that absolute similarity of work is not a required condition for deciding pre-qualification of contractors.

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4.A statement has been filed on behalf of the 3^rd respondent contending that clause 1.3.2 of Exhibit P1 specifically provided that the bidders shall have successfully completed at least one

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W.P.(C).No.12243/18

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similar work costing more than 40% of the estimated cost of the work tendered. It is stated that the BOQ of the work clearly showed that the work tendered was the construction of pre-stressed bridge. It is further stated as follows:-

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“The very construction methodology of the pre-stressed bridge is different from that of the ordinary bridge constructions. The work involved in one of the works in Exhibit P2 Experience Certificate, i.e, construction of Vattammodu Bridge across Meenachil River is not that of Pre-Stressed Bridge (PSC). The second experience certificate produced by the petitioner at the time of bid is that of a retaining wall.”

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5.It is further stated that the petitioner and four order bidders had not produced certificates to show that they had experience of similar nature of work which is a reason of rejection of the bid.

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6.A counter affidavit has been filed by the 4^th respondent as well stating as follows:-

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“In this context I may submit that as per certificate produced by us we have constructed Kanjiram Bridge across Alappuzha-Kottayam Canal which is pre-stressed bridge work. In the certificate produced

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W.P.(C).No.12243/18

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by us,the details of the work is given. The value of the work is 1329 lakh and date of completion is 30.04.2016, which satisfied the tender conditions for technical qualification. Whether the work is a pre-stressed work is not disputed at all. The details of the stage payment issued by the Chief Engineer in Column-11 it is specified that work is a pre-stressed work and petitioner has no claim that he has conducted such work at any point of time.

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What is pre-stressed work can be explained as follows:-

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“Concrete is a construction material which is strong in compression and weak in tension. When concrete bridge girder is subjected to vehicular loading, top of the girder is compression and bottom portion is in tension and concrete being weak in tension it will crack unable to resist tension. That is the reason concrete structure is reinforced with steel which can resist large tension. Hence concrete structures are commonly called”reinforced concrete structures.” When the span of the girder is large and loading is heavy, steel required will be very land and also crack width will be large leading to corrosion of steel affecting the durability of the structure. Hence, pre compression is introduced wherever tension occurs under operating condition using special quality high strength steel is called “Pre-stressing Steel”. This is called pre-stressed concretes. Because of this, tension in the concrete will be very small, crack width will be less leading to practically no corrosion of steel and many other advantages. But pre-stressing requires very high skill and wide experience. And also it requires specialised tools like pre-stressing jacks.”

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W.P.(C).No.12243/18

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7.A reply affidavit has been filed to the counter affidavit of the 4^th respondent raising contentions with regard to the absence of any mention that the work tendered was a pre-stressed bridge. It is stated that a very small component of the work involved any element of pre-stressing and that the disqualification of the petitioner in respect of this work would have the effect of making the petitioner ineligible to quote for other works of similar nature as well.

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8.I have considered the contentions advanced. It is not in dispute before me that the work in question had been awarded to the 4^th respondent as early as on 5.4.2018 and the work is now in progress. In the above view of the matter, I do not propose to go into the question of the award of work to the petitioner at this distance of time. The learned Senior counsel for the petitioner would contend that the petitioner is essentially aggrieved only by his disqualification, since the same may entail disqualification in respect of further works as well. The learned Government Pleader would submit that the disqualification of the petitioner was only in respect of the

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W.P.(C).No.12243/18

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instant work and that it cannot have the effect of disqualifying

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the petitioner for further works including construction of prestressed bridges, since the technical qualification is considered on a case to case basis alone.

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9.It is seen from Exhibit P2 experience certificate of the petitioner as well as Exhibit P13 experience certificate of the 4^th respondent which is also produced by the petitioner that the works involved in both the cases were construction of bridges. The exact nature of the work and whether it was a pre-stressed bridge or an RCC bridge which was constructed is not discernible from the said certificates. It appears that respondents have relied on personal knowledge of the works in question to contend that the work carried out by the 4^th respondent as evidenced by Exhibit P13 is that of a prestressed bridge and the work carried out by the petitioner in Exhibit P2 is not so. In the above circumstances, I am of the opinion that the finding that the petitioner was not technically pre-qualified to participate in the tender for construction of a bridge as has been tendered in Exhibit P1 cannot be

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W.P.(C).No.12243/18

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sustained. Since the petitioner has not challenged the award of work to the 4^th respondent, I am of the view that the award of work cannot be interfered with. However, the rejection of the technical bid of the petitioner by Exhibit P4 on the ground that he was not pre-qualified cannot be sustained going by the documents produced and relied on. It is made clear that the disqualification of the petitioner by Exhibit P4 can have no effect on any further tender which the petitioner may participate in.

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With the above observations, the writ petition is disposed of.

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Sd/- Anu Sivaraman, Judge

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1

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TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTICE INVITING TENDER VIDE NO.DB31115/2016 DATED 06/03/2018 ALONG WITH THE INSTRUCTION TO BIDDERS.

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EXHIBIT P2

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TRUE COPY OF THE COVERING LETTERS DATED 19/03/2018 FOR PREQUALIFICATION ADDRESSED TO THE 3RD RESPONDENT ALONG WITH RELEVANT DOCUMENTS.

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W.P.(C).No.12243/18

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EXHIBIT P3 TRUE COPY OF THE SUBMISSION OF CONFIRMATION DATED 22/03/2018 IN E- TENDERING SYSTEM GOVERNMENT OF KERALA. EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE PREQUALIFICATION MEETING OF THE CHIEF ENGINEERS COMMITTEE VIDE NO.CE/R&B/PP164/SC/2017-18 DATED 03/04/2018. EXHIBIT P5 TRUE COPY OF THE REQUEST DATED 04/04/2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE PRICE PARTICULARS OF RESPONDENTS 4 AND 5 FOR THE TENDER PUBLISHED BY THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE PRICE BID SUBMITTED BY THE PETITIONER COMPANY BEFORE 3RD RESPONDENT FOR THE TENDER. EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 29/11/2003 IN W.P.(C) NO.31869/2003 OF THIS HON'BLE COURT. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 07/10/2004 IN WA NO.193/2004 OF THIS HON'BLE COURT. EXHIBIT P10 COPY OF THE RELEVANT PAGE OF THE PWD MANUAL REVISED EDITION 2012. EXHIBIT P11 COPY OF THE GOVERNMENT ORDER DATED 06/02/2017 VIDE G.O.(P) NO.16/2017/FIN. EXHIBIT P12 COPY OF THE ABSTRACT OF ESTIMATE PREPARED BY THE PUBLIC WORKS DEPARTMENT.

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W.P.(C).No.12243/18

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EXHIBIT P13 COPY OF THE EXPERIENCE CERTIFICATE DATED 14/10/2016 ISSUED BY EXECUTIVE ENGINEER, PWD ROAD DIVISION TO THE 4TH RESPONDENT (AS OBTAINED FROM THE WEBSITE). EXHIBIT P14 COPY OF THE EXPERIENCE CERTIFICATE BEARING NO.W-148/CN/SCT-PUU/ARCH BR.2037/MULAMOOTTIL DATED 07/06/2017 ISSUED FROM THE OFFICE OF THE DEPUTY CHIEF ENGINEER, CONSTRUCTION III, ARASARADI, MADURAI- 625 016 TO THE 4TH RESPONDENT (AS OBTAINED FROM THE WEBSITE). EXHIBIT P15 COPY OF THE EXPERIENCE CERTIFICATE BEARING NO.W.148/CN/ERS/618 VOL.II DATED 31/01/2013 ISSUED FROM THE OFFICE OF THE DEPUTY CHIEF ENGINEER, ERNAKULAM JN.TO THE 4TH RESPONDENT (AS OBTAINED FROM THE WEBSITE). EXHIBIT P16 COPY OF THE EXPERIENCE CERTIFICATE DATED 01/08/2013 ISSUED BY THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, PATHANAMTHITTA TO THE 4TH RESPONDENT (AS OBTAINED FROM THE WEBSITE). EXHIBIT P17 COPY OF THE EXPERIENCE CERTIFICATE DATED 26/06/2017 ISSUED BY THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, KOTTAYAM TO THE 4TH RESPONDENT (AS OBTAINED FROM THE WEBSITE).

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EXHIBIT P18 COPY OF THE EXPERIENCE CERTIFICATE DATED 24/07/2014 ISSUED BY THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, PATHANAMTHITTA TO THE 4TH RESPONDENT (AS OBTAINED FROM THE WEBSITE).

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W.P.(C).No.12243/18

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EXHIBIT P19 COPY OF THE SUBMISSION OF THE PETITIONER CERTIFIED BY THE EXECUTIVE ENGINEER THAT THE EQUIPMENTS WERE INSPECTED AND FOUND THAT THE EQUIPMENTS ARE OWNED BY THE PETITIONER.

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RESPONDENTS' EXHIBITS:

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ANNEXURE R3(A) TRUE COPY OF THE RELEVANT PAGE OF PART VI OF THE NOTICE INVITING TENDERS. ANNEXURE R3(B) TRUE COPY OF THE BOQ WHICH IS PART NOTICE INVITING TENDER PROVIDING THE ITEMS OF WORK TO BE CARRIED OUT IN EXECUTION OF THE WORK. ANNEXURE R3(C) THE SECOND EXPERIENCE CERTIFICATE PRODUCED BY THE PETITIONER AT THE TIME OF BID. ANNEXURE R3(D) A TRUE COPY OF THE CERTIFICATE ISSUED BY THE DIRECTOR, DESIGN, DRIQ BOARD. EXHIBIT R1 NIL EXHIBIT R2 NIL EXHIBIT R3 NIL EXHIBIT R4 A TRUE COPY OF THE DETAILS OF STAGE PAYMENT OF KANJIRAM BRIDGE.

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True copy

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PS to Judge

M/S. Mathew Korah & Co. v. State of Kerala

Case brief

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M/S. Mathew Korah & Co. v. State of Kerala

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