Dismissed

Tetra Queens Distilleries and Braveries Private Limited v. the Managing Director, Kerala State Beverages Corporation

Kerala HC19 Jun 2019WP(C)/6179/2019

Case brief

AI extract

What is this about?

The Court dismissed a writ petition by a distillery company challenging the exclusion of its bid in a public tender. The company claimed the portal was unusable, but court records showed successful uploads by others. Relying on precedent, the court held the portal was operational and the exclusion lawful.

What the court decided

AI extract

Tetra Queens Distilleries and Braveries… — Public Procurement and Tenders | Kerala HC (2019)

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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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WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941

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WP(C).No.6179 of 2019

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PETITIONER/S:

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TETRA QUEENS DISTILLERIES AND BRAVERIES PRIVATE LIMITED SUKTHOLEM, MOLLAM, GOA-403 410, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER , SREEKUMAR T, AGED 43 YEARS, S/O. THANKAPPAN PILLAI, PUTHUPPALLY HOUSE, MAYYANAD P.O, KOLLAM DISTRICT.

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BY ADVS. SRI.K.MOHANAKANNAN SMT.T.V.NEEMA

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RESPONDENT/S:

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1 THE MANAGING DIRECTOR, KERALA STATE BEVERAGES CORPORATION BEVECO TOWER, THIRUVANANTHAPURAM-695 001

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2 ADDL.R2 . KERALA INFORMATION TECHNOLOGY MISSION, ICT CAMPUS, KELTRON BUILDING, VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS SECRETARY.

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IS IMPLEADED AS PER ORDER DATED 6/3/19 IN IA.NO.1/19. BY ADVS.

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SRI.NAVEEN.T., SC, KERALA STATE BEV.CO. M. AND M.

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SR.GOVERNMENT PLEADER,SRI.B.VINOD

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.6179 of 2019

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JUDGMENT

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Petitioner is a distillery, which has allegedly participated in a rate tender invited by the Kerala State Beverages Corporation. According to the petitioner, as per the stipulations contained under Ext.P1, offers were to be submitted with chellan for Rs.12,05,600/- at or before 4 pm on 25.2.2019. Hard copies of the offer with Annexures was submitted at 3.50 pm on 25.2.2019, evident from Ext.P2. However, according to the petitioner, the server was not working from 1 pm to 4 pm on 25.2.2019 and therefore, petitioner could not upload the offer in the portal. It is thus seeking appropriate directions, enabling the petitioner to submit the bid and consideration by the respondent Corporation, this writ petition is filed.

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2 As per the direction of this Court, Kerala Information Technology Mission was impleaded as the additional 2^nd respondent. The 1^st respondent has filed a detailed counter affidavit justifying the stand adopted, since the petitioner could not successfully upload the offer at or before 4 pm on 25.2.2019, and in accordance with the stipulations contained in Ext.P1, no offers received after the cut off date and time shall not be considered by the Corporation.

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The 2^nd respondent has filed a detailed counter affidavit, wherein it is stated that, upon verification of the details of server

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WP(C).No.6179 of 2019

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logs, it has been found that there were no issues in the State e- tenders portal on 25.2.2019 and the portal was very much operational. As per the hour wise report from the e-tenders portal, 349 bids were placed after 1 pm on 25.2.2019 and the contention of the petitioner to the contrary is not correct. That apart it is stated that the login ID of the petitioner for logging into the state E-tenders portal is [email protected]. On examining the system generated, bidder activity report for the afore said login ID it has been verified that on 25.2.2019, the user had logged in 6 times between 1 pm and 4 pm. This clearly shows that the e-tender portal was operational. The login details is produced as Ext.R1 (a). Therefore, it is submitted that the tender was open for the participation for one month from 25.1.2019 to 25.2.2019 and the party had attempted to submit the bid only 3 hours prior to the closing time. The e-tendering system is designed and implemented as a mission mode project to ensure transparency, integrity and credibility in public procurement. Therefore, the sum and substance of the contention put forth by the 2^nd respondent is that, there was no serious irregularity or error or mistake on the part of the respondents in receiving any offers made by the petitioner and consider the same in accordance with law.

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A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition.

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WP(C).No.6179 of 2019

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I have considered the rival submissions made across the

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Bar and perused the pleadings and documents on record.

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The discussion of facts made above would make it clear that, it is an admitted fact that petitioner could not upload the offer. However, from the counter affidavits filed by the 1^st and 2^nd respondents, it is clear and evident that, on the last date ie. 25.2.2019, various offers were received in the e-portal and therefore, it cannot be said that the portal was not available for uploading the offer of the petitioner.

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In my considered view, though petitioner made attempts between 1 pm and 4 pm 6 times, the offer could not be uploaded in a proper and effective manner, so as to reach the portal enabling the 1^st respondent to process the same in accordance with law. The issue with respect to incorrect/defective uploading was considered by the Apex Court in Maharashtra Housing Development Authority vs. Chapoorji Pallonji and company private limited and others

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[2018 (3) SCC 13], Paragraphs 7 to 9 are relevant to the context, which reads thus.

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“7. Pursuant to the aforesaid order dated 18-01-2018² NIC has filed an affidavit dated 23-01-2018 wherein it has been stated that the data uploaded by the first respondent cannot be retrieved by NIC and Maharashtra Housing Development Authority jointly or severally under any circumstances in the present e-Tendering system with prevailing Government of India Guidelines. In para 7 of the aforesaid

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WP(C).No.6179 of 2019

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affidavit dated 23-01-2018 the NIC has also stated as under:

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“7. As far as NIC is concerned it cannot access the invalid bid documents since it has neither the keys nor the approved process to download the same pertaining to any packet/envelope/cover. Even though keys are available with Maharashtra Housing Development Authority (petitioner), but even with that keys the bid documents cannot be retrieved at this time as the bid opening event has already been concluded. Thus bid documents cannot be retrieved under any circumstances from the e-Tendering system.”

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The above apart, in the counter-affidavit filed by NIC it has been stated that the bid uploaded by the first respondent was invalid as the representative(s) of the said respondent did not press the “freeze button” which alone would have completed the bid process. In this regard, NIC has further stated that on 27-07-2017 there was no problem in the server during the relevant time period and as many as 427 bid documents (pertaining to other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e.2707-2017. NIC in its affidavit has further stated that if the first respondent had uploaded the documents at 1216 hours on 27-072017 and it had not received the bid submission acknowledgement it still had 44 minutes to contact NIC for help which help was not sought. In this regard, NIC has further stated that the first respondent bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it was familiar with the entire process.

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If NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by travelling beyond the Government of India Guidelines,

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WP(C).No.6179 of 2019

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should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr.Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the “freeze button”; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confer on the said respondent a second opportunity, which cannot be countenanced.”

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On an appreciation of the rival contentions and evaluating the judgment rendered by the Apex Court, I am of the considered opinion that petitioner has not made out any case of arbitrariness or illegality on the part of the 1^st respondent in receiving or processing any application properly uploaded by the petitioner. In that view of the matter, the writ petition has no sustenance, accordingly, it is dismissed.

sd/

SHAJI P.CHALY

JUDGE

Jm/

WP(C).No.6179 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE NOTIFICATION ISSUED BY THE RESPONDENT DATED 24.1.2019

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EXHIBIT P2 TRUE COPY OF THE RECEIPT DT. 25.2.2019 WITH COPY OF DD NO. 638757

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EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 25.2.2019 SUBMITTED BY THE PETITONER BEFORE THE RESPONDENT.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R1(A) TRUE COPY OF THE USER LOGIN DETAILS GENERATED BY THE E-TENDERING SYSTEM, GOVERNMENT OF KERALA.

Tetra Queens Distilleries and Braveries Private Limited v. the Managing Director, Kerala State Beverages Corporation

Case brief

What is this about?

What the court decided

Tetra Queens Distilleries and Braveries Private Limited v. the Managing Director, Kerala State Beverages Corporation

Case brief

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