Dismissed

B. Rajendran Pillai v. State of Kerala

Kerala HC12 Nov 2020WA/1473/2020

Case brief

AI extract

What is this about?

This writ appeal challenging the dismissal of a tender dispute where the High Court held that the omission of a page in the preliminary agreement was not a minor defect and affirmed the selection of the second lowest bidder without escalation of guarantees.

What did the court decide?

The writ appeal seeking reversal of the judgment dismissing the writ petition was dismissed.

B. Rajendran Pillai Vs State of Kerala — Service and Employment | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942

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WA. No.1473 OF 2020

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[AGAINST THE JUDGMENT IN WP(C) NO.20481/2020(I) DATED 05.11.2020]

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APPELLANT/PETITIONER:

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B. RAJENDRAN PILLAI, AGED 60 YEARS S/O. BHASKARAN PILLAI (LATE), POOJA , NEAR AMAR HOSPITAL, ATTINGAL-695 101. BY ADVS. SRI. J. JULIAN XAVIER SRI. FIROZ K. ROBIN SRI. ROY JOSEPH SRI. JOSE. V.V. (THENGATHARA) SMT. ANIES MATHEW

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY HARBOUR ENGINEERING DEPARTMENT, SECRETARIAT, GOVT. PRESS P.O., THIRUVANANTHAPURAM 695 001.

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2 EXECUTIVE ENGINEER, HARBOUR ENGINEERING, THIRUVANANTHAPURAM, DIVISION, VIZHINJAM, VIZHIJAM, P.O. THIRUVANANTHAPURAM-695 521.

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BY SRI. V. TEK CHAND, SR. GOVT. PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. 1473/2020 2

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JUDGMENT

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Dated this the 12^th day of November, 2020

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S. Manikumar, CJ

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Instant writ appeal is filed against the judgment dated 05.11.2020 in W.P.(C) No.20481 of 2020 by which a learned single Judge of this Court dismissed the writ petition by ordering thus:

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“11. Going by the instances of minor defects in clause 2009.2 it is seen that absence of the agreement in whole or absence of part of the agreement/one page of the agreement among the uploaded documents is not given in the list of minor defects which can be condoned.

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Though the learned counsel for the petitioner strenuously argued that the failure on the part of the internet cafe in uploading one of the pages of the agreement cannot stand in the way of the petitioner's eligibility to participate in the tender, it is seen that the absence of the full agreement among the documents uploaded, cannot be treated as a minor defect, in the absence of any provision to that effect, even in a case where the hard copy is sent, as the same would be contrary to the conditions stipulated in Ext.P1 tender notification.

¶23

In Ext.P6 judgment relied on by the petitioner, it is seen that the petitioner therein failed to sign the Standard Bid Document submitted along with the bid. In that case it appears that there was no complaint received from any other bidders as in the present case. On the other hand in the present case not only that the defect relates to an important document namely the agreement itself, a complaint was also

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received from the 2^nd lowest bidder. In the circumstances of the case, I find nothing illegal on the action of the respondent in not permitting to cure the defect in the tender submitted by the petitioner.

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Writ Petition is accordingly dismissed.”

¶27

Facts leading to the filing of instant appeal are that writ petitioner/appellant, an 'A' class contractor, in response to Exhibit-P1 notification dated 14.07.2020 issued by the Executive Engineer, Harbour Engineering, Thiruvananthapuram, respondent No.2, submitted his e-tender before the last date i.e. on 03.08.2020. As per Exhibit-P2 bid submission confirmation dated 03.08.2020, appellant has uploaded the duly filled and signed copy of preliminary agreement on a stamp paper worth Rs.200/-.

¶28

Appellant has further stated that, while e-filing, due to oversight by the internet cafe person, one of the pages of the preliminary agreement was in blank and it was not noticed before the last date of submission of e-tender. Hence, he has submitted a hard copy of all the documents, as mandated in Exhibit-P1 notification, by registered post before the 2^nd respondent, prior to the opening of the technical bid.

¶29

Appellant has further stated that he came to know about the defect only after the bid was opened on 11.08.2020. Even according to the 2^nd respondent, the defect was only minor and being the person

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who quoted the lowest tender, the appellant was ready to execute the works. Subsequently, he came to understand that he may not be allowed to execute the work on extraneous consideration. In such circumstances, he approached this Court and filed W.P.(C) No.20481 of 2020 for the following reliefs:

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(i) “To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2^nd respondent to permit the petitioner to cure the minor defect in filing the bid submission confirmation through e-filing, in the light of Exhibit-P5 PWD Revised Manual, 2012.

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(ii) To issue a writ of mandamus or any appropriate writ, order or direction, directing the 2^nd respondent to consider and pass orders in Exhibit-P3 and further direct the 2^nd respondent to keep in abeyance all further proceedings initiated pursuant to Exhibit-P1 tender, including tabulation of the tender and execution of agreement.”

¶34

When the writ petition came up for admission, a learned single Judge passed an order on 01.10.2020 directing the learned Senior Government Pleader, to file a statement. It was also ordered that agreement, if any, to be executed with any other person shall be subject to further orders.

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As per the direction of the writ court, the Executive Engineer, Harbour Engineering, Thiruvananthapuram, 2^nd respondent, has filed a counter affidavit, wherein it was contended as follows:

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“A. Harbour Engineering Department is a service department of the Port Department and Fisheries Department of the Government of Kerala. All works in the Harbour Engineering Department are executed based on the PWD Manual. The E-tendering (Notice Inviting Tender) of the work "UCR:-Improvements to Kavalayoor Thaikkavu Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC" was done in the office of the Executive Engineer, Harbour Engineering Division, Vizhinjam, Thiruvananthapuram on 14.07.2020 vide tender No.07/EE/2020- 2021/S dated 14.07.2020 in which, the last date of submission of tender was 03.08.2020 and the date of opening of e- tender was on 07.08.2020.

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B. On 07.08.2020, the bid was opened and five bids were received for tabulation. On verification and tabulation of e-tenders, it was noted that the lowest bidder is Mr. Rajendran Pillai, 16470, Pooja, Virunthikodu, Attingal, the quoted amount is Rs. 42,86,550/- which was 10.47 below the estimate rate and on verifying the documents uploaded, it was found that preliminary agreement worth Rs.200/- has not been uploaded. Whereas, preliminary agreement worth Rs.100/- along with a plain paper was only uploaded through the e-tender portal, as evident from Ext-R2(b) preliminary agreement uploaded by petitioner.

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C. As per clause 2009 of PWD Manual, while opening e-tender, the bidder or his representative might be present before the e-tendering authority. But, in the case on hand, neither the petitioner nor his

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representative was present and hence, the defect could not be intimated at that time. After opening and tabulating the tender, the Executive Engineer, has informed the petitioner regarding the defect identified through phone. But, even after getting the information, the petitioner did not respond to the e-tendering authority till 26.09.2020. In the Standard Bid Document, it was clearly specified that 'Online Tenders /Bids are to be accompanied with a preliminary agreement executed in Kerala Stamp Paper worth Rs.200/-. Tenders/ Bids received online without the details mentioned in clause 4.4 of Part I instructions to the bidders would not be considered and shall be summarily rejected?

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D. It was further contended that the petitioner himself say that he has undertaken various works under PWD, LSGD and Harbour Engineering Department, and has successfully completed the work. If so, such an experienced contractor should have the awareness about the uploading of valid documents in the E- tendering system. But in this case, the contractor has not properly checked the uploaded documents and omitted to upload one of the very important documents, ie., preliminary agreement worth Rs.200/-.

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E. It is also pertinent to note that Mr. Rajendran Pillai had successfully uploaded all documents for two other works previously in this office and executed agreement, and now, those works are progressing.

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F. The petitioner has not responded to the e-tendering authority even after knowing the defect in uploading

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document, viz., preliminary agreement. The second lowest tenderer, has submitted a written complaint, on 25.08.2020, stating that the LI, ie., Sri. Rajendran Pillai has not uploaded a preliminary agreement worth Rs.200/- and hence, be rejected, since it is against Government orders. Under these circumstances, due to the urgency of the work, e-tendering authority has to decide, abiding by the PWD Manual clause 2009.2 and the clause of Standard Bidding document, the second lowest quoted bidder has been selected as the successful bidder. Hence, rejection notice has been issued to the petitioner vide proceedings number D41717/2020/EE dated 18.09.2020. Thereafter, selection notice has been issued to the 2^nd lowest bidder Sri. Nahas Bismillah, Kulamuttom (P.O), Varkala, by accepting his offer for Rs. 42,86,650/-, in order to protect the interest of Government.

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G. It was further contended that in the e- tendering site, each bidder can view and verify whether the documents uploaded are correct and proper, in accordance with the provisions of KPWD Manual and the existing rules. Petitioner's contention that he has submitted all the necessary documents, made mentioned in the bid submission confirmation, is absolutely wrong, since the document which was received from e-tendering site is a blank paper. As per the PWD revised Manual, clause 2009.2 - consideration and tabulation of tenders, it is clearly mentioned about minor defects and in which the item claimed by the petitioner is not included.

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H. It was further contended that in the Kerala Public Works Department Manual, the minor defects to be condoned are specifically mentioned and it does not include this defect. Since the defect detected was not included in the list of minor defects as per KPWD Manual, the e-Tendering authority has to consider the next lowest tenderer as the successful bidder for the work within the firm period.

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I. The 2^nd respondent has further contended that the petitioner has not approached the e-tendering authority before 26.09.2020, even though he knows about the incomplete submission of online bid document. He had the provision to resubmit the tender documents for the same work in the e-tender portal before the date and time of submission of tender, as specified in the standard bidding document as clause 4.9.

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J. The 2^nd respondent has further contended that the above procedure has not caused any injury and hardship to the petitioner. He had an option to rectify the defect, but he has not done so before the last date of e-submission of tender i.e.., before 03.08.2020. Further, clause 4.7 of the Standard Bidding Document specifically mentions that the Tender Inviting Authority shall not be responsible for any failure, malfunction or breakdown of the electronic system while uploading or downloading the document by the bidder during the e-tendering process. In such circumstances, the 2^nd respondent has prayed for dismissal of the writ petition.”

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W.A. 1473/2020 9

¶53

Controverting the contentions of respondent No.2, appellant/ writ petitioner has filed a reply affidavit, reiterating his stand that bid was opened only on 11.08.2020 and not on 07.08.2020, as stated by the 2^nd respondent. Pointing out that the status of the tender continued to be stated as pending in the website, he submitted that the details of the bid were not made available by the 2^nd respondent. He also submitted that the date and time of opening of the bid was available in Exhibit-P7, which would show that the bid was opened only on 11.08.2020.

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Though, in his reply, the appellant has specifically stated that acceptance of offer, after opening the tender is contrary to clause 2009.3, which forbear any negotiation, writ court, without adverting to the same, held that the defect pointed out is not a minor one and, therefore, dismissed the writ petition.

¶55

Being aggrieved, the appellant has filed this appeal on the following grounds:

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A. One of the main arguments raised by the appellant in the writ petition is that, negotiation after opening of the tender is illegal and violation of Clause 2009.3 of the PWD Manual Revised Edition, 2012 (Ext.P5). In the counter affidavit, the 2^nd respondent has clearly admitted that the 2^nd respondent has accepted the offer of one Nahas who is the 2^nd lowest bidder. What is stated in para-6 of the counter affidavit is quoted hereunder for easy reference:-

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"Thereafter selection notice has been issued to the 2^nd lowest bidder Sri. Nahas Bismiliah, Kulamuttom (P.O), Varkala, by accepting his offer for Rs. 42,86,650/- in order to protect the interest of Government".

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Admittedly, negotiation between the 2^nd respondent and Sri. Nahas had taken place and the above action on the part of the 2^nd respondent, after opening the tender, is illegal and contrary to clause 2009.3 of the PWD Revised Manual 2012. Writ court did not advert to the above legal point highlighted by the appellant/petitioner. Hence, for that sole reason, the impugned judgment is liable to be set aside.

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B. The writ court ought to have noticed that clause 2009.3 is given to keep secrecy of the tender and no person shall be permitted to make unlawful enrichment by making negotiations to the detriment of the other person. This position is upheld in the recent judgment dated 19.102020 in W.P.(C) No.6823/2019 and connected cases (Adani's Air Port case). In that case, a request by the State Government was rejected by this Court. Hence, on that count also, non-consideration of clause 2009.3, in the case on hand, is highly unjustified.

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C. It is further contended that discretionary power is given to the officer opening the tender, to protect the interest of the Government, as per Clause 2009.2 of the PWD Manual Revised Edition, 2012. Admittedly, while submitting online e- tender, one of the pages of the agreement was not uploaded due to the oversight of the person who had uploaded the files from the internet cafe viz, Vnet Consultancy, Attingal. The mistake happened not due to any willful omission, but due to

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an accident, which could not be rectified, since the date of submission of the bid was on 3.8.2020, and the bid was submitted on the same date at 11.12 AM, with all pages. The number of pages scanned and submitted is correct. However one page was blank which was unnoticed. The defect was noted by the appellant, after opening the tender that is after 11.8.2020.

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D. Appellant has further contended that since after 3.8.2020, it was impossible to make any correction in the e-tender, he was helpless with regard to the defect happened in submitting e-tender. Apart from that, the 2^nd respondent assured that since the hard copy is containing the entire pages as mandated in Ext.P1, the defect is only a minor one and that is not having any impact in considering his e-tender. However the situation changed only when the so called complaint stated to have been received by the 2^nd respondent which is numbered only on 8.9.2020. The change of the attitude on the part of the 2^nd respondent is, therefore, dubious.

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E. Appellant has further contended that the 2^nd respondent ought to have fixed the tender in his name, by invoking the discretionary power given at clause 2009.2 of PWD Revised Manual. However, the learned single Judge, after quoting only a portion of clause 2009.2, came to the conclusion that the defect is not a minor one, but failed to consider the power given to the officer opening the tender, to protect the interest of the Government. Appellant being the person who quoted the lowest tender, should have allotted the work considering the entire fact situation. The reasoning adopted by the writ court, in not following the dictum in Exhibit-P6 judgment, is legally incorrect.

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Mr. Julian Xavier J., learned counsel for the appellant, made submissions on the above grounds. His main thrust is on clause 2009.3 of the PWD Manual Revised Edition, 2012, that after opening of the tender, negotiation has been made between the 2^nd respondent and Sri. Nahas, 2^nd lowest bidder, and the tender submitted by him has been accepted, which is contrary to the same. It is also his contention that the defects noted are minor in nature and, therefore, the appellant ought to have given an opportunity to rectify the same.

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Learned counsel for the appellant further submitted that even assuming that the tender offered by the appellant was found to be defective, the authority ought to have considered the other tenderers, instead of opting for negotiation with the 2^nd respondent. On the above grounds and submissions, learned counsel for the appellant sought for reversal of the impugned judgment.

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Per contra , inviting the attention of this Court to the relevant clauses in the PWD Manual Revised Edition, 2012, Mr. V. Tek Chand, learned Senior Government Pleader, submitted that the defects noted are not minor.

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Inviting our attention to Clause 4.4 of the Part I instructions to the bidders, he further submitted that the tender inviting authority shall not be responsible for the failure, malfunction, or breakdown of the electronic system while downloading or uploading the documents

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by the bidder during the e-procurement process and tenders received, without the details, will be summarily rejected.

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Learned Senior Government Pleader further submitted that there was no negotiation with the 2^nd respondent, but, acting on the complaint made by Sri. A. Nahas dated 25.08.2020 before the 2^nd respondent and having regard to the urgency involved, decision was taken in tune with clause 2009.2 of the PWD Manual.

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Learned Senior Government Pleader, therefore, submitted that there is no arbitrariness in the selection of Sri. Nahas, the 2^nd lowest bidder. For the abovesaid reasons, he sought to sustain the impugned judgment.

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Heard learned counsel for the parties and perused the material available on record.

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G.O.(P) No.13/2012/PWD dated 1.2.2012 (Exhibit-P4)

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issued by the Secretary to the Government, Public Works (H) Department, Government of Kerala, reads thus:

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“GOVERNMENT OF KERALA

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Abstract

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Public Works Department - Revision of PWD Manual - Approved - Orders issued.

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PUBLIC WORKS (H) DEPARTMENT

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G.O(P) No.13/2012/PWD

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Dated, Thiruvananthapuram, 1^st February, 2012.

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Read: 1) G.O(MS) No.34/2005/PWD dated 4.7.2005

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W.A. 1473/2020 14

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1. Judgment dated 19.11.2010 in WP(C) No.28113/09 H and 30556/09-L

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1. Judgment dated 19/12/2011 in WP(C) No.33912/11

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1. Lr. No.PWD/KSTP/PMT/79/01 dated 5.01.2012 from the Chief Engineer, KSTP. POD

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ORDER

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The PWD Manual is the basic document which outlines the functioning of the Public Works Department. The existing Manual was originally prepared in the year 1972 and since then the structure and functioning methodology of the department have undergone major changes. To keep pace with the contemporary requirement, the Government of Kerala felt the need to update the PWD Manual incorporating the developments in the administrative and engineering fields to enhance skills and efficiency of the department. With this objective Government constituted a Sub-committee vide Government Order read as first paper above for reviewing the preliminary draft of the Manual prepared as part of institutional strengthening of PWD. As per the letter read as 4^th paper above the Chief Engineer, KSTP has submitted the final draft of the PWD Manual to Government for approval.

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Government have examined the revised PWD Manual in detail and are pleased to order as follows:

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(i) The revised PWD Manual with the Quality Assurance /Quality Control Manuals for Minor a Medium works and Major works appended to the revised PWD Manual is approved.

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(ii) The data based on IRC Standards and MORTH specification for road works and CPWD specifications and National Building Code for building works along with PWD schedule of rates revised from time to time will be used for preparing estimates for PWD projects.

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(iii) The relevant provisions in the PWD Codes and the other Codes will be revised on the basis of the revised PWD Manual.

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(By Order of the Governor)

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MANOJ JOSHI Secretary to Govt.”

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Notification dated 14.07.2020 (Exhibit-P1) published by the

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2^nd respondent is extracted hereunder:

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“HARBOUR ENGINEERING DEPARTMENT Office of the Executive Engineer., Harbour Engineering Thiruvananthapuram Division, Vizhinjam

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No: D4/1717/2020/EE

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Dated: 14/07/2020

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NOTICE INVITING TENDER

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e- Government Procurement (e-GP) TENDER NO. 07/EE/2020-21/S Dated 14/07/2020

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The Executive Engineer, Harbour Engineering Thiruvananthapuram Division, Vizhinjam for and on behalf of the Governor of Kerala invites online bids for the work detailed below from the Registered Bidders of Kerala PWD/Central PWD/Other Central or State Government Departments/State or Central Public Sector Undertakings etc.

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1	Name of Work	UCR: Improvements Kavalayoor Thaikkav Kavalayoor Kshethram in Manamboor Panchay Attingal LAC	to u - Road at in
2	location of Work	Manamboor Panchaya Attingal LAC	t in
3	Estimated Cost of the Work	Rs. 4787762.92/-
4	Brief description of work	Tarring Work with retaining-wall	CC
5	Bid Security	Rs.50000/-
6	Bid submission fee (tender fee)	Rs. 2760/- + 18% GST KFC	+ 1%
7	Period of completion	6 Months
8	Classification of Bidder	Class C And Above
9	Last date and time for submission of bids	03/08/2020 at 6.00 PM
10	Date and time of opening of tender	07/08/2020 at 2.00 PM

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Bid documents including the Bill of Quantities (BoQ) can be downloaded free of cost from the e-Government Procurement

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(e-GP) Website www.etenderskerala.govin. All bid documents are to be submitted online only and in the designated. cover(s)/ envelope(s) on the e-GP website. Tenders/ bids shall be accepted only through online mode on the e-GP website and no manual submission of the same shall be entertained. Late tenders will not be accepted. A bid submission fee shall be remitted online during the time of bid submission. The hard copies of certificates and documents, as detailed in clause 4.4 of Part-I Instructions to the Bidders, shall be submitted subsequently after online submission of bids in a separate cover by registered post/speed post before the date and time of opening of technical Price Bid shall only be submitted through online. Details regarding remittance of Bid Submission Fee and Bid Security, Bid preparation and submission are mentioned in the bid document.

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The bids shall be opened online on 07/08/2020 at 2.00 PM at the office of the Executive Engineer, Harbour Engineering, Thiruvananthapuram Division, Vizhinjam, in the presence of the Bidders/their authorised representatives who wish to attend at the above address. If the tender opening date happens to be on a holiday or non-working day due to any other valid reason, the tender opening process will be done on the next working day at the same time and place.

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Online Tenders/ bids are to be accompanied with a preliminary agreement executed in Kerala stamp paper worth Rs.200/-. Tenders/ bids received online, without the details mentioned in clause 4.4 of Part-1 Instructions to the Bidders will not be considered and shall be summarily rejected.

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More details can be had from NIT or the Office of the The Executive Engineer, Harbour Engineering Thiruvananthapuram Division, Vizhinjam during working hours.

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The Tender Inviting Authority/Employer shall not be responsible for any failure, malfunction or breakdown of the electronic system while downloading or uploading the documents by the Bidder during the e-procurement process.

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Details required for e-payment (Details of bank account having core banking facility and e-mail address of the bidder) shall be furnished along with the tender. Tenders not accompanied by these details will be rejected.

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All subsequent Government orders connected to tenders and any revision in the rates of taxes would also be applicable to this tender.

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The Executive Engineer, Harbour Engineering Thiruvananthapuram Division, Vizhinjam receives the right to accept or reject any or all tenders without assigning any reason thereof.

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Sri. G.S. Anilkumar EXECUTIVE ENGINEER Harbour Engineering Thiruvananthapuram Division, Vizhinjam, Thiruvananthapuram For and on behalf of Governor of Kerala”

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As per the tender notification (Exhibit-P1) dated 14.07.2020 issued by the 2^nd respondent, Online Tenders/bids are to be accompanied with a preliminary agreement executed in Kerala stamp paper worth Rs.200/-, tenders/bids received online, without the details mentioned in clause 4.4 of Part-1 Instructions to the Bidders will not be considered and shall be summarily rejected; the Tender Inviting Authority/Employer shall not be responsible for any failure, malfunction or breakdown of the electronic system while downloading or uploading the documents by the bidder during the e-procurement process; details required for e-payment (Details of bank account having core banking facility and e-mail address of the bidder) shall be furnished along with the tender; tenders not accompanied by these details will be rejected; and all subsequent Government orders connected to tenders and any revision in the rates of taxes would also be applicable to this tender.

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Exhibit-P2 is the Bid submission confirmation dated 3.8.2020 submitted through e-tendering system, Government of Kerala.

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Exhibit-R2(c) dated letter dated 25.08.2020 of Mr. Nahas,

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addressed to the 2^nd respondent is extracted hereunder:

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“To

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The Executive Engineer, Harbour Engineering Division, Vizhinjam, Trivandrum.

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Sub:- Tender No.07/EE/2020-21

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Ref:- Improvements to Kavalayoor Tahikkavu – Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC. Sir,

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It is submitted that the preliminary agreement of the lowest quoted tender submitted on 3.8.2020 is incomplete and the same is against the Government orders. Hence, it is requested to reject the same and steps may be taken as per law to allot the tender in my name being the 2^nd lowest tender. I am also ready to undertake the work at the rate quoted by the 1^st lowest tender.

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Hence, it is most humbly prayed that steps may be taken to allot the work in my name.

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Sincerely, A. Nahas.”

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Proceedings in Order No.D4-1717/2020 EE dated 18.09.2020 of the Executive Engineer, Harbour Engineering, Trivandrum, [Exhibit-R2(d)], is extracted hereunder:

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“PROCEEDINGS OF THE EXECUTIVE ENGINEER, HARBOUR ENGINEERING, VIZHINJAM, THIRUVANANTHAPURAM DIVISION

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(Present: Anil Kumar GS, B. Tech)

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Order No.D4-1717/2020 EE dated 18.09.2020

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Sub:- Harbour Engineering Department- improvement of works of roads in coastal areas of Trivandrum district- improvement of

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work by name Kavalayoor Thaikkavu -Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC.

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Ref: Tender No:7/EE/2020-2021 S/dated 14.7.2020

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For the improvement of the Kavalayoor Thaikkavu - Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC in Trivandrum district, tenders were invited and 5 persons have submitted their tender. However on verification it is found that the person namely Sri. Rajendran Pillai who had quoted the lowest rate had incompletely uploaded the preliminary agreement worth Rs.200/- as mandated in the tender notification. Hence, his tender is cancelled as the same is in violation of the conditions in the tender notification.

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Executive Engineer To

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Sri. Rajendran Pillai, 28.9.2020 16470, Pooja, Virunthicode, Attingal.”

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Exhibit-P3 representation dated 26.09.2020 submitted by

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the petitioner to the 2^nd respondent reads thus:

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“From

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B. Rajendran PiIlai, Government. Contractor, Pooja, near Amar Hospital, Attingal.

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Sir,

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Sub:- UCR Improvements to Kavalayoor Thaikkavu - Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC.

¶148

Ref:- Tender ID-2020-HD-371772 Tender ref no.07/EE-21/S Tender dated 3.82020.

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I have submitted tender as per the above tender notification. Total 5 persons have participated in the tender. On verification it is found that my quotation was the lowest, one in

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the tender. I have submitted the tender after complying all the formalities in the tender prior to the last date fixed as 3.8.2020. However till this date, I am not given the selection notice or work order as mandated in the tender notification.

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I have come to know that steps have been taken to allot tender to another contractor against law. The above is absolutely illegal and violation of the provisions related to tender. Government as per GO(P) No.13/2012 PWD dated 111012 have clearly stated the details of procedure to be followed regarding the submission and verification of the tenders. (PWD Manual 2009.2-consideration and tabulation of tenders). The above aspect is clarified by the Hon'ble High Court in identical situations by passing appropriate orders (Judgment dated 11.7.2018 in W.P.(C) No.23139/2018).

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Hence, it is most humbly prayed that my tender being the lowest quoted tender may be approved and further steps may be taken.

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Attingal Yours faithfully

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26.09.2020 B. Rajendran Pillai”

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Exhibit-P5 is the relevant page of PWD Manual Revised

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Edition, 2012. Exhibit-P6 is the judgment dated 11.07.2019 in W.P.(C) No. 23139 of 2018, wherein the petitioner has already approached the Superintending Engineer with a representation seeking rectification of minor defects in the bid documents. Before the writ court, in that writ petition, the learned Special Government Pleader has submitted that non-submission of standard bid document was not a minor defect which could be rectified by the Superintendent Engineer. He has also submitted that if the petitioner therein submits an undertaking before the 3^rd respondent therein, to the effect that he would abide by all the terms of the standard bid document, within a period of five days, his

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bid can also be considered. Recording the said submission of the learned Special Government Pleader, the said writ petition was disposed of.

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It is the specific case of the Executive Engineer, Harbour Engineering Thiruvananthapuram Division, respondent No.2 that as per clause 2009 of PWD Manual, while opening the e-tender, the bidder or his representative might be present before the e-tendering authority. But, in the case on hand, neither the petitioner nor his representative were present and hence, the defect could not be intimated at that time. After opening and tabulating the tender, the Executive Engineer, has informed the petitioner regarding the defect identified through phone. But, even after getting this information, the petitioner did not respond to the e-tendering authority till 26.09.2020. Also, in the Standard Bid Document, it was clearly specified that 'Online Tenders/Bids are to be accompanied with a preliminary agreement executed in Kerala Stamp Paper worth Rs.200/-. Tenders/Bids received online without the details mentioned in clause 4.4 of Part I Introduction to the bidders would not be considered and shall be summarily rejected.

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Contention of the learned counsel for the appellant that the defects pointed out by the 2^nd respondent are minor defects, there was a mistake committed at the internet centre in not uploading the

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remaining pages of the agreement, and when hard copies were given, the 2^nd respondent ought to have accepted the bid, cannot be countenanced, for the reason that as per clause 4.4 of the Instructions (Part I), tenders received without the details mentioned in clause 4.4 of Part I instructions to the bidders would be summarily rejected. Said clause also provides for the tender inviting authority shall not be responsible for the failure, malfunction, or breakdown of the electronic system while downloading or uploading the documents by the bidder during the e-procurement process. That apart, clause 2009.2 of the PWD Manual which permits condoning minor defects does not include incorporating part or full of the preliminary agreement. Clause 2009.2 permits to condone only the following defects:

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a) Omission to sign or include all or any of the plans with tender.

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b) Failure to produce the original chalan for remittance of E.M.D provided in its place the temporary receipt given from the treasury is produced and the original chalan is produced before the evaluation of tender is completed.

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c) Omission to total the different appendices.

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d) Failure to initial all or any of the pages provided he has signed in all the pages containing the rates and in the page in which the tender offer is made.

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e) Failure to write rates in figures against-one or more items of the tender, provided the rates for such items are unambiguously written in words.

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Reading of clause 2009 of the PWD manual, makes it clear that the said clause, enables only certain defects enumerated as minor defects can be cured. Defect noticed by tender inviting authority cannot be cured.

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On the aspect of alleged negotiation, prima facie, we are of the view that a non-suitor has no right to assail the correctness of the procedure adopted. De hors the same, let us consider what the 2^nd lowest bidder Mr. A. Nahas, in his letter Exhibit-R2(c) dated 25.08.2020 addressed to the 2^nd respondent – the Executive Engineer, Harbour Engineering Division, Trivandrum, respondent No.2, has stated. Coming to know that the preliminary agreement submitted by the appellant on 3.8.2020, is incomplete, he has requested to cancel the tender and steps may be taken as per law to allot the tender in his name, being the 2^nd lowest tenderer. Although, he has undertaken to do the work, at the rate quoted by the appellant.

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Indisputably, the tender quoted by the appellant is incomplete with defects, which cannot be cured. Work to be done is improvements to Kavalayoor Thaikkavi-Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC. When the tender quoted by

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the appellant is liable to be rejected, it is not necessary to re-float the tender once again, as it would not only delay the work, for which the tender is floated, but also result in repetition of the whole process.

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Giving due consideration to the submission of the learned counsel for the appellant, we are of the view that there is no negotiation, nor we could find that there is no arbitrary or mala fide on the part of the 2^nd respondent.

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Contention of the appellant is that other tenderers ought to have been given an opportunity, before allotting the work. Being aggrieved by the decision of the tender inviting authority, the appellant has preferred the writ petition. Appellant cannot plead on behalf of the other tenders, as none has come forward to challenge the award of work to the 2^nd lowest bidder. In the absence of any challenge, a litigant to the lis being unsuited, cannot be permitted to advance any submission on behalf of others.

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Rule of the game has started, in terms of the PWD Manual, coupled with the tender conditions and instructions to the tenderers. When the Manual and tender conditions are mandatory, the same have to be satisfied, failing which, the result is rejection. Writ court has properly considered the rival contentions.

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