The Court dismissed a writ petition challenging the disqualification of a petitioner from a tender on grounds that the bid was rejected for not being submitted as a joint venture. The Court held the competition matter was internal to the tender authority.
Writ petition failing is accordingly dismissed.
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 MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941
WP(C).No.678 OF 2020(H)
PETITIONER:
MARINE ELECTRICALS (INDIA) LIMITED B1, UDYOG SADAN 3, MIDC, ANDHERI EAST, MUMBAI-400093, REPRESENTED BY ITS CDR.RAJEEV MALHOTRA(RETD), CHIEF OPERATING OFFICER AND AUTHORIZED SIGNATORY.
BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA KUM.NARAYANI HARIKRISHNAN
RESPONDENTS:
1 COCHIN PORT TRUST REPRESENTED BY ITS CHAIRPERSON, WILLINGTON ISLAND P.O., KOCHI-682003.
2 THE DEPUTY CONSERVATOR, OFFICE OF THE DEPUTY CONSERVATOR, COCHIN PORT TRUST, WILLINGTON ISLAND P O, KOCHI-682003. 3 WARTSILA VOYAGE LIMITED, 1A, TECHNIPLEX 2 BUILDING, VEER SAVARKAR FLYOVER, UDYOG NAGAR, GOREGAON WEST, MUMBAI-400062, REPRESENTED BY ITS DIRECTOR.
R1-2 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
SR. ADV. V.V. ASHOKAN FOR PETITIONER AND SR., ADV. JOSEPH MARKOSE FOR THE RESPONDENT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
This writ petition is filed seeking the following prayers:-
“i) Call for the records of the case from the 2nd respondent in respect of E-tender No. DC/VTMS/2019. "Upgradation of existing Vessel Traffic Management System (VTMS) of Cochin Port Trust and Comprehensive Maintenance (AMC) of the system for next 5 years" and declare by an appropriate writ, or order that the stand taken by the 2nd respondent (through Ext. P3) to disqualify the petitioner in the technical bid as illegal arbitrary and consequently annul the same and issue an appropriate writ or order directing the respondents 1 and 2 to consider the price bid offered by the petitioner and then to proceed to award the work to the successful L1.
ii) Issue an appropriate writ or order declaring that the steps being taken to award the subject work to the 3rd respondent reckoning them as L1 in the price bid is irregular, illegal and null and avoid under the facts and circumstances of the case.
iii) Issue an appropriate writ or order in the nature of mandamus directing the respondents 1 and 2 to award the subject work to the petitioner alone, who being the lowest in the price bid submitted for the work.
iv) Issue a writ of mandamus or an appropriate writ or order directing the Ist respondent to consider Ext. P5 representation and to take a just decision in the matter to alleviate the grievances raised by the petitioner"
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and the learned senior counsel appearing for respondents 1 and 2.
WP(C).No.678 OF 2020(H) 4
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the financial bid submitted by the petitioner. It is further contended by the learned counsel for the petitioner that the form appended to Exhibit P1 tender notice for submission of the bid had a column for entering the full name of the firm and did not have any provision for entering the name of the consortium partners in the case of a Joint Venture. It is submitted that the petitioner was therefore misled by the lack of space for entering the name of the Joint Venture partner in the bid form appended to Exhibit P1. It is contended that since the bid met all the other criteria of eligibility, the rejection of the same on ground that it is not filed in the name of the Joint Venture is completely unsustainable.
WP(C).No.678 OF 2020(H) 6
identified based on the total value of the eligible works done by the partners as per the annexure to the tender document. It is submitted that the bid submitted by the petitioner would show that the entire experience entered was in respect of the consortium partner as is evident from Form No.7.7 submitted by the petitioner and that as such the said consortium partner ought to have been the lead partner. It is submitted that the answer given to the petitioner in Exhibit P4 would have no effect in view of the fact that the petitioner had not submitted the bid as a Joint Venture or consortium. It is further contended by the learned Senior Counsel appearing for the respondents that the consortium partner of the petitioner has neither been shown as a petitioner in this writ petition nor even he impleaded as a respondent.
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Ltd. and others [(2016) 16 SCC 818], it is contended by the learned Senior Counsel for the respondents that this court is not expected to substitute its understanding and appreciation of the tender documents for that of the employer or the tender inviting authority, unless there is evident mala fides or perversity in the understand or appreciation by the said authority. It is stated that unless the interpretation given by the tender inviting authority is seen to be perverse or mala fide or intended to favour one of the bidders, this Court has no reason to interfere with such an interpretation. It is contended that in view of the clear provisions contained in clause 3.4 of Ext.P1 and in view of the admitted fact that the petitioner had submitted its bid not as a joint venture but as an individual firm, the rejection of the bid was perfectly in order and is not liable to be interfered with.
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documents produced by the respondents, in the name of the petitioner alone. It is submitted that Exhibit R1(k) is a screen shot of the options available in the website for selecting the nature of the bid as either individual Company, Joint Venture or otherwise. The petitioner has specified that his bid was as a company. Ext.R1(l) produced by the respondents would show that the bid of the petitioner has specifically not entered as a joint venture bid but was entered as a bid by an individual company. It is stated that the work tendered was with regard to the upgradation of the system for Vessel Traffic Management and that since the system presently in use urgently needs replacement, there is urgency in the matter of carrying out the work.
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submitted in the name of the Joint Venture/ consortium firms. It is not in dispute that the tender was not submitted by the petitioner as a Joint Venture. In the above view of the matter, the contention raised by the learned senior counsel appearing for the petitioner that the rejection of the bid on that ground was hypertechnical, cannot be accepted.
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the effect of the rejection of the technical bid of the petitioner invalidating in view of the fact that the rejection is supported by reasons which are referable to Exhibit P1 tender notice itself. I am of the opinion that in the instant case this Court would not be justified in interfering with the rejection of the technical bid of the petitioner on the grounds raised in the writ petition.
The writ petition fails and the same is accordingly, dismissed.
Sd/
ANU SIVARAMAN JUDGE
SAB
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TENDER NOTIFICATION CONTAINING INSTRUCTIONS PUBLISHED BY 2ND RESPONDENT DATED NIL. EXHIBIT P1(A) TRUE COPY OF THE CORRIGENDUM PUBLISHED BY THE TENDERING AUTHORITY AFTER PRE-BID DISCUSSION DATED 18.11.2019. EXHIBIT P2 TRUE COPY OF THE JOINT BIDDING AGREEMENT DATED 10.12.2019. EXHIBIT P2(A) TRUE COPY OF THE NOTARIZED POWER OF ATTORNEY DATED 10.12.2019. EXHIBIT P3 TRUE COPY OF THE E-MAIL COMMUNICATION GIVEN TO THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 02.01.2020. EXHIBIT P4 TRUE COPY OF THE CLARIFICATION ISSUED BY THE 1ST RESPONDENT DATED NIL. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 7.1.2020.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 A TRUE COPY OF FORM 7.1 FORM OF PARTICULARS OF MARINE ELECTRICALS (INDIA) LIMITED DATED 18.12.2019 EXHIBIT R1 B TRUE COPY OF FORM 7.2 EXPERIENCE RECORD OF MARINE ELECTRICALS (INDIA) LIMITED DATED NIL EXHIBIT R1 C TRUE COPY OF FORM 7.3 SERVICE BACKUP OF MARINE ELECTRICALS (INDIA) LIMITED DATED NIL. EXHIBIT R1 D TRUE COPY OF FORM 7.4 KEY PROJECT PERSONNEL FOR THE EXECUTION OF PROJECT OF MARINE ELECTRICALS (I) LIMITED DATED NIL
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EXHIBIT R1 E TRUE COPY OF FORM 7.5 SUB CONTRACTOR'S DATA OF MARINE ELECTRICALS (INDIA) LIMITED DATED NIL EXHIBIT R1 F TRUE COPY OF FORM 7.6 FINANCIAL DATA OF MARINE ELECTRICLAS (INDIA) LIMITED DATED NIL EXHIBIT R1 G TRUE COPY OF FORM 7.7. CONSORTIUM - DETAILS OF PARTNER OF MARINE ELECTRICALS INDIA) LIMITED DATED NIL. EXHIBIT R1 H TRUE COPY OF LETTER DATED 20.12.2019 ISSUED BY THE PETITIONER MARINE ELECTRICALS (INDIA) LIMITED ISSUED TO THE 2ND RESPONDENT. EXHIBIT R1 I TRUE COPY OF THE UNDERTAKING DATED NIL ISSUED BY THE PETITIONER MARINE ELECTRICALS (INDIA) LIMITED ISSUED TO THE 2ND RESPONDENT. EXHIBIT R1 J TRUE COPY OF FORM 7.1 FORM OF PARTICULARS SUBMITTED BY ANOTHER TENDERER DATED 18.12.2019. EXHIBIT R1 K TRUE COPY OF SCREEN SHOT OF THE REGISTRATION PAGE FOR BIDDERS IN THE E-PORTAL EXHIBIT R1 I TRUE COPY OF SCREEN SHOT OF THE E-PORTAL.
2 issues framed by the court
Whether the rejection of a technical bid because it was not submitted as a joint venture despite the petitioner's intention to do so was legal.
Whether the High Court could interfere with the tender authority's interpretation of the Eligibility Criteria regarding joint venture nominations.
Colour shows how this judgement treated each authority
Silpi Constructions Contractors Vs. Union of India and othersReferred¶33
Silpi Constructions Contractors Vs. Union of India and others [SLP (Civil) Nos.13802 to 13805 of 2019]
Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. and othersReferred¶33
Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. and others [(2016) 16 SCC 818] · Who else cites this
Marine Electricals (India) Limited
Cochin Port Trust
The Deputy Conservator
Wartsila Voyage Limited
anu sivaraman
As recorded by the court registry
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