Partly allowed

Converge Sports Infra (Opc) Pvt. Limited v. Union of India

Kerala HC5 Nov 2021WP(C)/7262/2020

Case brief

AI extract

What is this about?

In a writ petition challenging the rejection of their technical bid for a tender to lay synthetic athletic tracks, the Court set aside the decision. The petitioner acted as an authorized representative of Polytan, Germany. The Court directed the evaluation committee to reconsider the bid and consider documents proving the German manufacturer's direct responsibility before taking a final decision.

What did the court decide?

Rejection of petitioner's technical bid set aside. Technical evaluation committee directed to reconsider the bid within three weeks and ensure work is done by the designated manufacturer.

Converge Sports Infra (Opc) Pvt. Limited Vs… — Public Procurement and Tenders | Kerala HC (2021)

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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 P.V.KUNHIKRISHNAN

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FRIDAY, THE 5^TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943

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WP(C) NO. 7262 OF 2020

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PETITIONER:

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CONVERGE SPORTS INFRA (OPC) PVT LIMITED 1ST FLOOR, 28/3825 B, S.A ROAD, KADAVANTHARA, ERNAKULAM REPRESENTED BY THE MANAGING DIRECTOR MR. MATHEW KURIAN. I.F, TRINITY CASTLE, EDAPALLY P.O, KOCHI 682 024, KERALA.

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BY ADV RAJIT

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RESPONDENTS:

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1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NEW DELHI 110 030

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2 FLAG OFFICER COMMANDING-IN-CHIEF, SOUTHERN NAVAL COMMAND, WILLINGTON ISLAND, KOCHI 682 004.

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3 INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE (NAVY), SOUTHERN NAVAL COMMAND, NAVAL AIRCRAFT YARD, KOCHI 682 004, REPRESENTED BY THE COMMODORE SUPERINTENDENT

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4 CHIEF OF STAFF, SOUTHERN NAVAL COMMAND, WILLINGTON ISLAND, KOCHI 682 004

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5 COMMODORE SUPERINTENDENT , NAVAL AIRCRAFT YARD, KOCHI 682 004

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6 COMMAND SPORTS OFFICER, SOUTHERN NAVAL COMMAND, KOCHI 682 004

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7 ADVANCE SPORT TECHNOLOGY LLP, 2277, RAJA PARK, RANI BAGH, DELHI 110 034.

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W.P.(C).No.7262/2020

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8 GREAT SPORTS TECH LTD, 101, PLOT NO. 52, ST NO. 2, CHIKOTI GARDENS, BEGUMPET, HYDERABAD 500 016

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9 SHIV NARESH SPORTS PVT LTD, E-23 , KARAM PURA (NEAR POST OFFICE), NEW DELHI 110 015.

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10 SYNCOTTS INTERNATIONAL J 219, LANE W-15, WESTERNB AVENUE, SAINIK FARMS, NEW DELHI 110 080.

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BY ADVS.

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SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.SUVIN R.MENON, CGC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.7262/2020

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.7262 of 2020

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Dated this the 05^th day of November, 2021

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JUDGMENT

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This writ petition is filed with following prayers:

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i. Call for the records leading to Ext.P8 and quash Ext.P7 and Ext.P8 issued by the 5^th respondent, by issuance of a writ of certiorari, or any other appropriate writ, order or direction.

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ii. Issue a Writ of Mandamus or any other appropriate Writ order or direction commanding the respondents 1 to 6 to cancel the tender called for as per Ext.P2 and Ext.P3 and issue a fresh tender notification for the work sought to be completed as per Ext.P2 and Ext.P3.

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iii. Declare that the respondents 1 to 6 cannot proceed with the tender process as notified in Ext.P2 and Ext.P3 after the expiry of the period of bid validity.

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iv. Issue a Writ of Mandamus or any other appropriate Writ order or direction commanding the respondents 1 to 6 to consider the bid submitted by the petitioner towards the work notified in Ext.P2 and Ext.P3.

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v. To grant such other and further relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the above case.

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W.P.(C).No.7262/2020

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According to the petitioner, the petitioner company is an authorised representative of a German Company called M/S Polytan, which company is a pioneer in synthetic sports surfaces since 1969. Ext.P1 is a resolution of Polytan, by which it has been resolved by the Board of the Company to authorise the representative of Polytan, which is the petitioner herein, to bid for the work of providing and laying IAAF certified 400 meter 8 lane synthetic athletic track surface of full PUR system at the Command Stadium, Southern Naval Command, Naval Base, Kochi, Kerala, India. According to the petitioner, Polytan offers full range of products for outdoor sports surfaces: from polymeric running tracks, synthetic pitches, shock absorbing surfaces to highly developed artificial turf systems, etc. As per Ext.P2 request for proposal, bids were invited for providing and laying IAAF (International Association of Athletics Federation) certified 400 meter 8 lane synthetic athletic track surface of full PUR system from IAAF approved synthetic athletic track surface manufacturers/ subsidiary companies having valid product approval certificate from IAAF (and not from their agents or distributors or dealers) and for the related works at the Command Stadium,

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W.P.(C).No.7262/2020

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Southern Naval Command, Naval Base, Kochi. Subsequently the 5^th respondent issued a corrigendum to Ext.P2 whereby certain changes were brought into Ext.P2 and the last date and time for depositing the bid was shifted to 29.08.2019 at 15.30 hours and the time and date for opening the bids was 30.08.2019 at 15.30 hours. Ext.P3 is the corrigendum. As per Exts.P2 and P3, the bid can be submitted only by IAAF approved synthetic athletic track surface manufacturers/ subsidiary companies and the validity of the bids would remain valid till 180 days. It is the case of the petitioner that respondents 1 to 5 have uploaded the tender details through the e-procurement system for organisations under MoD. Ext.P4 is the e-procurement system for organisations under MoD uploaded by the 3^rd respondent.

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The petitioner along with respondents 7 to 10 submitted their bids in response to Exts.P2 to P4. According to the petitioner, he was the only qualified bidder since the petitioner submitted the bid as the authorised representative of the manufacturer. The petitioner relied on Ext.P1 board resolution of the manufacturer Polytan. Ext.P5 is the bid acknowledgment. In Ext.P5, the bidder name is mentioned as

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W.P.(C).No.7262/2020

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Converge Sports Infra (Authorised Representative of Polytan). The bid list details were uploaded by the 3^rd respondent in their website and in the said details it can be seen that the bid was submitted by the petitioner as the authorised representative of the manufacturer. Ext.P6 is the bid list details. In Ext.P6 also, Serial No.2 is Converge Sports Infra (Authorized Representative of Polytan). The 5^th respondent rejected the technical bid submitted by the petitioner and accepted the bid submitted by respondents 7 to 10. Ext.P7 is the details/tender summary report. The 2^nd respondent issued a communication to the 5^th respondent informing him that approval has been granted towards technical evaluation committee report and respondents 7 to 10 have been declared as technically qualified firms and the commercial bids were directed to be opened. Ext.P8 is the communication. According to the petitioner, respondents 7 to 10 do not fall within the category of manufacturers or subsidiary company of the manufacturers. It is also the case of the petitioner that respondents 7 to 10 are Indian agents/representative of manufacturers based outside India. Certain documents are produced as Exts.P9 to P12 to prove the same. Based on

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W.P.(C).No.7262/2020

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Ext.P9 to P11, it is submitted that respondents 7 to 11 have bid in their individual capacity and were not qualified in terms of the conditions prescribed in Exts.P2 to P4. Aggrieved by the rejection of the technical bid of the petitioner, this writ petition is filed.

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Heard the counsel for the petitioner and the Central Government Counsel (CGC).

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The counsel for the petitioner reiterated his contentions in the writ petition. The counsel takes me through Ext.R1(a) which is the technical evaluation committee report. In Ext.R1(a), the reason for rejecting the application is specifically mentioned which is as follows:

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“Further, 02 in number class II full PUR IAAF certificates submitted by M/s.Converge Sports Infra for track building projects undertaken in India have been found to be work undertaken by M/s.Polytan, Germany (Original Equipment Manufacturer) which is in contravention with the RFP for the subject case.”

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Moreover, in the tech evaluation matrix, it is stated that the details of two completed/ongoing track building projects undertaken in India (Full PUR system with synthetic track projects in India with their respective “IAAF”

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W.P.(C).No.7262/2020

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certificates) is not available to the petitioner. The counsel takes me through Ext.P1 once again and submitted that it is a company board resolution. The counsel submitted that it has been resolved by the board to authorise their representative in India, M/s. Converge Sports Infra (OPC) Pvt. Ltd, 28/3825 B, S.A. Road, Kadavanthra P.O., Kochi, to bid for the work of providing and laying IAAF certified 400 meter 8 lane synthetic athletic track surface of full PUR system at the Command Stadium. The counsel submitted that Ext.P1 is a company board resolution. The counsel also takes me through Ext.P13 produced along with the reply affidavit filed by the petitioner in which it is stated that the work will be done by Polytan itself including laying of track and installation. On the other hand, the CGC submitted that the authorities considered the bid submitted by the petitioner and rejected the same because Polytan is not a bidder. The CGC submitted that suppose Polytan is not a bidder, there will be difficulty to the respondents to proceed further, if there in any action to be taken against the successful bidder. According to the CGC, the petitioner has not produced any certificate showing that they have got any IAAF certificate. On the other hand, the

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W.P.(C).No.7262/2020

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counsel for the petitioner submitted that the petitioner has no case that they have any IAAF certificate and their case is that the petitioner is only acting on behalf of Polytan and Polytan itself is the person who will do the entire work.

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I considered the contention of the petitioner and the respondents. I heard the counsel for the petitioner and the CGC on 29.10.2021 and reserved the case for judgment. After going through the records, I posted this case as 'to be spoken' and directed the CGC to produce the entire file relating to this matter. The file is produced as directed by this Court. I perused the file and allowed the parties to argue the matter again. On a perusal of the file, it can be seen that Polytan Company itself sent a letter to the CDRPK, Chief Manager (Material) in which it is stated that the name, address and contact of the authorised signatory and Power of Attorney as the petitioner. In the file another letter from Polytan is also seen in which also it is stated that the company authorised Mr.Mathew Kurian, Managing Director, M/s. Converge Sports Infra (OPC) Pvt. Ltd, 28/3825 B, S.A. Road, Kadavanthra P.O., Kochi, Kerala to submit the tender listed above and to act on behalf of Polytan. Moreover, I perused

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W.P.(C).No.7262/2020

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Ext.P1 which is also seen in the file. It will be better to extract Ext.P1 Company Board Resolution:

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“It has been resolved by the board to authorize our representative in India M/S.Converge Sports Infra (OPC) Pvt Ltd, 28/3825 B, S.A. Road, Kadavanthara P.O, Kochi-682 020, Kerala India to bid for the work of providing and laying IAAF certified 400 meter 8 lane synthetic athletic track surface of full PUR system at the Command Stadium, Southern Naval Command, Naval Base, Kochi, Kerala, India. M/S Converge Sports Infra (OPC) Pvt Ltd is authorized to act on our behalf in bidding and executing the project.”

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Thereafter I perused the technical evaluation committee report, which is marked as Ext.R1(a). The only reason to reject the bid of the petitioner as per Ext.R1(a) is like this:

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So, the only reasons to reject the bid of the petitioner is that the IAAF certificate submitted by

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W.P.(C).No.7262/2020

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M/s.Converge Sports Infra for track building projects undertaken in India have been found to be work undertaken by M/s.Polytan, Germany. But, here is a case where the petitioner has no case that they have undertaken any such work. Their case, as evident by Ext.P1 document also, is that they are only the authorised person to sign the documents on behalf of Polytan. Therefore the case of the petitioner is that Polytan itself is the bidder and the petitioner is only acting on behalf of Polytan. The counsel for the petitioner also submitted before this Court that Polytan Company is ready to supply further documents, if any, to show that they themselves are doing the work and if any disputes arises in connection with the work, the authorities can consult Polytan itself. The counsel for the petitioner submitted that if an opportunity is given, the petitioner is ready to produce such documents as required by the respondents to show that Polytan itself is the bidder and the terms and conditions in Ext.P2 is binding to the Polytan Company. If that is the case, I am of the view that there can be a direction to the respondents to reconsider the rejection of the technical bid of the petitioner alone and liberty can be given to the respondents to reconsider the matter after

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W.P.(C).No.7262/2020

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giving an opportunity to the petitioner. If the petitioner produce adequate documents to show that Polytan itself is doing the work, the respondents can accept the same and take appropriate decision in accordance to law. When the petitioner submit before this Court that they are not the agents or distributors or dealers, but they are only acting on behalf of Polytan, I think a reconsideration on the side of the respondents is necessary. I make it clear that I leave open all the contentions of the petitioner and the respondents.

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Therefore, this writ petition is disposed in the following manner:

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The rejection of the technical bid as per Ext.R1(a) and Ext.P7 of the petitioner alone is set aside.

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The technical evaluation committee of the official respondents will reconsider the bid submitted by the petitioner in accordance to law, within three weeks from the date of receipt of a copy of this judgment.

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The technical evaluation committee can direct the petitioner to produce adequate documents

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W.P.(C).No.7262/2020

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to show that the work is going to be done by Polytan Company itself and they are answerable for the same and further they are bound by the conditions in Ext.P2.

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All other contentions of the petitioner and the respondents in this writ petition are left open.

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Sd/- P.V.KUNHIKRISHNAN JUDGE

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W.P.(C).No.7262/2020

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APPENDIX OF WP(C) 7262/2020

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PETITION	ER EXHI	BITS
EXHIBIT	P1	TRUE COPY OF THE COMPANY BOARD RESOLUTION.
EXHIBIT	P2	TRUE COPY OF THE REQUEST FOR PROPOSAL (RFP) NO LP/0219/800(F)/2015-16 DATED 01-07-2019.
EXHIBIT	P3	TRUE COPY OF CORRIGENDUM
EXHIBIT	P4	TRUE COPY OF THE PROCUREMENT SYSTEM FOR ORGANIZATIONS UNDER MOD UPLOADED BY THE 3RD RESPONDENT
EXHIBIT	P5	TRUE COPY OF THE BID ACKNOWLEDGEMENT ISSUED BY THE 3RD RESPONDENT
EXHIBIT	P6	TRUE COPY OF THE BID DETAILS PUBLISHED BY THE 3RD RESPONDENT
EXHIBIT	P7	TRUE COPY OF THE DETAILS/TENDER SUMMARY REPORT UPLOADED BY THE 3RD RESPONDENT
EXHIBIT	P8	TRUE COPY COMMUNICATION BEARING NO SP/2140.31(iii) DATED 03-03-2020
EXHIBIT	P9	TRUE COPY OF THE LETTER OF SUBMITTAL (ANX 1) OF THE 7TH RESPONDENT.
EXHIBIT	P10	TRUE COPY OF THE LETTER OF SUBMITTAL (ANX 1) OF THE 8TH RESPONDENT
EXHIBIT	P11	TRUE COPY OF THE LETTER OF SUBMITTAL (ANX 1) OF THE 9TH RESPONDENT
EXHIBIT	P12	TRUE COPY OF THE LETTER OF SUBMITTAL (ANX 1) OF THE 10TH RESPONDENT.
EXHIBIT	P13	TRUE COPY OF HTE LETTER WRITTEN BY THE PETITIONER DATED 15.10.2019 ALONG WITH ENCLOSURES

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RESPONDENTS' EXHIBITS

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EXHIBIT	R1(A) COPY OF THE TECHNICAL EVALUATION
	COMMITTEE REPORT DATED 26.02.2020
EXHIBIT	R1(B) COPY OF THE CERTIFICATE DATED
	09.11.2015 ISSUED BY TEH INTERNATIONAL
	ASSOCIATION OF ATHLETICS FEDERATIONS
	SUBMITTED BY THE 7TH RESPONDENT
EXHIBIT	R1(C) COPY OF THE CERTIFICATE DATED
	17.02.2016 ISSUED BY THE INTERNATIONAL
	ASSOCIATION OF ATHLETICS FEDERATIONS

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W.P.(C).No.7262/2020

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	SUBMITTED BY THE 7TH RESPONDENT
EXHIBIT R1(D)	COPY OF THE CERTIFICATE DATED 07.07.2017 ISSUED BY INTERNATIONAL ASSOCIATIONOF ATHLETICS FEDERATIONS SUBMITTED BY THE 8TH RESPONDENT
EXHIBIT R1(E)	COPY OF THE CERTIFICATE DATED 30.12.2018 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS DEDERATIONS SUBMITTED BY THE 8TH RESPONDENT
EXHIBIT R1(F)	COPY OF THE COMPLETION CUM PERFORMANCE CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER, PWD, BIDHANAGAR WEST DIVISION, KOLKATA SUBMITTED BY THE 8TH RESPONDENT
EXHIBIT R1(G)	COPY OF THE CERTIFICATE DATED 01.07.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 9TH RESPONDENT
EXHIBIT R1(H)	COPY OF THE CERTIFICATE DATED 13.08.2019 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 9TH RESPONDENT
EXHIBIT R1(I)	COPY OF THE CERTIFICATE DATED 19.09.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 10TH RESPONDENT
EXHIBIT R1(J)	COPY OF THE CERTIFICATE DATED 13.07.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 10TH RESPONDENT
EXHIBIT R1(K)	COPY OF THE CERTIFICATE DATED 30.03.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE PETITIONER
EXHIBIT R1(L)	COPY OF THE CERTIFICATE DATED 28.05.2013 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE PETITIONER
EXHIBIT R1(M)	COPY OF THE CERTIFICATE DATED 09.02.2015 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE PETITIONER

Converge Sports Infra (Opc) Pvt. Limited v. Union of India

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Converge Sports Infra (Opc) Pvt. Limited v. Union of India

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