Dismissed

B.V.G. India Limited v. State of Kerala

Kerala HC14 Feb 2022WP(C)/568/2022

Case brief

AI extract

What is this about?

The petitioner challenged the cancellation of a tender and subsequent re-tender, having been disqualified due to lack of bid experience. The Court, finding the petitioner failed to prove required experience through proper lead bidder documents, dismissed the writ petition upholding the respondents' action.

What did the court decide?

The writ petition is dismissed; the impugned tender cancellation and re-tender notification are upheld.

B.V.G. India Limited Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2022)

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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 N.NAGARESH

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MONDAY, THE 14^TH DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 WP(C) NO. 568 OF 2022

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PETITIONER:

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B.V.G. INDIA LIMITED,

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HAVING ITS CORPORATE OF OFFICE AT MIDAS TOWER, 4TH FLOOR RAJIV GANDHI INFO TECH PARK, PHASE-1, HINJAWADI PUNE, MAHARASHTRA 411 057 AND REGISTERED OFFICE AT B.V.G HOUSE, PREMIER PLAZA, PUNE, MUMBAI ROAD, CHINCHWAD, PUNE, MAHARASHTRA 411 019, REPRESENTED BY ITS AUTHORIZED SIGNATORY AUBIN JOE, S/O. JOY ABRAHAM, AGED 37 YEARS, RESIDING AT 329,GRA-F-21, MANNAH, GANDHIPURAM, SREEKARIYAM P.O, THIRUVANANTHAPURAM DISTRICT, KERALA-695 017

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BY ADVS. SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SRI.SAMEER M NAIR SRI.V.M.VISHNU MOHAN SMT.GEETHU KRISHNAN SRI.HARSHA SUSAN SAM

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE SMART CITY THIRUVANANTHAPURAM LTD., (SCTL) 4TH FLOOR, FELICITY SQUARE BUILDING, OPP AG'S OFFICE, STATUE, M.G ROAD, THIRUVANANTHAPURAM, KERALA 695 001 REPRESENTED BY REGIONAL MANAGER 3 THE GENERAL MANAGER THE SMART CITY, THIRUVANANTHAPURAM LTD.,(SCTL), 4TH FLOOR, FELICITY SQUARE BUILDING, OPP AG'S OFFICE, STATUE, M.G ROAD, THIRUVANANTHAPURAM, KERALA 695 001

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BY ADVS. K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI, SMART CITY, THIRUVANANTHAPURAM SMT.PARVATHY KOTTOL, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)No.568/2022

JUDGMENT

Dated this the 14^th day of February, 2022

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The petitioner, a Company based at Pune in Maharashtra, is before this Court seeking to quash Ext.P5 cancellation of tender and consequential Ext.P6 re-tender notification.

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The petitioner states that the 2^nd respondent floated notice inviting tenders for the works “design, supply, installation, operation and maintenance of Electro-Mechanical, Car parking system at public office on EPC Mode at Thiruvananthapuram”. The probable amount of contract was ₹10,40,00,000/-. The petitioner states that as per Ext.P3 conditions of tender, the probable amount of contract was ₹10,40,00,000/- and the petitioner quoted around ₹8 Crores. The petitioner was the lowest bidder eligible to be selected.

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WP(C)No.568/2022

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However, to the surprise and predicament of the petitioner, Ext.P2 notification was cancelled with immediate effect. On the same date, the 2^nd respondent floated Ext.P6 tender. In Ext.P6 tender, the probable amount of contract was enhanced to ₹12,48,00,000/-. The petitioner states that the cancellation of the earlier tender and issuance of Ext.P6 NIT for a much higher probable amount of contract was unwarranted. The petitioner contended that the specific purpose for which the 2^nd respondent-Company was incorporated was for the constitution of a special purpose vehicle for the implementation of Smart City Mission.

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As per the details communicated by Ext.P2, the probable amount of contract was ₹10,40,00,000/-. The enhancement of the probable amount of contract is ₹12,48,00,000/-, was unwarranted. The petitioner submitted that the qualification required for the bidders have been relaxed deliberately to exclude fair participation in the tender proceedings.

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WP(C)No.568/2022

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The learned counsel for the petitioner submitted that the petitioner is a Joint Venture. The petitioner was held to be lacking in experience, which is not correct. The petitioner is a Joint Venture and the petitioner is the Lead Bidder. The other partner in the consortium is having only 2% share. The action of the respondents in finding the petitioner as disqualified, cannot stand the scrutiny of law.

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The 2^nd respondent produced Ext.R2(a) experience certificate. Ext.R2(a) related to the experience gained by the junior partner of the petitioner, M/s. Autospatial Private Limited. Ext.R2(a) is the only certificate produced in proof of the experience. The aforesaid M/s. Autospatial Private Limited is neither a bidder nor a lead member. It was under such circumstances that it was decided not to accept the bid of the petitioner.

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I have heard the learned counsel for the petitioner, the learned Government Pleader representing the 1^st respondent and the learned Standing Counsel for the 2^nd and

WP(C)No.568/2022

3^rd respondents .

Ext.R2(b) is the instruction to bidders issued by

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respondents 2 and 3. Clause 2.2.2 (a) of Ext.R2(b) reads as

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follows:

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“2.2.2. Qualification requirements of Bidders:

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(a) Technical Capacity

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(i) “The Bidder or Lead Member of the Consortium should have successfully completed or projects under implementation the similar work(s) as mentioned below within last 5 years ending on 31.08.2021:

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One similar project of 40% value of PAC amount or

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Two similar projects each of 25% value of PAC amount or Three similar projects of each of 15% value of PAC amount

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Similar works means – Automated Multi Level Car Parking

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In case of Consortium, all members should provide their project experience documents and relevant certificates.

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In case of automated multi level car parking project is part of another project, then the completion or ongoing nature of such individual automated multi-level car parking project shall be considered for purposes of experience. The word successfully completed includes virtual completion as well if certified by the client of the bidder.

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The value of PAC amount will be considered upto second decimal point with rounding off to next integer

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value if second decimal point is equal to or more than point 5. The successful completion certification must be submitted from the client with claim of experience.

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ii) The Bidder should submit completion certificate for Central Government / State Government / Municipality, or such Government sector projects. For private sector projects, completion certificate with TDS shall be submitted.”

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As per Clause 2.2.2.(a)(i) of Ext.R2(b) letter inviting Bid, it is evident that the bidder of lead member of consortium should have successfully completed all projects under implementation, the similar projects as mentioned thereunder within the last 5 years.

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It was stated that in case of consortium, all partners should provide a project experience document and related certificates. As against the requirements, the petitioner produced Ext.R2(a) experience certificate. Ext.R2(a) experience certificate would show that the experience projected by the petitioner is that of the junior partner of the Joint Venture. The petitioner did not produce any experience certificate of the petitioner. In the circumstances, respondents

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2 and 3 decided not to accept the bid of the petitioner. The learned counsel for the petitioner pointed out that as per Clause 1.2.1 of Ext.R2(b), the term “Bidder” shall include members of the Joint Venture. Clause 1.2.1 would show that the term “Bidder” will include the members of the Joint Venture only unless repugnant to the context.

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In this case, two issues stare on the face of the bidding. Firstly, the petitioner in the writ petition did not disclose that the petitioner is a Joint Venture, who has responded to the notice inviting tenders. Secondly, the junior partner in the alleged Joint Venture holds only 2% share. The petitioner or the lead bidder did not produce any documents to show that it has experience in the work area. The experience certificate produced is in respect of a junior partner in the alleged Joint Venture, who has only 2% share. It is in the said circumstances, the respondents decided not to entertain the bid of the petitioner.

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In view of the facts stated above, this Court finds

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that the respondents were justified in their action. The petitioner has not made out a case to warrant interference under Article 226 of the Constitution of India. The writ petition fails and it is accordingly dismissed.

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Sd/- N. NAGARESH JUDGE

APPENDIX OF WP(C) 568/2022

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PETITIONER'S EXHIBITS:

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Exhibit P1 A TRUE COPY OF THE RESOLUTION DATED 3012-20121 Exhibit P2 THE TENDER NOTICE DATED 16-09-2021 PUBLISHED UNDER THE NAME OF CHIEF EXECUTIVE OFFICER, SMART CITY, THIRUVANANTHAPURAM LTD Exhibit P3 A TRUE COPY OF THE RELEVANT PAGES OF INSTRUCTION TO BIDDERS DATED 16-09-2021 Exhibit P4 A TRUE COPY OF THE SUMMARY OF THE BID ISSUED FROM THE RESPONDENTS OFFICE Exhibit P5 A TRUE COPY OF THE NOTICE FOR CANCELLATION OF TENDER DATED 18-12-2021 Exhibit P6 A TRUE COPY OF THE NOTICE INVITING TENDER DATED 18-12-2021 Exhibit P7 A TRUE COPY OF THE RELEVANT PAGE OF INSTRUCTION TO BIDDERS ISSUED BY THE RESPONDENT Exhibit P8 TRUE COPY OF THE TECHNICAL EVALUATION SHEET.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R2(a)	TRUE	CO	PY OF		THE EXPER	IENCE
	CERTI	FICATE	S DATED	08.	10.2021 AND	WORK
	ORDER PETIT	DAT IONER	ED 07.0 BEFORE	6.20 THIS	21 SUBMITTE RESPONDENT.	D BY
EXHIBIT R2(b)	TRUE BIDDE (WITH	COPY RS PU OUT AP	OF THE BLISHED PENDIX)	INS BY	TRUCTIONS TO THIS RESPO	THE NDENT
EXHIBIT R2(c)	TRUE	COPY	OF	THE	JOINT BI	DDING
	AGREE	MENT	FOR J	OINT	VENTURE	DATED
	26.10 PETIT	.2021 IONER.	EXECU	TED	BETWEEN	THE

B.V.G. India Limited v. State of Kerala

Case brief

What is this about?

What did the court decide?

B.V.G. India Limited v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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