Dismissed

Bethlahem Constructions v. Kerala State Electricity Board - Kseb

Kerala HC2 Feb 2022WP(C)/873/2022

Case brief

AI extract

What is this about?

The petitioner challenged the selection of the lowest bidder in a tender for construction work, arguing the bidder failed to upload the Notice Inviting Tenders per tender conditions. The Kerala High Court applied settled law distinguishing essential from ancillary conditions, holding the missing NIT was not an essential condition of eligibility and finding no illegality in the selection.

What the court decided

AI extract

Bethlahem Constructions Vs Kerala State Electricity… — Company and Corporate | 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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WEDNESDAY, THE 2^ND DAY OF FEBRUARY 2022/13TH MAGHA, 1943

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WP(C) NO. 873 OF 2022

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PETITIONER:

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BETHLAHEM CONSTRUCTIONS, REPRESENTED BY DENNEES ABRAHAM, MANAGING PARTNER, T P 47/480F, KADUMKEERIYIL COMMERCIAL COMPLEX, WYNAD ROAD, CHUNGAM, THAMARASSERY, KOZHIKODE-673 586.

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BY ADVS. V.T.MADHAVANUNNI V.A.SATHEESH

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RESPONDENTS:

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1 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY PROJECT MANAGER, OFFICE OF THE PROJECT MANAGER, KERALA STATE ELECTRICITY BOARD LTD., CHEMBUKADAVU III & MARIPUZHA SHEP'S, ENGAPUZHA, PUTHUPPADI POST, KOZHIKODE-673 586.

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2 MAMMAD K., S/O.NOT KNOWN, AGED 48 YEARS, KUPPANATH K ANCHAMMAIL, AMARAMBALAM POST, POOKKOTTUPADAM, MALAPPURAM-679 332.

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BY ADV SHRI.B.PREMOD, SC, KSEB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)No.873/2022

JUDGMENT

Dated this the 2^nd day of February, 2022

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The petitioner is a participant in the tender proceedings published as per Ext.P1 notice inviting e-tenders. The Kerala State Electricity Board Limited invited competitive bids from eligible and well experienced Contractors through online for the work “Construction of Electrical Section Office Building at Puthuppadi” as per Ext.P1 N.I.T. Ultimately, the 2^nd respondent, who was the L1 bidder, was selected for the work. The petitioner challenges the selection of the 2^nd respondent for award of work.

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According to the petitioner, Condition No.7 in Ext.P1 is that the bid shall be submitted in 3 covers online on the e-tender website and manual submission is not acceptable. According to the petitioner, respondent No.2 had not attached the necessary documents along with the

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WP(C)No.873/2022

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online submission and it is a violation of Condition No.7 in Ext.P1.

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The petitioner would further submit that Condition

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No.9 in Ext.P1 provides that the bidder shall upload a complete set of bid documents with NIT and Volume I to IV using his digital signature as a token of acceptance of all bid conditions along with other documents and the absence of complete set of bid documents in the submitted bid shall be treated as non-responsive bid and will be rejected by the Tender Inviting Authority.

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The 2^nd respondent did not upload NIT as required under Condition No.9. Therefore, the bid of the 2^nd respondent should be treated as non-responsive and ought to have been rejected. Respondents 1 and 2 therefore clearly violated Condition Nos. 7 and 9 in Ext.P1. Therefore, the 1^st respondent is compellable to declare that the petitioner is the lowest bidder in respect of Construction of

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WP(C)No.873/2022

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Electrical Section Office Building at Puthuppadi.

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The 1^st respondent filed a statement in the writ petition through the Standing Counsel. The 1^st respondent stated that 14 numbers of bidders participated in the tender. Cover No.1 was opened on 02.12.2021 for verification of the EMD and tender costs remittance and was found okay for all tenders.

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Thereafter, Cover-II of each tender was opened on the same day. It was found that 7 numbers were found improper as they have not fully submitted the bid documents such as their experience certificate, Condition of Bid and technical conditions, etc. along with e-tender. Those bidders were informed over phone, directly to submit the signed copies of lacking documents immediately for verification within the stipulated time.

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On scrutiny of the documents received through e- tender and received directly by the 1^st respondent, all

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WP(C)No.873/2022

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bidders except one have been found to have holding the required experience and have submitted all required documents for prequalification of tender valuation. Accordingly, on 08.12.2021, the Price Bid of accepted tenders were opened. It was thereafter that the 2^nd respondent was awarded the work.

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I have heard the learned counsel for the

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petitioner and the learned Standing Counsel for the 1^st respondent.

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The specific grievance of the petitioner is that the 2^nd respondent did not submit the NIT along with his e-tender. If N.I.T. is not submitted along with e-tender, the bid should be treated as non-responsive and ought to be rejected. According to the petitioner, the NIT is an essential document. The document evidencing willingness of the 2^nd respondent to accept the conditions of bid was not submitted.

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The law in this regard is settled. In Poddar Steel Corporation v. Ganesh Engineering Works [(1991) 3 SCC 273), the Hon'ble Apex Court held that the requirements in tender notice can be classified into two categories those which lay down the essential conditions of eligibility and other which are merely ancillary or subsidiary within the main object to be achieved by the condition. In the first case, the authority issuing the tender may be required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.

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The contention of the petitioner is that when the conditions of tender were not uploaded, it is a serious lacuna rendering the tender non-responsive. It has to be kept in mind that after opening of tenders, the parties will be executing agreement or receiving work orders, by which the tender conditions will be accepted by the parties. In that

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view of the matter, this Court finds that the submission of NIT/conditions of tender is not an essential condition of eligibility enforced by the 1^st respondent.

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It is also to be noted that the petitioner has no case that the 1^st respondent has permitted curing of defects in respect of the lacking documents to the 2^nd respondent alone showing a favour. The pleadings would show that the 1^st respondent granted opportunity to as many as seven bidders to make good deficiency in their documents.

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In the circumstances, this Court finds that there is no illegality or mala fide in the action of the 1^st respondent in processing the tenders. In the circumstances, this Court finds that the writ petition is devoid of merit and it is accordingly dismissed.

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Sd/- N. NAGARESH JUDGE

ncd/03.02.2022

APPENDIX OF WP(C) 873/2022

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PETITIONER'S EXHIBITS

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Exhibit P1	TRUE COPY OF THE INVITATION ISSUED BY THE RESPONDENT NO.1 DATED 01.11.2021.
Exhibit P2	TRUE COPY OF THE PARTNERSHIP DEED DATED 10.02.2010.
Exhibit P3	TRUE COPY OF THE BID INFORMATION OF THE RESPONDENT NO.2 DATED 09.12.2021.
Exhibit P4	TRUE COPY OF THE BIDDER'S DETAILS DATED 08.12.2021.
Exhibit P5	TRUE COPY OF THE LAWYER NOTICE ON BEHALF OF THE PETITIONER TO THE RESPONDENT NO.1 DATED 10.12.2021.
Exhibit P6	TRUE COPY OF THE ACKNOWLEDGMENT OF THE RECEIPT OF THE LAWYER NOTICE DATED 13.12.2021.
ANNEXURE R1A	THE TRUE COPY OF THE LETTER ISSUED BY THE PROJECT MANAGER, DATED 10.12.2021.
ANNEXURE R1B	THE TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 10.12.2021.
ANNEXURE R1C	THE TRUE COPY OF THE WORK ORDER ISSUED TO THE 2ND RESPONDENT ON 28.12.2021.

Bethlahem Constructions v. Kerala State Electricity Board - Kseb

Case brief

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Bethlahem Constructions v. Kerala State Electricity Board - Kseb

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