K K BUILDERS Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) PETITIONER in this petition is a registered firm represented by its Managing partner. Petitioner has sought for a direction, directing the respondents to accept the tender of the petitioner without insisting for compliance of the "revised conditions" prescribed in Section 3 of the revised tender form vide Annexure-E and to declare that, it is impermissible to vary the conditions of pre-qualification to the disadvantage of a bidder, after a tender is submitted and the action of the respondents in so altering is illegal and mala fide and consequently to direct the respondents to consider the tender application of the petitioner, without insisting the compliance of Section 3 of the tender application vide annexure-E issued by the third respondent and to accept the bid offers from petitioner treating him as pre-qualified in accordance with law. Further, petitioner has prayed to pass such other order/orders as this Court deems fit to pass, including the order as to costs, in the interest of justice and equity.

(2.) THE grievance of the petitioner in the instant writ petition is that, petitioner is a registered firm, having its Office at Peravoor, Konanur district, Kerala State and petitioner is an ISO 9001-2000 certified company and a leading Civil Engineering Contractor in Kerala State and also a registered PWD First Class Contractor in Karnataka and is also the contractor for Southern Railway, Kerala, and other Co-operative Sectors, local bodies etc. The third respondent herein has invited the tenders vide annexure-A for execution of the works of Improvement to Konanur -Makutta Road (SH-91) from 78. 26 Kmts. to 94. 76 Kmts. In Virajpet Taluk, kodagu District. The tender process was completely through 'e'-Procurement' as a licensed certifying agency was appointed for governing 'e-procurement' of tenders. The last date for submission of the tenders through internet was 30th August, 2008 which subsequently came to be extended up to 6th September, 2008. Section 3 of the Tender Documents stipulated the pre qualifications of the tenders and on the last date stipulated for submission of tender through internet, petitioner has deposited the necessary Earnest Money Deposit (EMD) of Rs. 22. 50 lakhs and tried to upload the completed tender form in the internet, but could not upload the same. He was asked to come over to Mysore and the petitioner deputed his team of staff for uploading the tender documents. The E-procurement cell directed the petitioner to meet one Mr. Venkat and Mr. Venkat tried to upload the tender form of the petitioner through internet, but, could not succeed in uploading the same. Petitioner has made all sincere efforts to upload, but could not succeed. Therefore, petitioner was constrained to send a fax message to the third respondent vide Annexure-B. However, at 15:59 Hrs. (3:50 P. M.) on 6th September, 2008, the tender document of the petitioner was uploaded before the machine logged off automatically. In 10th September, 2008, petitioner has sent a representation to third respondent, explaining the ordeal and agony he experienced in uploading the tender documents. Be that as it may. Instead of opening the tender immediately after the last date, an E-mail was received by the petitioner from the third respondent vide Annexure-D, informing that, the tenders have been recalled. The reason given for recalling the tender is stated to be that, the tenders did not submit the complete required documents even though the petitioner had submitted his tender along with all the requisite certificates and documents. When things stood thus, the respondents again, invited fresh tenderers vide Annexure-E, drastically altering the pre qualifications of the tenders to the detriment of the petitioner and other similarly situated tenderers, only to suit certain persons' convenience and benefits who are influential enough with the respondents. It is the case of petitioner that, by virtue of the impugned fresh tender Notification, the petitioner and other similarly situated eligible contractors have been deprived of participating in the tender process. The respondents, intentionally and deliberately, in order to make easy way for the other participants/vested/interested persons, without following the due procedure as envisaged under the relevant provisions of the Karnataka Transparency in Public Procurements Act, 1999 read with Karnataka Transparency in public Procurements Rules, 2000, have proceeded to issue the impugned fresh tender Notification. The said action of the respondents is arbitrary, mala fide and against the known principles of tender contract. Therefore, the entire proceedings initiated for issuing the impugned fresh Tender notification by the jurisdictional Competent Authority of the respondent is liable to vitiate, in view of not following the due procedure as envisaged under the relevant provisions of the aforesaid Act. and Rules. Therefore, petitioner is constrained to redress his grievances by presenting the instant writ petition, seeking appropriate reliefs, as stated supra.

(3.) THE principal submission canvassed by learned Senior Counsel appearing for petitioner, at the outset are three-fold. Firstly, that the jurisdictional authority of the respondent-Department has not followed the procedure strictly as envisaged under the relevant provisions of the karnataka Transparency in Public Procurements Act, 1999 ('act' for short)and Karnataka Transparency in Public Procurements Rules, 2000 ('rules' for short ). Secondly, he submitted that, in order to make way or suit certain interested/vested persons' convenience and benefits, who are influential enough with the respondents and deprive the eligible contractors to participate in the tender process, the respondents have modified/altered the requirements/pre-qualification owing to infrastructure to see that, the petitioner and other similarly situated contractors would not be eligible to participate in the tender process. Thirdly, he submitted that, the fresh tender Notification issued by the Competent Authority is contrary to Rule 27 of the Rules 2000. Therefore, he submitted that, in view of non compliance of these three basic requirements, the entire proceedings initiated for issuing fresh tender Notification cannot be sustained and hence, it is liable to be quashed at the threshold itself. To substantiate the said submission, he placed reliance on the judgment of the Apex Court reported in (2007) 8 SCC 1 (Reliance Energy Limited and Another Vs. Maharashtra State Road Development Corporation Limited and Others)and drew my specific attention to paragraphs 36 to 39 and submitted that, the grounds upon which, the administrative action is subjected to control by judicial review are classifiable broadly under three heads, namely illegality, irrationality and procedural impropriety and the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. Further, he drew my specific attention to the operative portion of paragraph 39 of the aforesaid judgment of the Apex Court and submitted that, one of the important principles laid down is that, whenever a norm/benchmark is prescribed in the tender process in order to provide certainty that norm/standard should be clear and 'certainty' is an important aspect of the rule of law.