K.K. BUILDERS CIVIL ENGINEERING CONTRACTORS REP. BY ITS MANAGING PARTNER K.K. MOHAN DAS S/O K.K. KUNHI RAMAN Vs. STATE OF KARNATAKA REP. BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF PUBLIC WORKS, THE CHIEF ENGINEER KARNATAKA PUBLIC WORKS PORTS A

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 tenderers 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. (3:60 P.M) on 6th September 2008, the tender document of the petitioner was uploaded before the machine logged off automatically. On 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 tenderers 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 tenders vide Annexure E, drastically altering the pre qualifications of the tenderers 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.) FURTHER , learned senior counsel relied on the decision of the learned Single Judge of this Court reported in Sical Logistics Ltd., (Formerly South India Corporation (Agencies) Ltd.,) A Company incorporated under the provisions of The Companies Act, 1956, rep. by its Assistant Vice President (STVD) L. Venkataramani Vs. The Karnataka Power Corporation Ltd., rep. by its Executive Director (Fuels) , South India Corporation Ltd., A Company incorporated under the provisions of The Companies Act, 1956, rep. by its Managing Director and Karamchand Thapar and Bros. (CS) Ltd., A Company incorporated under the provisions of The Companies Act, 1956, rep. by its Managing Director, ILR (2006) KAR 4216 and has taken me through paragraph 31 of the said judgment and pointed out that, the very object and purpose of the Act is to ensure streamlining the procedure of awarding contracts by State and public procurement agencies and the same is regulated by statutory provisions and, unless the procedure is followed strictly in conformity with the Act and Rules, it amounts to violating or giving a go -by to the very object and purpose of streamlining of awarding contracts for procurement of goods and services by public agencies. To further substantiate the principal submission made by learned senior counsel appearing for petitioner, he submitted that, the earlier tender Notification issued has been cancelled on the ground that, no participants/contractors were found eligible and therefore, they were constrained to re -notify the same, but with certain modifications vide Annexure E. However, while re -notifying the fresh tender Notification, the jurisdictional authority has drastically altered/modified the pre -qualification of the tenders only to see that, the petitioner and other similarly situated contractors are eliminated and just to suit the other vested/rival contractors to participate in the tender proceedings. Further, he submitted that, as per the decision taken in the proceedings of the Government of Karnataka, dated 14th October 2008, the Government has modified certain clauses of the Standard Tender Documents (STD) prescribed in the previous Government Order dated 6 August 2005. As per the previous Tender Notification issued, the prescribed KW -4 is applicable to more than Rs. 100 lakhs but less than 10 crores. But as per the fresh tender Notification, the tender is called for a sum of Rs. 22.50 crores and this is a glaring error on the part of the Tendering Issuing Authority prescribing the said eligibility. Further, he submitted that, the respondents have drastically altered the pre qualification of the tender notified at Clause 3.3 as follows: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Existing clause Modified clause - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Equipment capacity: Equipment capacity Each Tenderer should Each tenderer should further demonstrate: further demonstrate: (a) Availability by owning (a) Availability by owning the following key and at least 50% of the critical equipment for this required/specified key work and critical equipment for this work and - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (b) the remaining 50% can be deployed on lease/hire basis for all works provided the relevant documents (commitment agreements etc.) for availability of this work are furnished. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In addition to the above, the respondents have further bifurcated and specified the details of machinery to be owned as SI. Nos. 1 to 13 and the details of machinery to be deployed on lease/hire basis as SI. Nos. 1 to 7. But, it is the specific case of petitioner that, when respondents have specifically stated that the tenderer must own at least 50% of the required/specified key and critical equipments and the remaining 50% to be deployed on lease/hire basis, they must have strictly adhered to 50% of key equipments and 50% of machineries on lease/hire basis plainly and ought not to have bifurcated the machineries required to be owned by tenderer as SI. Nos. 1 to 13 and SI. Nos. 1 to 7, resulting in the petitioner and similarly situated contractors being ineligible to participate in the tender process. The further case of petitioner is that, the said modification is made only to eliminate the petitioner and other similar contractors from participating in the tender proceedings and the reason behind altering the clauses is just to suit the vested/interested persons. The said modification is impermissible and contrary to the very decision taken in the standing committee meeting held on 2nd August 2008 produced at Annexure H along with the rejoinder filed by petitioner to the objections filed by respondents. Therefore, the said gross alteration/modification made in the impugned fresh Tender Notification is impermissible and is contrary to their own decision taken by the highest and apex body of the Department and it is applicable uniformly throughout the State. He further submitted that, if at all, the respondents want to re -notify the tender, by making certain modifications, the same should be made strictly in compliance of Rule 27 of the Rules, 2000. Therefore, he submitted that, taking into consideration the totality of the case on hand, the proceedings initiated for issuing fresh tender Notification cannot be sustained and hence it is liable to be set aside, as stated above.