SINOJ .I.V Vs. STATE OF KERALA

JUDGEMENT

(1.) The Writ Appeal is filed by the Petitioner challenging the judgment of the learned Single Judge in W.P.(C).No.12051 of 2020 dated 10.07.2020,dismissing the Writ Petition. The subject issue relates to invitation of tender as per Ext.P1 notice inviting tender (NIT) dated 20.01.2020 by the Chief Engineer, Public Works Department (PWD), Office of the Project Director, Kerala Road Fund Board, Thiruvananthapuram, for construction of Parakkadavu Bridge Across Manimala River in Pathanamthitta, for a total estimated cost of Rs.7,83,41,245/-. Apparently, the bid was invited in a two bid system, i.e., the technical bid and the financial bid. The technical bid submitted by the appellant was rejected by the tender evaluating authority, which was under challenge in the writ petition. The learned Single Judge after taking into account the rival submissions made across the Bar and the pleadings put forth, has held that the appellant has not made out any case of mala fides or irregularity or any extraneous consideration to interfere with the finding of the technical evaluation done by the committee and therefore, refused to quash Ext.P10 intimation dated 15.06.2020, informing the appellant that the tender submitted by the appellant was rejected during the technical evaluation by the duly constituted committee. The paramount contention advanced by the appellant is that, the tender submitted by the appellant was rejected on the basis of recommendation made by the Chief Engineer(Bridges), who is having personal grudge against the appellant and therefore, the rejection was unfair and vitiated with mala fides and ill motives. It is also submitted that a single person cannot take a decision, particularly when the decision is to be taken by a committee consisting of five members. However, Annexure R1(b) produced along with the statement filed for and on behalf of the respondents would show that the committee neither made any evaluation nor applied its mind, but only followed the recommendation made by the Chief Engineer (Bridges). It is also submitted that the entire action of the respondents are unfair, arbitrary and irrational, especially due to the fact that the Chief Engineer (Bridges) is having personal grudge against the appellant, and naturally he wanted to see that the work is not awarded to the appellant. It is further submitted that, in Ext.P1 notice inviting tender, the sole criteria to be undertaken for pre-qualification to participate in the bid was that the appellant should have successfully completed at least one similar work costing more than 40% of the estimated cost of the work within the last five years, and a certificate to that effect from the executing authority of the completed similar work shall invariably be submitted along with the tender documents, failing which, the tenders will not be accepted. Therefore, according to the appellant, appellant has submitted Ext.P2 certificate of experience issued by the Superintending Engineer (Roads & Bridges), PWD, Thiruvananthapuram, from where it is evident that the appellant has completed successfully the work awarded for the construction of Koorikuzhi bridge across Pallickal River connecting Thazhava Panchayath and Sooranad Panchayath in Kunnathoor constituency, having an estimated cost of Rs.4,64,03,174/-, which would satisfy the requirements to be followed in Ext.P1 notice inviting tender. That apart it is submitted that, though the work was expected to be completed on 07.07.2014, it could be completed only on 20.09.2016, however, the same was not due to any default on the part of the appellant, which would be evident from Annexures AI to AV explanations offered by Superintending Engineer, PWD (Roads & Bridges), Thiruvananthapuram, produced along with I.A.No.1/2020 in the Writ Appeal. It is also submitted that the attempt of the respondents was to favour some other participants in the tender proceedings and the bid submitted by the appellant was the lowest. According to the appellant, since, in earlier tenders participated by the appellant, tenders submitted by the appellant were the lowest, the tender evaluation committee could assume that the tender submitted by the appellant in the tender in question would also be the lowest, and wanted to eliminate the appellant some how or other. Accordingly it is submitted that, the learned Single Judge has not taken into account the relevant aspects and inputs, both legal and factual, before arriving at the conclusion that the decision taken by the tender evaluation committee was in accordance with law and that there are no mala fides, unreasonableness or irrationality in rejecting the technical bid submitted by the appellant.

(2.) In fact, a statement was filed for and on behalf of the 1st and 2nd respondents, i.e., State of Kerala and The Chief Engineer, PWD, Officer of the Project Director, Kerala Road Fund Board, Project Management Unit, Thiruvananthapuram, wherein it is contended that, in the process of evaluation of the technical bid submitted by the participants in the bid, as per Part VI Qualification Information Clause namely, Annexure R1(a), the past performance of the bidders also need to be considered before awarding the contract. Considering the past performance of the appellant it is submitted that, appellant has entered into agreement for two works in Bridges wing each in Kollam and Thiruvananthapuram districts. Appellant has delayed the works due to lack of men and machinery that includes skilled labourers, supervisors etc. The time for completion was extended 4 times, even then the works are not completed till date. It is also pointed out that one work is at the starting point of the Project, monitored by the Chief Minister. As a result, the appellant was disqualified. It is also submitted that, the grounds raised by the appellant that the appellant should have completed only a similar work with 40% of the estimate of tendered work is not either true or correct. Even though such a condition was put forth, it was only a pre-condition for the submission of the technical bid, and by virtue of the evaluation process on the basis of Annexure R1(a), the tender evaluation committee is entitled to take into account other circumstances in order to identify as to whether the appellant would be able to complete the work to the satisfaction of the authority in terms of the notice inviting tender. It is also submitted that, the work pertaining to Ext.P2 experience certificate produced by the appellant to establish that he has satisfactorily completed a similar work as is contemplated in Ext.P1 notice inviting tender, and that there was no delay on the part of the appellant in completing the work, is seriously disputed by the respondents. It is further submitted that the work pertaining to Ext.P2 certificate of experience was extended four times consequent to the extensions sought for by the appellant, which is evident from Annexures 1 to v produced by the appellant himself. That apart, it is submitted that, even though contentions are advanced during the argument that there is mala fides on the part of the Chief Engineer, Public Works Department (Bridges), no such allegation or specific pleading was made in the writ petition, and that except a vague allegation in the appeal memorandum, no pinpointed allegations are put forth to satisfy the contention so advanced by the appellant. It is also pointed out that, The Chief Engineer, Public Works Department (Bridges) is not made a party to the writ petition in person thus enabling him to answer the allegation . It is also submitted that, from Ext.P1 notice inviting tender it is quite evident and clear that, all the bidders are to download the entire details before submitting the bid in a proper manner, so as to carry out the evaluation by the bid evaluation committee in accordance with law and in terms of the bidding documents. Therefore it is submitted that, learned Single Judge has taken into account the entire pros and cons and the legal requirements before arriving at the conclusion in the impugned judgment, and accordingly seeks dismissal of the appeal.

(3.) We have heard learned Senior Counsel for the appellant Dr.K.P.Satheesan, assisted by Adv.Sri.P.Mohandas and learned Senior Government Pleader Sri.K.V.Manojkumar, appearing for respondents 1 and 2, and perused the pleadings and documents on record.