B.RAJENDRAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a contractor. Pursuant to Ext.P1 notification issued by 2nd respondent on 14.07.2020, inviting tenders for the work "UCR Improvements to Kavalayoor, Thaikkavu- Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC" petitioner submitted his e-tender. In Ext.P2 bid submission confirmation dated 03.08.2020, bid documents included duly filled and signed preliminary agreement also. The date of opening of tender was scheduled on 07.08.2020. Petitioner submits that the tender was opened only on 11.08.2020 and among the five bidders, petitioner bid the lowest amount, quoting a sum of Rs.42,86,650/-. Petitioner submits that the details of tender or other proceedings were not uploaded in the website even as on 28.09.2020 and the status of the tender continue to be "opening in progress" even now. Seeing that petitioner was not invited for executing agreement he approached the 2nd respondent, then he came to know that he had not uploaded the 2nd page of the preliminary agreement along with the tender documents. It is stated that he had given the agreement in stamp paper worth Rs.200/- in 2 pages of Rs.100/- each to the internet cafe, along with all the requisite documents for e-filing; but by oversight they had scanned/sent only the the first page in Rs.100/- stamp paper along with a blank paper. Petitioner submits that he had sent the hard copy of the entire documents, as directed in Ext.P2 notification, without any defect. Immediately on coming to know about this petitioner submitted Ext.P3 representation before the 2nd respondent on 26.09.2020 requesting to permit him to correct the tender document as it is only a minor defect and he had already sent the hard copy. According to the petitioner the 2nd respondent is well within his powers to allow correction of minor defects and the defect in the case of the tender submitted by the petitioner was a minor one which could very well be condoned in accordance with clause 2009.3 of the PWD Manual as revised in 2012 (Ext.P5). The Writ Petition was filed in the aforesaid circumstances seeking a direction to the 2 nd respondent to permit him to cure the defect in filing the bid submitting confirmation in the light of Ext.P5 and to consider his tender.

(2.) The 2nd respondent has filed a counter affidavit stating that the bid was opened on 07.08.2020 itself. It is stated that as per Ext.R2(a) BOQ summary details petitioner, who quoted Rs.42,86,650/- which was 10.47 below the estimate rate, was L1 and one Nahas who quoted Rs. 42,92,869/- was the L2. But on verification of the documents uploaded by him, it was found that the preliminary agreement worth Rs.200/- had not been uploaded and there was only an incomplete agreement with first page alone, in the stamp paper worth Rs.100/- along with a plain paper, uploaded through e-tender portal. Producing Ext.R2(b)-the part of preliminary agreement which was uploaded by the petitioner, the 2nd respondent stated that the defect was not minor which could be allowed to be corrected. It was stated that as per clause 2009 of PWD Manual the bidder or his representative should have been present before the e-tendering authority while opening e- tender. But the petitioner or his representatives were not present and therefore defect could not be intimated at the time. It is sated that after the tabulation of the tender, the Executive Engineer had informed the petitioner regarding the defect through phone. But the petitioner did not respond to the e-tending authority till 26.09.2020. It is stated that in the standard bid document it is clearly specified that "online tenders/Bids are to be accompanied with a preliminary agreement executed in Kerala Stamp Paper worth Rs.200/. Tenders/Bids received online without the details mentioned in clause 4.4 of Part I- Introduction to the bidders, will not be considered and shall be summarily rejected." It is also stated that the petitioner himself has submitted e-tenders and has undertaken various works through the e-tendering system after submitting e-tender, uploading the necessary documents. It is stated that the 2nd respondent received Ext.R2(c) complaint dt.25.8.2020 from one Sri.Nahas-the L2, requesting to reject the tender submitted by petitioner on the ground that he did not upload the preliminary agreement. It is stated that on receipt of the said complaint, in view of the urgency involved, the 2nd respondent had to decide abiding by Clause 2009.2 of the PWD Manual and in accordance with the standard bidding document. The "second lowest quoted bidder" had been selected as the successful bidder and Ext.R2(d) notice was issued rejecting the tender of petitioner and Ext.R2(e) selection notice was issued to Sri.Nahas the 2nd lowest bidder, accepting his offer for Rs.42,86,650/-, in order to protect the interest of the Government. In such circumstances, the e-tendering authority has to consider the next lowest bidder as the successful bidder. It is stated that the petitioner did not approach the e-tendering authority before 26.09.2020 even though he was aware of the incomplete submission of the online bid document. It is also stated that as per clause 4.9 of Ext.R2(f) standard bidding document the petitioner could have resubmitted the tender document in the e-tender before 03.08.2020. It is also the case of the 2nd respondent that Ext.P1 notification as well as the standard bidding document provides that the failure, malfunction or break down of the electronic system while uploading or downloading the document by the bidder during the e- tendering process cannot be the responsibility of the tender inviting authority.

(3.) The petitioner filed a reply affidavit reiterating his contention that bid was opened only on 11.08.2020 and not 07.08.2020 as stated by the 2nd respondent. Pointing out that the status of the tender continued to be stated as pending in the website, as shown in Ext.P9, petitioner stated that the details of bid were not made available by the 2nd respondent. He also stated that the date and time of opening of the bid was available in Ext.P7 which would show that the bid was opened only on 11.08.2020. Petitioner reiterated that the mistake happened at the end of the person in the internet cafe who uploaded the document to the e-tender portal and the said mistake was liable to be condoned when the petitioner had uploaded all the documents in full and submitted the hard copies well within time.