PGCCPL Vs. KERALA STATE ELECTRICITY BOARD LTD.

JUDGEMENT

(1.) The Kerala State Electricity Board Ltd./second respondent, invited tenders for the execution of Civil and Hydro Mechanical works of Upper Sengulam Hydro Electric Project vide Ext.P1 e-tender notice dtd. 3/5/2022, with the Probable Amount of Contract (PAC) fixed at Rs.175,60,70,410.00. The first petitioner, and respondents 3 and 4 were pre-qualified in the tender and Ext.P4 Note containing the details of the pre-qualified bidders was published on 7/10/2022. The price bids were opened on 10/10/2022 and the third respondent declared as the lowest bidder, as evidenced by Ext.P6, the BOQ summary details. As the petitioners had serious doubts about the third respondent's qualification, the materials submitted by the third respondent in support of its bid was downloaded from the website. A scrutiny of the documents proved the petitioners' suspicion to be correct. It came to light that the third respondent had failed to comply with Clause 26.2.1(c), Clause 3.1.6 and 27.1 of the instructions to the bidders forming part of Ext.P1 Notice Inviting Tender. Hence, this writ petition seeking the following reliefs;

(2.) Senior Advocate Joseph Kodianthara appearing for the petitioners contended that the third respondent having failed to satisfy the mandatory conditions for pre qualification, respondents 1 and 2 ought to have rejected its bid at the pre-qualification stage. As per Clauses 3.1.6 and 27.1.of Ext.P1, the lead bidder of a joint venture consortium should have a turnover of not less than 30% of the probable amount of contract for the last three years.The PAC being Rs.1,75,60,70,410.00,30% of the same would come to Rs.52,68,21,123.00. Going by the balance sheet and profit and loss accounts of M/s.Anchor Structural, Engineers & Contractors, the lead bidder of the third respondent consortium, its turnover for the three financial years preceding the tender is only Rs.47,77,13,533.00.

(3.) In a patently illegal and fraudulent attempt to overcome this defect, the third respondent produced Ext.P8 Asset and Business Operation Transfer Agreement where under the lead member of the consortium agreed to acquire certain assets of a proprietorship concern. In an attempt to lend further support to its claim, the third respondent produced Ext.P9 Chartered Accountant's Certificate dtd. 17/6/2022, wherein the Chartered Accountant included the supposed outcome of Ext.P8 agreement to the turnover of the lead member, so as to make it appear that the lead member had the requisite turnover stipulated in Clause 3.1.6 and 27.1 of Ext.P1.