PRECISION INFRATECH LTD. Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER in the above case challenges the pre -qualification of respondents 6 and 7 with reference to a work relating to fabrication, erection and replacement of 52 Nos. of Stainless Steel Ordinary Shutters and Hoisting Mechanism for 1st and 2nd phase for Kuttanad package -Modernisation of SWB (Salt Water Bund) at Thanneermukkam. The tender was invited by the Superintending Engineer (Mechanical), Irrigation, Ernakulam, as per e -tender dated 15/11/2013. The tenders were to be submitted by 05/12/2013. There were three tenderers, petitioner and respondents 6 and 7. The initial scrutiny is to consider the pre -qualification criteria. Ext. P7 is the minutes of the meeting of Pre -qualification Committee of Chief Engineers held on 28/01/2014. It is inter alia observed that the Committee considered the documents of the pre -qualification tenders and decided to pre -qualify the petitioner as they satisfied all the conditions as per the notice inviting tender (NIT). In respect of respondents 6 and 7, it was inter alia stated that since they submitted their documents as a consortium, it was decided to seek legal opinion from the Law Officer regarding the legal validity of awarding works to a Consortium. The Committee discussed the matter in detail and decided to pre -qualify the 6th respondent based on the remarks of the Law Officer. In regard to the 7th respondent, it is observed that since one of the Consortium partner is a foreign company and they had produced an experience certificate of a single work issued by the Ocean County Utility Authority, New Jersey, the Committee decided to pre -qualify the bidder based on the remarks of the Law Officer. The petitioner's contention is that the very pre -qualification of respondents 6 and 7 was bad in law in so far as the respondents had not complied with the pre -qualification criteria by producing necessary documents as is required by a Consortium. Petitioner therefore submitted a representation before the Minister for Water Resources Department on 04/02/2014 inter alia stating the reasons as to why the pre -qualification carried out by the department has to be rejected. According to the petitioner, they alone have pre -qualified for the tender having all necessary experience and financial capability in accordance with the terms of NIT.

(2.) THE main contention urged by the petitioner is that when the Committee decided to pre -qualify them, the Committee did not verify the documents produced by them to ascertain whether it is a proper Consortium formed which could undertake the work relating to the same. As per NIT specific provision had been made to enable a Consortium to submit their bid. Reference is made to Clauses 10.13 and 10.14 to indicate that any Consortium or Joint Venture if they want to participate in the tender have to submit certain documents in accordance with the specific provisions made under the said Clauses. It is inter alia contended that though the matter was referred by the Committee to the Law Officer, the Law Officer did not give any final opinion in regard to the validity or otherwise of the Consortium agreements or the documents produced by them. Whereas the Law Officer had only opined that the Consortium or Joint Venture is permissible. The Law Officer, however, referred the matter relating to the 7th respondent to the Government for a proper decision. It is pointed out that as far as the 6th respondent is concerned, their consortium agreement has several infirmities which were not taken into consideration by the Committee.

(3.) COUNTER affidavit is filed by the 6th respondent inter alia contending that the allegations raised by the petitioners were absolutely false. The Consortium agreement has been executed in terms with Clause 10.14 and 10.15 of Ext. P1, the NIT and after taking into consideration the documents produced, the Committee had pre -qualified the 6th respondent and hence there is no basis for the petitioner to challenge the same as the said decision is not actuated by any arbitrariness or illegality or favouritism as alleged by the petitioner. It is further contended that after pre -qualifying the 6th respondent, the price bid was opened and it was found that the price bid of the 6th respondent was 3.8 % below the Probable Amount of Contract (PAC), that of the petitioner was 13.5% above the PAC and that of the 7th respondent was 1.1% below the PAC. In so far as the 6th respondent is the lowest bidder, a letter dated 06/02/2014 was issued by the 5th respondent calling upon the 6th respondent to carry out the work on the terms and conditions stipulated therein and the 6th respondent was called upon to execute an agreement.