ZOOM DEVELOPERS PVT LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE second respondent, a Government of Kerala undertaking, hereinafter referred to as "sponsor", was appointed by the Government of Kerala as the Nodal Agency for development of a modern, all weather, deep-water seaport and container transshipment hub at Vizhinjam in Thiruvananthapuram District, Kerala, with focus on International Container Transshipment on BOOT (Build, Own, Operate and Transfer) basis. The Government of Kerala is the Licensor for that project. The Sponsor accordingly invited proposals from private developers/investors. The third respondent, hereinafter, the "advisor", for short, was appointed the Strategic Advisor for project development, bid process management and selection of developer. M/s. Landt-RAMBOLL Consulting Engineers Limited, in association with ROGGE Marine Consulting GMBH, Germany, RAMBOLL, Denmark and Landt Capital Company Limited were appointed Technical Consultants, having carried out feasibility studies.

(2.) THE petitioner was one among those who submitted proposals in terms of Ext. P1 Request for Proposals. This writ petition is filed seeking a declaration that the stand taken by respondents 1 to 3 treating the proposal submitted by the petitioner's consortium as non-responsive is arbitrary and illegal and violative of Articles 14 and 19 (1) (g) of the Constitution of India. A further direction commanding those respondents to open the technical bid and financial bid submitted by the petitioner and to take steps to award the tender to the consortium which has submitted most competitive bid, is also sought for.

(3.) IN paragraph 9 of the writ petition, it is pleaded that the proposal by the petitioner's consortium consisting of Zoom Developers as the Lead Member, Portia Management Services and Peter Frankel and Partners as members was submitted on 31-1-2008. According to the petitioner, five consortia submitted bids on that day, as is evidenced by Ext. P8. The petitioner contends that the third respondent evaluated the bids submitted by the petitioner and issued Ext. P9 communication making six observations, including that Portia Management Services has signed the consortium agreement on behalf of Peel Ports Limited but Peel Ports Limited is not a member of the consortium and that necessary documentations from various consortium members authorizing the signatories of the different documents have not been submitted along with the bid. It is contended that in terms of the direction contained in Ext. P9, the petitioner collected the documents from the third respondent and as per Ext. P11, the petitioner forwarded the documents enumerated therein and reiterated in paragraph 15 of the writ petition. Thereafter, according to the petitioner, the third respondent had granted time to place further materials as were required, which, according to the petitioner, were provided and hence, the petitioner bona fide believed that in view of the clarifications/supporting documents submitted by it and because the third respondent did not call for any further clarification, the Statement of Qualification of the petitioner's consortium would be found to be substantially responsive to the requirements set forth in the proposal and that the bid submitted by the petitioner would be found to be in order leading to their technical and financial proposals also being opened. The petitioner says that Ext. P24 brought home the information that the fourth respondent has been selected for the work and that the petitioner thereupon had certain discussions with the Minister for Ports in the Government of Kerala and also with different other authorities. The writ petition is hence filed challenging the exclusion of the petitioner's consortium by treating its proposal as non-responsive.