ASOKAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a P.W.D contractor. E-tenders were invited by the Government for construction of Chediyalakkadavu bridge across Mayyazhipuzha in Kozhikode District, on 20.05.2016. Altogether 4 tenders were submitted inclusive of the petitioner and the 5th respondent. Petitioner is the lowest tenderer and the 5th respondent is the 2nd lowest. Even though the 5th respondent is a society, the tender was submitted through the President, the 4th respondent. The tenders submitted by the petitioner and the 5th respondent are produced as Exts.P1 and P2 respectively. It is the contention of the petitioner that, the tender submitted by the 5th respondent is incomplete. So also, as per Ext.P3 Government Order, exemption is granted to the Labour Contract Societies in furnishing EMD and security deposit, and so also, award of contract under certain contingencies mentioned thereunder overlooking the bid submitted by the lowest tenderer. Further, benefits are granted to the 5th respondent as per Ext.P4. According to the petitioner, in view of the incomplete tender and other aspects, the tender submitted by the 5th respondent ought to have been rejected. However, in view of the exemption granted in Exts.P3 and P4 Government Orders, the work will be awarded to the 5th respondent. It is in this background, this writ petition is filed by the petitioner.

(2.) The 5th respondent has filed a detailed statement, refuting the claims and allegations raised by the petitioner. According to the 5th respondent, in Ext.P1 tender document, it is clearly mentioned that, "all other existing conditions related to PQ tender of Kerala PWD will be applicable in this tender also". Therefore, the contention with regard to price preference to the 5th respondent, which is being followed by the Public Works Department while awarding a contract work shall be followed strictly with regard to Ext.P1 tender proceedings. That apart, it is stated that, Ext.P3 is a time tested document and this Court in several decisions upheld the legality and constitutionality of the very same Government Order. Ext.P3 Government Order is known to the petitioner and other contractors who are engaged in the field. But, nowhere in the writ petition or in the pleadings made before this Court, petitioner has taken a contention that Ext.P3 Government Order is not known to him. However, it is submitted that, petitioner in the writ petition is very much aware of Ext.P3 order, and therefore, the defence that the Government Order is not published in the official Gazette is absolutely unsustainable and impermissible.

(3.) In several earlier occasions, petitioner and the 5th respondent society had participated in the tender proceedings and even after the petitioner became the lowest bidder, the work was awarded to the 5th respondent on the strength of Ext.P3 Government Order and the subsequent modified Government Orders. Exts.R5(a) and R5(b) are produced in order to establish the case so put forth by the 5th respondent. Therefore, according to the 5th respondent, the case put forth by the petitioner that the benefits likely to be provided to the 5th respondent are not in accordance with law, is not a legally sustainable ground.