K.D. GEORGE RESIDING AT PAVANA Vs. GREATER COCHIN DEVELOPMENT AUTHORITY KADAVANTHRA POST OFFICE AND OTHERS

JUDGEMENT

(1.) The petitioner, who is stated to be a Government contractor who had participated in a tender invited by the Greater Cochin Development Authority [GCDA] for the work of fixing the chairs at Jawaharlal Nehru International Stadium in connection with FIFA Under-17 World Cup Foot Ball, is aggrieved by the award of the work to the 3rd respondent. The facts in the writ petition would indicate that, initially, pursuant to Ext.P3 notification, tenders were invited by the 1st respondent for the work aforementioned. The petitioner and the 3rd respondent had submitted their bids in response to the said notification, and the bids were opened on 31.1.2017. While the petitioner's bid was for Rs. 4,18,57,280/-, the 3rd respondent's bid was for Rs. 4,36,03,200/-. The petitioner was thereafter called for a negotiation so as to obtain a better offer from him for the work in question. Responding to the call for negotiation by the 1st respondent, the petitioner, on 7.2.2017, submitted a reduced bid for an amount of Rs. 4,02,04,043/-. It is stated that, pending consideration of the said offer of the petitioner, by Ext.P9 order dated 27.2.2017, the 1st respondent decided not to go ahead with the said tender proceedings, and to re-tender the work. Although the petitioner impugned the decision of the 1st respondent to re-tender the work through W.P.(C).No.7811/2017, the said writ petition was dismissed by Ext.P11 judgment, which affirmed the re-tender proceedings. An appeal carried by the petitioner against Ext.P11 judgment, through W.A.No.546/2017, was also dismissed by Ext.P18 judgment dated 30.3.2017, recording the submission of the 1st respondent authority that the work order, pursuant to the re-tender, was being awarded to the 3rd respondent on the same day. During the pendency of the writ appeal, the petitioner had also submitted his bid in response to the re-tender notification on 13.3.2017. The bids received from the petitioner, the 3rd respondent and the 4th respondent indicated that while the petitioner quoted an amount of Rs. 3,78,98,880/-, the 3rd and 4th respondents quoted Rs. 4,25,07,520/- and Rs. 3,99,98,000/- respectively. Thereafter, on 24.3.2017, the petitioner received an e-mail from the 1st respondent, asking him to submit the Income Tax and Bank statement for the previous five years by 3 p.m. on the same day. It is understood that the e-mail was sent to the 3rd and 4th respondents also. It would appear that the petitioner, who was out of station on the said date, replied to the said mail received from the 1st respondent, by stating the fact that he was out of station, and that it was difficult for him to produce the Income Tax/Bank statement before the deadline of 3 p.m. insisted by the respondent. Through the said mail, the petitioner also sought for an extension of time for production of the said documents. The mail sent by the petitioner did not evoke any response from the 1st respondent, and it is the case of the petitioner that he was therefore led to believe that the time for submission of the documents had expired, and he was no longer in the race for the work in question. The petitioner has produced, as Exts.P16 and P17, details from the website of the 1st respondent, which indicates that the bid of the petitioner as well as the 3rd and 4th respondents were kept alive by the 1st respondent up to 30.3.2017. As already noted, the work was awarded to the 3rd respondent on 27.3.2017, and it is not in dispute that, taking note of the urgency of the work, the 3rd respondent has since completed the work in accordance with the contract entered into with the 1st respondent. The only point urged, at this stage, by the learned senior counsel appearing for the petitioner, is the aspect regarding the fairness meted out to the tenderers by the 1st respondent, while awarding the work to the 3rd respondent. It is the case of the learned senior counsel that, inasmuch as the petitioner was not given any intimation of an extension of the proceedings for finalisation of the tender beyond 3 p.m. on 24.3.2017, he was deprived of an opportunity to furnish the Income Tax/Bank statement, which he could have produced before the first respondent, well before the tender was ultimately finalised in favour of the 3rd respondent.

(2.) A counter affidavit has been filed on behalf of the 3rd respondent, wherein, the sequence of events which led to the award of the contract in favour of the 3rd respondent has been stated. I note from the averments in the said counter affidavit that, while referring to the e-mail received from the petitioner seeking an extension of time for furnishing the financial statements, it is stated that on account of the urgency to finalise the contract, and complete the work before the commencement of the FIFA Under-17 World Cup Football tournament, the 1st respondent did not have the time to respond to the e-mail of the petitioner. It is stated that the 1st respondent decided to cancel the re-tender that was initially contemplated, on 24.3.2017, and negotiated with the 3rd respondent for the purposes of getting a reduced rate for completing the work, and on the 3rd respondent accepting the conditions to do the work at the reduced rate of Rs. 3,78,35,520/-, they proceeded to award the work, pursuant to the negotiated quote, to the 3rd respondent, on 30.3.2017. In the counter affidavit filed on behalf of the 3rd respondent, the averments in the writ petition are vehemently denied, and it is stated that the work awarded to the 3rd respondent was pursuant to a negotiation, where the 3rd respondent had reduced the price at which he would complete the work, and therefore, there was no illegality or arbitrariness in the awarding of contract to him.

(3.) I have heard the learned senior counsel for the petitioner, the learned Standing counsel for respondents 1 and 2 as also the learned counsel for the 3rd respondent. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that, the contract was awarded to the 3rd respondent, and in the absence of a stay against the completion of the work, the contractor has already completed the work in all respects, and therefore, a challenge to the award of the work to the 3rd respondent, at this stage, may not survive. I find force, however, in the contention of the learned senior counsel for the petitioner that the petitioner was not treated fairly in the course of finalisation of the tender proceedings. As already noted, the petitioner had, on 24.3.2017, sought for extension of time for production of the financial statements that were sought from him by the 1st respondent. While, under normal circumstances, the deadline of 3 p.m. that was stipulated by the 1st respondent would have to be strictly adhered to, it is not in dispute that the tender proceedings were delayed by a couple of days before finalisation, since the 1st respondent entered into negotiation with the 3rd respondent for getting reduced rates for the work in question. It is to be noted that, in the instant case, all the tenderers were found to have defaulted on some condition or other and hence, the choice to be made was to be in favour of one among those equally in default. In my view, when the tender proceedings itself were delayed on account of the negotiation entered into with the 3rd respondent, it would have been, in the interests of fairness, for the 1st respondent to also inform the petitioner, who had sought for an extension of time, that if he produced the Income Tax/Bank statements within the extended period of a couple of days before finalisation of the tender, his bid could also be considered along with that of the 3rd respondent for the award of the contract. This not having been done by the 1st respondent, I am of the view that the 1st respondent could not be seen as having treated the participants in the tender process fairly while finalising the tender proceedings. That having been said, I do not find any reason to interfere with the award of the work to the 3rd respondent, as the work in question has already been completed. The writ petition is therefore disposed with the above observations.