M/S. SINGH ELECTRICALS AND CONSTRUCTIONS Vs. THE MANAGING DIRECTOR CHENNAI METROPOLITAN WATER SUPPL Y AND SEWERAGE BOARD AND ORS.

JUDGEMENT

(1.) Mr. Sathish Parasaran, learned senior counsel for the petitioner, assailing the impugned tender notification No.CNT/WSS/1CB/KfW/DESAL/012/2016-17 floated by the first and second respondents inviting bids for designing and building 150 MLD capacity of Desalination Plant based on Sea Water Reverse Osmosis at Nemmeli, East Coast Road, Chennai with Operation and Maintenance for 20 years, to quash the same with a further direction to the first and second respondents to call for a fresh tender, submitted that the petitioner, being a reputed contractor engaged in the designing and building of water treatment plants, having got huge experience in the said field by executing several projects for the drinking water and sanitation division in Chas, Chattisgarh, drinking water and sanitation division, Hatia project, Ranchi worth several crores of rupees, has been awarded with the contracts by various Government agencies and the said contracts have been successfully completed by the petitioner. The petitioner is also interested in quoting for the tender floated by the respondents to design and build 150 MLD capacity of desalination plant based on sea water reverse osmosis at Nemmeli, East Coast Road, Chennai. While so, when the first respondent has floated the impugned tender for designing and building 150 MLD capacity of desalination plant based on sea water reverse osmosis at Nemmeli, East Coast Road, Chennai stating that the bidding would be conducted in accordance with single stage-two envelope system bidding procedure of KfW and State Government, the respondents fixed the last date for submission of tender at 3.00 PM on 19.1.2017 and the tender was to be opened at 3.30 PM on the same day. It was also stated that initially the complete set of tender documents had to be either purchased by the interested bidders from 10.11.2016 to 18.1.2017 on submission of written application along with payment of a nonrefundable fee of INR 100,000,000 plus VAT 5% or alternatively the complete set of tender documents had to be downloaded from the employer's website.

(2.) When the first and second respondents had extended the last date for filing of tender eight times, the same respondents could have considered and granted one extension in favour of the petitioner, since the system of indirect taxation from Customs and Central Excise Act, Central Sales Tax Act underwent a change to Goods and Services Tax Act and the rates of tax kept fluctuating. In such circumstances alone, the petitioner had raised certain queries with a request to extend the time for submitting the tender. Since the first and second respondents did not grant any extension of time, the petitioner, being interested in taking part in the tender process, filed W.P.No.24672 of 2017 seeking a direction to extend the time for submitting the tender document and this Court passed an order on 14.9.2017 making it clear that the tender process is subject to the result of the writ petition and the said writ petition is also pending. That shows that the petitioner is seriously interested to take part in the tender proceedings. Therefore, the allegation of the respondents that the petitioner waited till 28.8.2017 to purchase the tender document with an intention of delaying the tender process, is nothing but a figment of their imagination. Indeed the petitioner has spent Rs. 1,00,000/- in purchasing the tender document. That also shows the bonafides of the petitioner.

(3.) Mr. Sathish Parasaran, referring to the appointment of the third respondent as a technical consultant for the tender in respect of 400 MLD of desalination plant, has emphatically pleaded that when the first and second respondents have paid a sum of Rs. 14 crores to the third respondent for its technical expertise by entering into a supplementary contract, now the third respondent, after going through all the tender documents submitted by the five companies, has declared all the five selected bidders as non-responsive. When the report of the technical consultant and the evaluation of the technical report recommended to the Board clearly show that they are the ineligible companies, as per the ratio laid down by the Apex Court in Reliance Airport Developers (P) Ltd. v. Airports Authority of India and others, (2006) 10 SCC 1 , the first and second respondents have to either scrap or abandon the process and second to reconduct the tender. Again assailing the stand taken by the first and second respondents in the counter that in the event of meeting fresh tender, few lakhs of rupees would be spent for publishing the tender in the international and national dailies including regional language, it is further pleaded that when the first and second respondents are particular in providing clean and potable water to the general public and the respondents are genuinely interested in awarding the contract to the eligible bidder, the plea of financial damages is only a smoke screen to create sympathy of this Court and there is no justifiable reason for violating Rule 26(2) of the Tamil Nadu Transparency in Tenders Rules, 2000. Concluding his arguments, Mr. Sathish Parasaran went on to contend that Section 15 of the Tamil Nadu Transparency in Tenders Act, 1998 cannot be invoked by the first and second respondents to circumvent Rule 26(2), inasmuch as there is no extraordinary or special circumstance brought on record by the first and second respondents to apply the mischief of Section 15 against the petitioner. A reading of Section 15 shows that the provisions of this Act shall not apply to the extent they are not consistent with the procedure prescribed in the project funded by international agreement.