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2021 Supreme(Ker) 106
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J.
N.K.Nehru Babu, S/o.M.K.Kochunni - Appellant
Versus
The Kerala Tourism Development Corporation Ltd. - Respondent
WP(C).No.4403 of 2021(A)
Decided on : 18-03-2021
Advocate Appeared:
For the Appellant : SRI.DINESH R.SHENOY, SRI.EBIN MATHEW, SRI.P.ROHIT PREMANANDAN SHENOY
For the Respondent: SHRI.P.A.AHAMED, SRI.THOUFEEK AHAMED, SCWRIT PETITION (CIVIL)
Point of Law: Tender and Bidders - supplying manpower for cleaning and other utility services – Termination of contract - 14. Clauses 7 and 8 of Ext.P2 terms and conditions of the tender provide that the bidders should have a minimum annual turnover of Rs.10 Crores and should attach experience for carrying out similar works or having a minimum yearly gross billing of Rs.10 Crores during the preceding three financial years, out of which at least one single work should be of a minimum gross billing of Rs.50 lakhs. It has been further stipulated that details of such job done/on hand shall be stated in the offer and authentic proof thereof furnished. It has been specifically mentioned that the offer without complete details is liable to be rejected.
Headnote:
Tender – Notification - Technical bid - Business of manpower supply for cleaning and other utility services to various organisations - Seeks to set aside letter of 1st respondent and the award of tender in favour of 2nd respondent - Certain other incidental reliefs are also sought for - Petitioner also participated in tender and submitted bid - Requested documents were also submitted - Petitioner submitted a representation seeking permission to produce GST returns for year 2019-20 - But, he was issued with letter dated stating that technical bid of petitioner has been rejected since turnover of petitioner for the year 2016-17 was less than ?10 Crores –
Finding of the court: It is an admitted position that for year 2016-'17, petitioner produced gross billing of ?8,74,97,460/- only - Argument of petitioner that records maintained by 1st respondent would have disclosed that petitioner had turnover of more than ?10 Crores, cannot be accepted - When submission of documents along with bid is made mandatory, it is not open to petitioner to state that 1st respondent ought to have gathered information from other sources - This Court do not find any ambiguity in tender notification or in terms and conditions mentioned therein - In circumstances, this Court is of opinion that respondents were justified in rejecting technical bid of petitioner - Court opinion that though agreement was for a period of one year, 1st respondent was entitled to terminate contract earlier under terms of agreement, when a new agency is appointed. There is no ambiguity or conflict in the terms of the contract.
Result: Writ petition dismissed.
JUDGMENT :
The petitioner is in the business of manpower supply for cleaning and other utility services to various organisations. In this writ petition, the petitioner seeks to set aside Ext.P16 letter of the 1st respondent and the award of tender in favour of the 2nd respondent. Certain other incidental reliefs are also sought for.
2. The petitioner would submit that the petitioner was supplying manpower for cleaning and other utility services to the 1st respondent-Kerala Tourism Development Corporation Limited at its Head Office, Regional Offices and other units since 2016 under agreements, the last of which was entered into on 25.07.2019.
3. On 28.12.2020, the 1st respondent floated Ext.P2 tender. The petitioner states that unnecessarily the EMD was doubled and onerous clauses were added, stipulating a minimum turnover of Rs.10 Crores in the same field, for three years. Earlier, it was Rs.50 lakhs. A condition was stipulated that documentary proof for all the three years is to be compulsorily produced. This onerous condition was added with a view to exclude contractors from participating in the tender process. Due to this onerous condition, six out of the eight bidders were disqualified.
4. The petitioner also participated in the tender and submitted Ext.P3 bid on 13.01.2021. Requested documents were also submitted. On 01.02.2021, the petitioner submitted a representation seeking permission to produce GST returns for the year 2019-20. But, he was issued with Ext.P15 letter dated 08.02.2021 stating that the technical bid of the petitioner has been rejected since the turnover of the petitioner for the year 2016-17 was less than Rs.10 Crores. On 13.02.2021, the petitioner was served with Ext.P16 letter stating that the petitioner's contract has been concluded with effect from 20.02.2021.
5. The petitioner challenges the action of the 1st respondent primarily on two counts. According to the petitioner, the petitioner satisfied the condition as to gross turnover. The petitioner had more than Rs.10 Crores turnover for the financial years 2017-18, 2018-19 and 2019-20. However, his office had produced Trading, Profit and Loss Accounts Exts.P7 to P9 for the financial years 2016-17, 2017-18 and 2018-19 respectively. As the GST return printout for the year 2019-20 was not available, the petitioner could not produce the same. The petitioner stated that during the financial year 2019-20, the petitioner had more than Rs.13 Crores turnover.
6. The petitioner would submit that there was confusion regarding what constitutes authentic proof and which are the preceding three years. The petitioner had produced Certificates issued by his Chartered Accountant. There was no clarity as to which are the three preceding years. If the preceding years are 2017-18 to 2019-20, the petitioner had Rs.10 Crores turnover each year. The petitioner had sought time to produce GST returns, which was not granted. Ext.P3 format provided by the 1st respondent did not call for specific documents.
7. As regards Ext.P16 communication concluding the existing contract with the petitioner with effect from 20.02.2021, the learned counsel for the petitioner argued that the petitioner ought to have been given one month notice prior to the termination of the existing contract. The existing contract had validity up to 20.05.2020 and hence abrupt conclusion of the existing contract and that too without giving one month's notice, cannot stand the scrutiny of law. Ext.P16 letter is therefore liable to be set aside and the petitioner should be permitted to continue with the contract.
8. The 1st respondent contested the writ petition filing counter affidavit wherein it is stated that as per the agreement dated 25.07.2019 executed with the petitioner, the contract will be with effect from 21.05.2019 and it will be in existence till a new agency is appointed. The agreement can be renewed for a further period on the same terms and conditions. As the 1st respondent was at liberty to appoint
