Courts should refrain from interfering with tender evaluation decisions unless there are clear legal infirmities or arbitrariness in the process.

JUDGMENT :

The captioned writ petitions are filed by two companies, stated to be having decades of experience in general construction industry and specific experience in constructing various types of Water Treatment Plants (WTP), who have participated in the tender invited by the Kerala Water Authority from its registered ‘Class A’ contractors in respect of the works “Construction of Intake well cum Pump house, supplying, Laying, Testing and Commissioning of Raw Water Pumping Main, Construction & Commissioning of 100 MLD Water Treatment Plant and allied structures at Koolimadu, Substations and Allied Electrics at Intake and WTP, Raw Water and Clear Water pumpsets, Supplying, Laying, Testing and Commissioning of M.S. Clear Water Pumping Main from WTP To Reservoir at Thanikkodumala, Clear Water Transmission Main from Reservoir at Thanikkodumala to various Service Reservoirs, Construction of Sump cum Pump House at Kizhakkoth and online Booster Station at Puthuppadi", and “Construction and Commissioning of 100 MLD Water Treatment Plant at Peruvannamuzhi, Floating Intake Structure, Raw Water Pump Sets, Raw Water Pumping Main, Transformers, Substation and Clear Water Transmission Main from WTP to various Reservoirs” respectively.

2. In the tenders, the petitioners did not pre-qualify; however, respondents 5 and 6 qualified. Thereafter, the financial bid was opened and the 5th respondent company became the successful bidder on the basis of the evaluation done by the committee constituted for evaluating the tenders received by the Kerala Water Authority. The evaluation done by the special committee and the consequential order passed by the Superintending Engineer produced as Exhibit P16 and Exhibit P18 (same as Exhibit P16) dated 24.03.2023 and 25.03.2023 respectively in the writ petitions are under challenge. Therefore, I heard them together and proposed to pass this common judgment.

3. The paramount contention advanced by the petitioner in W.P.(C) No.10993 of 2023 is that as per Exhibit P2 tender conditions, the tenderer should be a well established contractor/reputed firm/manufacturer with expertise and capabilities. According to the petitioner, it proved its experience through Exhibits P5 and P6 certificates. The Superintending Engineer, however, disqualified the petitioner stating that the certificates produced convinced him that the work of the Water Treatment Plant completed by the petitioner was not with sludge blanket process. According to the petitioner, the said evaluation of the Superintending Engineer was to help the 5th respondent company by removing a competitive tender against the public interest. It is further submitted that Exhibit P5 certificate issued by the Water Works Engineer, Sangli Miraj Kupwad Municipal Corporation, shows that the petitioner used new modern technology. It is also pointed out that Exhibit P6 certificate issued by the very same authority shows that the petitioner used new modern technology with tube settlers as the Department instructed it as per the site conditions. Therefore, according to the petitioner, Exhibit P6 would show that the petitioner’s experience is in the same field as that of the one prescribed as per Exhibits P1 and P2 notified by the Kerala Water Authority, albeit in a different manner.

4. That apart, it is contended that the experience claimed by the 5th respondent company and Mr. Joseph John, respondent No.6, for the same work done i.e., a 50 MLD capacity Water Treatment Plant with rectangular flat bottom, sledge blanket clariflocculator with plate settler, filter chamber with dual filter and nozzles and SCADA, is not in accordance with the requirements in the Notice Inviting Tenders and therefore, they are not qualified tenderers. That apart, it is contended that clause 7.17.1.2.4 of Exhibit P2 detailed Tender Inviting Notice does not pre-qualify any of the partners of the company individually based on a joint venture experience.

5. It is also contended that if the joint venture