Tender notices must clearly define eligibility criteria to ensure fairness and prevent discrimination among bidders, particularly when involving contractors from different states.

JUDGMENT :

(S. MANU, J.)

The 2^nd Respondent issued notice inviting tender for the work “REBUILD-RKI-Flood 2018 – Renovation of Shutters and Hoisting mechanism of Enamakkal Regulator (Mechanical works)- General Mechanical Work” on 23 January 2024. Bids were invited from “the Registered Bidders of Kerala PWD or from any State or Central Government Engineering Departments which are having similar functionalities like Kerala PWD.” Estimated cost of the work as per the notice is Rs.3,83,88,277/-. Against the column No.8- classification of bidder, in the notice it was specified as “CIVIL-A”. Part I of the standard bid document of the Irrigation Department contains instructions to the bidders. Clause 1.3 deals with eligible bidders. Clause 1.3.1 reads thus:- “A Bidder shall be a registered contractor in Kerala Public Works Department or from any State or Central Government Engineering Departments which are having similar functionalities like Kerala PWD in the required category as specified in the NIT.”

2. Appellant and the 4^th Respondent responded to the notice inviting tender and submitted their bids. The 2^nd Respondent by proceedings dated 27 February 2024 found that the 4^th Respondent is qualified for financial evaluation. Appellant, on 12 February 2024, submitted a representation to the 2^nd Respondent stating that the 4^th Respondent is not qualified in terms of the notice inviting tender and also of Ext.P3 Government Order dated 29 July 2022. Alleging that the 4^th Respondent was not qualified and his bid should have been rejected, the Appellant approached this Court in W.P. (C)No.8273/2024. The 4^th Respondent entered appearance and filed counter affidavit refuting the contentions of the Appellant. The 2^nd Respondent also filed counter affidavit justifying the selection of the 4^th Respondent. The learned Single Judge, after hearing the respective counsel appearing for the parties and the learned Government Pleader dismissed the writ petition by the impugned judgment. Aggrieved by the dismissal of the writ petition Appellant has filed this intra-court appeal.

3. Mr.Jacob Sebastian, the learned counsel for the Appellant contended that the 4^th Respondent was not qualified for the work and the learned Single Judge has not appreciated the contentions of the Appellant in a proper manner. According to the Appellant, the 4^th Respondent submitted the bid as an individual. He is not a contractor registered as 'A' Class contractor in the State of Kerala. He has not executed any work of similar magnitude in the past and does not have required infrastructure or experience to execute a work in the nature of the one tendered. Relying upon the judgment in Municipal Corporation, Ujjain & another v. BVG India Ltd. & others, [(2018) 5 SCC 462] the learned counsel contended that a bidder submitting the bid in individual capacity without any partners, consortium or joint venture cannot rely upon the technical qualification of any third party for satisfying the required qualification. It was argued that the 4^th Respondent has only a Class IV registration in Maharashtra and registration without any classification in Madhya Pradesh. The learned counsel pointed out that the experience certificate submitted by the 4^th Respondent is of a joint venture. It is further submitted that the 4^th Respondent neither has registration as CIVIL-A contractor in the State of Kerala nor does he satisfy the eligibility criteria for category CIVIL-A. The Appellant therefore contends that the 2^nd Respondent has committed grave irregularity by accepting the bid of the 4^th Respondent. According to the Appellant, he being a Class-A contractor satisfying the eligibility criteria ought to have been awarded the work as the 4^t