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2018 Supreme(Mad) 660
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. KALYANASUNDARAM, J.
Udhayam Constructions - Petitioner
Versus
The Executive Officer, & Others - Respondents
W.P. No. 71 of 2018 & W.M.P. No. 68 of 2018
Decided On : 09-02-2018
For the Petitioner:K.M. Vijayan, Senior Counsel, for M/s. K.M. Vijayan Associates, Advocates.
For the Respondents:S.T.S. Murthi, Additional Advocate General, Assisted by R.S. Selvam, Government Advocate, V. Shanmuga Sundar, Special Government Pleader, V. Nalliyappan, Advocate.
Compliance with tender conditions, including tax inclusion, and the importance of timely appeals under the Tamil Nadu Transparency in Tenders Act, 1998, Section 11.
Headnote:
Tender - Evaluation of Bid - Tax Inclusion - [Tender] - [Tamil Nadu Transparency in Tenders Act, 1998, Section 11] - The court discussed the tender condition No.12.3, which required the intending tenderers to quote the price inclusive of tax. The petitioner's bid was rejected for not following this condition. The court also referred to the Tamil Nadu Transparency in Tenders Act, 1998, Section 11, which prescribes filing an appeal against the order passed by the Tender Accepting Authority under Section 10 before the Government within a period of 10 days from the date of receipt of the order.
Fact of the Case:
The petitioner sought a Writ of Mandamus to prevent the rejection of their tender and to direct the evaluation of their quote as inclusive of taxes, as per the tender condition No.12.3. The petitioner's bid was rejected, and they filed a Writ Petition seeking direction to open their tender application.
Finding of the Court:
The court found that the petitioner's bid was rejected for not quoting the price inclusive of tax as required by the tender condition. The court also noted that the petitioner failed to participate in the pre-bid meeting to clarify any doubts, and the Writ Petition was filed after the prescribed appeal period under the Tamil Nadu Transparency in Tenders Act, 1998, Section 11.
Issues: The issues involved the rejection of the petitioner's tender bid, compliance with tender conditions, and the timeliness of the Writ Petition filing.
Ratio Decidendi: The court held that the petitioner's bid was rightly rejected for not following the tender condition requiring tax inclusion. The court also emphasized the importance of timely appeals under the Tamil Nadu Transparency in Tenders Act, 1998, Section 11.
Final Decision: The Writ Petition was dismissed, and there was no order as to costs. The court found no merit in the Writ Petition.
1. Heard Mr. K.M. Vijayan, learned Senior Counsel for the petitioner; Mr.S.T.S.Murthi, learned Additional Advocate General, Assisted by Mr.R.S.Selvam, learned Government Advocate for the first respondent; Mr.V.Shanmuga Sundar, learned Special Government Pleader for the respondents 2 and 3 and Mr.V.Nalliyappan, learned counsel for the fourth respondent and perused the records.
2. The petitioner has come forward with the present Writ Petition seeking issuance of Writ of Mandamus, forbearing the first respondent from in any manner rejecting the petitioner's tender and consequently direct the first respondent to evaluate the petitioner's quote as inclusive of taxes as per the tender condition No.12.3 and finalize the tender process, published by the first respondent on 10.11.2017.
3. The case of the petitioner is that the petitioner-firm is a registered contractor. The first respondent invited tender for the purpose of "Upgradation of alternate approach BT Roads, in Velankanni Town Panchayat, Nagapattinam District. As per the tender notification dated 10.11.2017, the last date for submission of the tender was on 15.12.2017 and opening of bids was scheduled on 15.12.2017.
4. According to the petitioner, the petitioner's firm and the fourth respondent participated in the tender process and as per condition No.12.3, the tenderer has to quote the rates inclusive of all duties, taxes and other levies payable under the contract and as per the condition, the petitioner quoted Rs.3,56,90,188/- and the fourth respondent has quoted the value of Rs.3,42,40,000/- without tax and if the tax is included, the value of the fourth respondent would be Rs.3,86,91,200/-. When the petitioner is L1, the first respondent selected the fourth respondent contrary to the tender condition.
5. The learned Senior Counsel for the petitioner contended that the petitioner followed the law and as per the tender condition in Clause 12.3, the petitioner quoted the value including tax, whereas, the fourth respondent has quoted the price less tax, but instead of rejecting the bid of the fourth respondent, now he is awarded with contract.
6. Per contra, the learned Additional Advocate General submitted that the tender was floated on 10.11.2017 and the intending tenderers were permitted to download the tender documents on 20.11.2017. The respondents have conducted a pre-bid meeting on 06.12.2017 in the Office of Velankanni Town Panchayat and as per the tender documents, the tenderers were directed to quote less tax for the reasons that the GST Committee may vary the tax rate. If the petitioner had any doubt or ambiguity, he should have participated in the pre-bid meeting and Clause 12.2, permits corrections by the tenderer. However, the petitioner instead of participating in the pre-bid meeting to clarify the doubts, allowed his tender application to be rejected on 26.12.2017.
7. It is further submitted that the Writ Petition has been filed on 2nd January 2018, seeking direction, forbearing the respondents for rejecting the petitioner's tender. Since the tender form of the petitioner was already rejected on 26.12.2017, the Writ Petition is not maintainable and now the only option available to the petitioner is to challenge the order of the rejection. It is further submitted that the Tender Evaluating Committee has rightly selected the fourth respondent, who has quoted Rs.3,42,40,000/- which is less than 10.88% of the estimated value and after approval by the Authorities, the work order was issued on 03.01.2018.
8. The learned Additional Advocate General further submitted that the Ministry of Urban Development, Government of India have chosen 12 cities in India for the purpose of implementing the scheme of "Heritage Development Augmentation Yojana" [HRIDAY] Phase II Fund 2017-18". Velankanni and Kancheepuram in the State of Tamil Nadu were selected for the said purpose and the fund has to be utilized before March 2018, otherwise, the funds alloted by the Government wo
