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2022 Supreme(Online)(KER) 66194
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 11 TH DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943 WP(C) NO. 24618 OF 2021 PETITIONER: M/s.RDS PROJECTS LTD., HEAD OFFICE:427, SOMDUTT CHAMBERS-II, 9, BHIKAJI CAMA PLACE, NEW DELHI-110066, REGIONAL OFFICE AT SHIHAB THANGAL ROAD, PANAMPILLY NAGAR, KOCHI-682019.
REPRESENTED BY ITS ASSOCIATE DIRECTOR, MR.AMIT VARGHESE JOSEPH, AGED 30 YEARS, S/O.DR.JOSEPH VARGHESE.
BY ADV SRI.DEEPU THANKAN SRI.UMMUL FIDA SRI.R.RAJANANDINI MENON RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HARBOUR ENGINEERING DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
THE SUPERINTENDING ENGINEER, HARBOUR ENGINEERING NORTH CIRCLE, PUTHIYANIRATH, ELATHUR.P.O,
KOZHIKODE-673001.
PRE-QUALIFICATION COMMITTEE, HARBOUR ENGINEERING DEPARTMENT, REPRESENTED BY CHIEF ENGINEER, PWD ADMINISTRATION, PUBLIC OFFICE, PALAYAM.P.O,
THIRUVANANTHAPURAM-695033.
THE CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT,
THIRUVANANTHAPURAM-695009.
M.A.SHAMEER, PWD CONTRACTOR, MASTHIKUND HOUSE, MULIYAR POST, KASARAGOD-671542.
ADDL.6 SOMAN.C.N, AGED 59 YEARS, S/O.M.N.NARAYANAN NAIR, MUTHIRA KALAYIL HOUSE, MANNARI POST, PAYIPRA-686 673 (IMPLEADED AS PER ORDER DATED 03.12.2021 IN
I.A.No.1/2021 IN W.P.(C)No.24618/2021) BY ADVS.
SRI.SHIRAZ ABDULLA SRI.B.N.SHIVSANKAR SRI.TINTU T.JOSEPH SMT.ARCHANA HARIDAS K. SRI.HOSH P. DAS SRI.K.V.MANOJKUMAR, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 11 th day of February, 2022
The respondents floated Ext.P1 NIT for the work
“Estuary Training Works at Puthiyangadi in Kannur District – Construction of Break waters at Choottad – Palakkod estuary and shore protection works, under the Rebuild Kerala Project.”
2. The petitioner-Company submitted their bid for the work. The petitioner was found not qualified at the pre- qualification stage. It is aggrieved by the act of disqualifying of the petitioner that the petitioner is before this Court seeking to quash Exts.P5 and P6 and to direct respondents 2 to 4 to open the financial bid of the petitioner and award the work to the petitioner, if the petitioner is found to be the lowest bidder.
3. The petitioner submits that pursuant to Ext.P1 NIT,
the petitioner submitted their tenders. The eligibility for participation in the tender is provided in Clause 2 of Ext.P1 NIT. The petitioner satisfied all the eligibility conditions stipulated in Clause 2 of Ext.P1 NIT. The petitioner submitted
Ext.P3 Solvency Certificate evidencing that the petitioner is solvent up to an amount of ₹ 150 Crores. Ext.P4 Auditors Report was also submitted by the petitioner evidencing strong financial background of the petitioner. However, the respondents rejected the tender of the petitioner at the technical stage. Though eight persons participated in the tender, only four were declared qualified.
4. The petitioner submits that the rejection of the tender of the petitioner was for the alleged reason that the bid capacity of the petitioner is negative. The petitioner submits that the petitioner satisfies all the conditions including financial capacity as stipulated in Ext.P1 NIT. The petitioner's solvency is more than 10 times the estimated cost of the work. The respondents have adopted some criteria not disclosed in
Ext.P1 NIT, for evaluating the financial capacity of the bidders. This is highly arbitrary and illegal. The petitioner's financial bid is therefore liable to be considered.
5. Respondents 1 to 4 contested the writ petition. The respondents submitted that it was made clear in Ext.P1 NIT that Government Orders dated 09.06.1999 and 08.03.2017 will be applicable in the bidding process. The said Government Orders provided for a formula for deciding the financial capacity of the bidders. The tendering authority considered the standard bidding documents submitted by the bidders and came to a conclusion that the petitioner’s bid capacity is negative. Respondents 1 to 4 submitted that a standard formula was applied to all bidders for the purpose of assessing their bid capacity. The petitioner has not been subjected to any discrimination. The petitioner, therefore, cannot raise a legal grievance in this regard.
6. The 5 th respondent, who is the lowest bidder in the tendering process, contested the writ petition. The 5 th respondent submitted that the minutes of the Pre-qualification Committee as is available in Ext.R5(a) to Ext.R5(g) would indicate that the Committee considered all aspects of the financial status of the bidders, their experience and all relevant facts. It was after considering the standard bidding documents that respondents 1 to 4 have come to a conclusion that three bidders and the petitioner were not qualified technically. As the 5 th respondent was found to be the lowest bidder among the eligible participants, an agreement was executed by the 5 th respondent. The site of the work was also handed over and the work has already commenced.
7. The additional 6 th respondent also contested the writ petition. The additional 6 th respondent submitted that the petitioner is a Company which is going to be black listed. The procedure for blacklisting the petitioner is over but the final orders are withheld due to inordinate influence exerted by the petitioner.
