IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1044 of 2009(Y)
1. A.IBRAHIM KUTTY, GOVERNMENT CONTRACTOR,
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE CHIEF ENGINEERS COMMITTEE FOR
3. THE SUPERINTENDING ENGINEER,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :19/01/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 1044 OF 2009 (Y)
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Dated this the 19th day of January, 2009
J U D G M E N T
The prayer in this writ petition is to quash Ext.P4 and to direct the
respondents to pre qualify the petitioner to participate in the prize bid for
the work notified by Ext.P1.
2. Briefly stated, the facts of the case are that in response to
Ext.P1 notice published by the 3rd respondent inviting Expression of
Interest for the work of “construction of Regulator cum Bridge at
Chamaravattom across Bharathapuzha for 978m with shutters and
approach road for 612m, including mechanical and electrical works with
NABARD assistance”, petitioner submitted Ext.P3 bid. The technical bids
were evaluated by the 2nd respondent Committee, which met on 2/1/2009
and Ext.P4 is the minutes of the meeting of the Committee. It is stated in
Ext.P4 that the petitioner was not pre qualified for the reason that the
audited balance sheet as on 31/3/2008 was not furnished and therefore
the evaluation of the financial capacity of the petitioner was impossible. It
is this decision which is under challenge in this writ petition.
3. Thus, the non production of the audited balance sheet as on
31/3/2008 is the reason for not pre qualifying the petitioner. Going by the
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averments in para 5 of the writ petition itself, it is the admitted case of the
petitioner that the audited balance sheet as on 31/3/2008 was being
prepared by the Chartered Accountant and the petitioner produced the
audited balance sheet only on 8/1/2009 and a copy of which has been
produced as Ext.P5. In the counter affidavit also, it has been stated by
the 1st respondent that the petitioner had not produced the audited
balance sheet for 2007-08 and therefore, it was impossible for the 3rd
respondent to assess the financial capacity of the petitioner.
4. Thus, the question that arises for consideration is whether in
the absence of an audited balance sheet as on 31/3/2008, the decision of
the 2nd respondent as reflected in Ext.P4 calls for interference. The tender
document has been produced by the petitioner as Ext.P3 and in terms of
the conditions specified in Ext.P3, the production of audited balance sheet
and profit and loss account for the past three years is a mandatory
condition. While it is a mandatory condition to produce these documents
and as admitted in para 5 of the writ petition, it has not been produced by
the petitioner, Senior Counsel for the petitioner contended that in terms of
Ext.P2 Government order dated 9/6/99, all that a tenderer need to
produce was only a financial statement and that the same was produced.
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I am not persuaded to accept this submission for reasons more than one.
5. First of all, the obligation of the tenderers to produce
documents has to be decided based on the conditions specified in the
tender document. Going by the tender document, production of audited
balance sheet was a mandatory condition. If that be so, even if there is a
provision to the contrary in Ext.P2 Government order, that will not
exonerate the tenderer from meeting the requirements of the tender
conditions. Even otherwise, going by Clause 9.14(g) of Ext.P2
Government order itself, production of audited balance sheet is a
mandatory condition. Therefore, this contention of the learned counsel for
the petitioner is only to be rejected and I do so.
6. Then, it was contended that audited balance sheet was
produced and that what was produced was not a sealed and certified one
and therefore the decision not to pre qualify the petitioner was unjustified.
This contention also does not deserve acceptance for the reason that
going by the averments in the counter affidavit, which has not been
contradicted by any reply affidavit, audited balance sheet as on 31.3.2008
was not produced at all. That apart, there is no pleading in this writ
petition to the effect that the petitioner had produced audited balance
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sheet and that the only defect was that it was not sealed or certified.
7. Then, it was contended by the Senior Counsel for the
petitioner that Ext.P4 minutes of the meeting of the Committee was
prepared only on 8/1/2009 and that by the time it was prepared, the
petitioner had produced Ext.P5. This again cannot be accepted, for the
reason that there is nothing on record to suggest that Ext.P4 minutes of
the meeting of the committee was prepared only on 8/1/2009 while the
meeting took place on 2/1/2009. Further the argument that Ext.P4 is a
pre dated document also does not find a place anywhere in the pleadings
in the writ petition.
8. Then it was contended by the Senior Counsel for the petitioner
that the petitioner has been discriminated. This plea was raised mainly
referring to Ext.P4. Counsel contended that in the cases of M/s. Patel
Engineering Ltd, M/s.Nagarjuna Construction Company Ltd and M/s IVRCL
Infrastructure and Projects Ltd, tender conditions were relaxed. According
to him, they were permitted to produce documents subsequent to the
tender committee meeting on 2/1/2009 and that petitioner also should
have been given such an opportunity.
9. In so far as M/s.Patel Engineering Ltd is concerned, all that is
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stated in Ext.P4 is that they had produced a power of attorney dated 24th
October 2005 and that the tender committee directed that the 3rd
respondent should verify the power of attorney and confirm that the power
of attorney holder is still an employee of the company. This in my view
does not amount to any relaxation of the tender conditions.
10. In so far as M/s.Nagarjuna Construction company Ltd is
concerned, it is stated in Ext.P4 that their bid was a joint venture one and
the percentage of involvement in the joint venture is to be confirmed by
the 3rd respondent. In so far as this argument raised by the petitioner is
concerned, the submission of the learned Government Pleader is that
going by the tender notice, there was no requirement for the tenderer to
make available documents disclosing their percentage of involvement in
the case of a joint venture. It is stated that it was only an additional
information that the Tender committee wanted to obtain from the
tenderer. As stated by the learned Government Pleader, this was only an
additional information which the tender Committee wanted. If that be so,
the Committee cannot be faulted for calling upon the tenderer to produce
such additional information on the ground it has relaxed the tender
conditions in favour of the aforesaid tenderer.
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11. As far as M/s IVRCL Infrastructure and Projects Ltd is
concerned, Ext.P4 states that the firm has to produce technical bid issued
to them before opening of the financial bid and that the 3rd respondent is
to ensure this. This part of Ext.P4 has been explained in the counter
affidavit. It is stated that in terms of the conditions of the tender, the
Contractor has to submit the bid documents in triplicate including the
original documents. It is stated that M/s.IVRCL Infrastructure and Projects
Ltd has submitted three photocopies of the bid documents with all details
necessary for evaluation of the documents and that only the original
document issued to them was not produced. It is stated that on the basis
of the documents produced by M/s.IVRCL, their eligibility to be pre
qualified was assessed and that the non production of the original
document, which according to them was produced along with the prize
bid, did not vitiate the evaluation process. From the explanation thus
offered by the respondents in the counter affidavit, which has not been
contradicted by any reply affidavit, it can be seen that all that was lacking
in the case of M/s.IVRCL was the original bid document and it is not as
though the IVRCL had not submitted a technical bid at all, as contended by
the Senior Counsel for the petitioner.
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12. In the light of the above factual position, I am not persuaded
to hold that the tender conditions were relaxed in favour of the aforesaid
tenderers. Therefore, the claim of the petitioner that the respondents
having relaxed the tender conditions in the case of the aforesaid
tenderers, should not have rejected his bid for non production of audited
balance sheet lacks substance and is rejected.
13. Admittedly, against the mandatory conditions of the tender,
the petitioner did not produce the audited balance sheet as on 31/3/2008
along with the tender submitted and going by the pleadings in the writ
petition itself, it was produced only on 8/1/2009, which is much after the
evaluation process was over on 2.1.2009. Therefore, even as on 2/1/2009,
the bid was defective and if that be so, Ext.P4 decision taken by the 2nd
respondent on 2.1.2009 not to pre qualify the petitioner deserves to be
upheld.
Writ petition merits only dismissal and I do so.
ANTONY DOMINIC, JUDGE
Rp