IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32479 of 2007(N)
1. K.R.DINESAN, GOVT.CONTRACTOR,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY ITS SECRETARY
... Respondent
2. THE SUPERINTENDING ENGINEER,
3. PAUL V.THOMAS, GOVT.CONTRACTOR,
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent :SRI.C.A.MAJEED
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :25/03/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 32479 OF 2007 N
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Dated this the 25th day of March, 2008
J U D G M E N T
The prayers in this writ petition are mainly to direct respondents 1
and 2 to award to the petitioner the work of constructing a Regulator-cum-
Bridge at Attappilly Kadavu across Kurumali River, in response to Ext.P6
tender notification, and not to award the said work to the 3rd respondent.
2. Before referring to the facts, a look at the background that led
to Ext.P6 tender notification, as disclosed in the affidavit filed by the 4th
respondent, the Varandarappilly Grama Panchayat is necessary. It is
stated that by Ext.R4(a) dated 18.3.1982, the aforesaid project was
sanctioned, but its implementation got delayed and hence, the beneficiary
Panachayaths viz., Varandarappilly, Kodakara, Mattathur and Thrissur
District Panchayath had passed resolutions requesting for an early
completion of the project. Exts.R4(b) series are the resolutions. On
account of their efforts, finally the Government had sanctioned
construction and Ext.R4(c) estimate was prepared, out of which, Rs.4
crores is being obtained as loan from NABARD. It is their specific case
that if the project is implemented, the distance between Chalakkudy to
Thrissur would be reduced by 30 Kms and that it will be of benefit to 1490
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hectares of agricultural land and lakhs of people, including adivasis. In
essence, what the 4th respondent wants is the immediate implementation
of the project and according to them, if the project is delayed, the funds
sanctioned would lapse.
3. Ext.P6 dated 9.2.2007 is the notice inviting tender for the
work in question. In terms of Ext.P6, the firm period of the offer made
was to be 4 months from the date of opening the tender. The tenders
received were opened on 9.2.2007 and hence, the offers were to remain
firm till 8.6.07. As is disclosed through the statements filed by
respondents 1 and 2, the lowest tenderer M/s Chandragiri Constructions
had withdrawn their tender. The 2nd lowest, M/s Sree Narayana
Constructions, which had quoted 15% above PAC, refused to extend the
firm period or reduce the quoted rate and as a result, their offer also
became invalid. The petitioner, who had quoted 17.01% above PAC was
the 3rd lowest, who was issued Ext.P1 letter dated 10.7.2007, requesting to
extend the firm period for 4 months and also enquiring whether he was
willing to execute the work at 15% above the PAC.
4. It is stated that on 10.7.2007 itself, a letter was issued to the
3rd respondent also requesting to extend the firm period of his offer.
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Though the petitioner has a case that this letter was issued on 10/6/07, it
is clarified in the additional statement dated 25.1.2008 that the letter was
issued only on 10.7.2007. To the letter dated 10.07.2007 received by him,
the petitioner replied by Ext.P4(a) dated 16.7.07, declining to execute the
work at the rate offered in Ext.P1 and requesting to release his EMD. In
Ext.P4(a), the petitioner has also not stated that he was willing to execute
the work even at the rate quoted by him. The statement filed by the
respondents also disclose that while the 3rd respondent agreed to extend
the firm period, the petitioner submitted Ext.R2 dated 25.8.07, seeking
refund of his EMD and that the EMD was accordingly refunded to him on
5.09.2007. With the disappearance of the petitioner from the fray, the
only valid offer available was that of the 3rd respondent, who had quoted
57% above the PAC. It is stated that in the negotiation that followed with
the 3rd respondent, rate for civil work was agreed to be reduced to 55%
and that the rate quoted by him for mechanical work was less than the
estimated rate. Thereafter a proposal was submitted to the Chief Engineer
recommending to accept the offer made by the 3rd respondent.
5. An additional statement is also filed, in which it is stated that
the work was tendered based on 2004 schedule of rates and that
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subsequently, 2007 rates have been introduced, with an escalation of 35%
and going by that standard, the rate now offered by the 3rd respondent is
a viable one, especially in view of the increase in the cost of materials. It
is further contended that once the petitioner has got his EMD refunded, he
has no further claim to be awarded the work and that his motive is only to
get the work re-tendered although he was unwilling to execute the work.
According to the respondents, if the work is to be retendered, that can be
only at 2007 schedule of rates and will result in additional financial burden
to the State.
6. Petitioner submits that coming to know of the efforts to award
the work to the 3rd respondent, he had submitted Exts. P3 and P4 to
respondents 2 and 1, respectively, the receipt of which is denied by the
respondents in the statement filed on 13/11/2007. According to him,
despite the representations thus made by him, since efforts were on to
award the work to the 3rd respondent, this writ petition was filed, with the
prayers mentioned earlier.
7. Respondents 1 and 2 have filed 2 statements about which
reference has already been made earlier. The 3rd respondent has filed a
counter affidavit in which, he would contend that the steps taken by
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respondents 1 and 2 are strictly in compliance with the provisions
contained in the PWD Manual, the relevant portions of which are Exts. P2
and P7. He would also submit that once his EMD has been refunded on a
request made by the petitioner, he has no further claim to be awarded the
work.
8. The point that was urged by the learned counsel for the
petitioner is that in view of the provisions contained in the PWD Manual,
the petitioner was the rightful claimant to be awarded the work. It is
argued that once M/s. Chandragiri Constructions had withdrawn and M/s.
Sree Narayana Constructions had declined to extend the firm period or
reduce their bid amount, petitioner was the lowest bidder, who alone was
eligible to be invited for negotiations. According to him, since the firm
period of his offer had expired on 8/6/2007, his refusal to extend the firm
period in response to Ext.P1 letter dated 10.7.2007, will not make him
ineligible in any manner. Therefore, according to him, the options that
were available to the respondents were that he should have been invited
for negotiations or they should have re-tendered the work.
9. Having considered the submissions made, I am unable to
accept the contentions urged by the counsel for the petitioner. As held by
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the Apex Court in Air India Ltd. v. Kochi International Airport Ltd
(AIR 2000 SC 801) in tender, decisions are guided by commercial
considerations and a Court is expected to interfere with the decision of the
administrative authorities, not on the making of a legal point, but only
when public interest demands such interference. The project in question
was approved in 1982 and after more than a quarter of a century, it has
reached this far and if it is not allowed to go on, even the funds will lapse.
Therefore, unless there are compelling reasons of public interest, this court
will not be justified in upsetting the decision of the authorities.
10. The pleadings in the writ petition show that the petitioner has
not disclosed anything about the EMD that has been got refunded by him.
It is true that with the exit of Chandragiri Constructions and Sree Narayana
Constructions, petitioner was the next lowest bidder. But then, when
Ext.P1 letter was issued asking him to extend the firm period, his reply by
Ext.P4(a) was one of unwillingness to do the work and he demanded that
the EMD should be refunded to him. He did not even offer to do the work
at the rate quoted by him. His request for refund of EMD was reiterated by
him in Ext.R2 dt.25.8.2007 also. Subsequently, the EMD was refunded on
5.9.07. Once EMD has been refunded to him, the petitioner can have no
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further claim to be awarded the work or called for negotiations. The
provisions of the PWD Manual will not improve his case for the reason that
once the petitioner has ceased to be a tenderer by accepting the EMD
refunded, he cannot expect to be invited for negotiations thereafter. It is
obviously because of this, he is now insisting that the respondents should
now go in for re-tender.
11. As already noticed, in none of the communications, has the
petitioner expressed his willingness to execute the work at the rate quoted
by him. In Ext.R3(b), his offer was to do the work at 31.5% above PAC.
Even during the course of hearing, to a pointed querry whether he was
willing to do the work at the quoted rate, quick was his response, in the
negative. Therefore, the idea is not to execute the work but only to force
the authorities to re-tender the work. The delay will certainly be prejudicial
to public interest, since the 2004 schedule of rates, based on which Ext.P6
tender notice was issued, has been revised in 2007, and any re-tender can
only be based on revised schedule of rates, causing additional financial
liability to the State. Further, the funds sanctioned will also lapse.
12. I also do not see anything irregular in negotiating with the 3rd
respondent. Once the petitioner also got his EMD refunded and exited
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from the fray, the only remaining bidder was the 3rd respondent, who had
also kept his offer firm, responding to letter dated 10.7.2007. If that be
so, he is entitled to be called for the negotiations.
I do not find merit in any of the contentions raised and in my view,
the writ petition is only to be dismissed and I do so. There shall be no
order as to costs.
ANTONY DOMINIC,JUDGE.
Rp