B. Rajendran Pillai vs. State Of Kerala
Original PDF →The PWD Manual is the basic document which outlines the functioning of the Public Works Department. The existing Manual was originally prepared in the year 1972 and since then the structure and functioning methodology of the department have undergone major changes. To keep pace with the contemporary requirement, the Government of Kerala felt the need to update the PWD Manual incorporating the developments in the administrative and engineering fields to enhance skills and efficiency of the department. With this objective Government constituted a Sub-committee vide Government Order read as first paper above for reviewing the preliminary draft of the Manual prepared as part of institutional strengthening of PWD. As per the letter read as 4th paper above the Chief Engineer, KSTP has submitted the final draft of the PWD Manual to Government for approval.
Government have examined the revised PWD Manual in detail and are pleased to order as follows: (i) The revised PWD Manual with the Quality Assurance /Quality Control Manuals for Minor a Medium works and Major works appended to the revised PWD Manual is approved. (ii) The data based on IRC Standards and MORTH specification for road works and CPWD specifications and National Building Code for building works along with PWD schedule of rates revised from time to time will be used for preparing estimates for PWD projects. (iii) The relevant provisions in the PWD Codes and the other Codes will be revised on the basis of the revised PWD Manual.
W.A. 1473/2020 15 (By Order of the Governor) MANOJ JOSHI Secretary to Govt.”
Notification dated 14.07.2020 (Exhibit-P1) published by the 2nd respondent is extracted hereunder: “HARBOUR ENGINEERING DEPARTMENT Office of the Executive Engineer., Harbour Engineering Thiruvananthapuram Division, Vizhinjam No: D4/1717/2020/EE Dated: 14/07/2020 NOTICE INVITING TENDER e- Government Procurement (e-GP) TENDER NO. 07/EE/2020-21/S Dated 14/07/2020 The Executive Engineer, Harbour Engineering Thiruvananthapuram Division, Vizhinjam for and on behalf of the Governor of Kerala invites online bids for the work detailed below from the Registered Bidders of Kerala PWD/Central PWD/Other Central or State Government Departments/State or Central Public Sector Undertakings etc. 1 Name of Work UCR:
Improvements
to Kavalayoor
Thaikkavu
- Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC 2 location of Work Manamboor Panchayat in Attingal LAC 3 Estimated Cost of the Work Rs. 4787762.92/- 4 Brief description of work Tarring Work with CC retaining-wall 5 Bid Security Rs.50000/- 6 Bid submission fee (tender fee) Rs. 2760/- + 18% GST+ 1% KFC 7 Period of completion 6 Months 8 Classification of Bidder Class C And Above 9 Last date and time for submission of bids 03/08/2020 at 6.00 PM 10 Date and time of opening of tender 07/08/2020 at 2.00 PM Bid documents including the Bill of Quantities (BoQ) can be downloaded free of cost from the e-Government Procurement
W.A. 1473/2020 16 (e-GP) Website www.etenderskerala.govin. All bid documents are to be submitted online only and in the designated. cover(s)/ envelope(s) on the e-GP website. Tenders/ bids shall be accepted only through online mode on the e-GP website and no manual submission of the same shall be entertained. Late tenders will not be accepted. A bid submission fee shall be remitted online during the time of bid submission. The hard copies of certificates and documents, as detailed in clause 4.4 of Part-I Instructions to the Bidders, shall be submitted subsequently after online submission of bids in a separate cover by registered post/speed post before the date and time of opening of technical Price Bid shall only be submitted through online. Details regarding remittance of Bid Submission Fee and Bid Security, Bid preparation and submission are mentioned in the bid document. The bids shall be opened online on 07/08/2020 at 2.00 PM at the office of the Executive Engineer, Harbour Engineering, Thiruvananthapuram Division, Vizhinjam, in the presence of the Bidders/their authorised representatives who wish to attend at the above address. If the tender opening date happens to be on a holiday or non-working day due to any other valid reason, the tender opening process will be done on the next working day at the same time and place. Online Tenders/ bids are to be accompanied with a preliminary agreement executed in Kerala stamp paper worth Rs.200/-. Tenders/ bids received online, without the details mentioned in clause 4.4 of Part-1 Instructions to the Bidders will not be considered and shall be summarily rejected. More details can be had from NIT or the Office of the The Executive
Engineer,
Harbour
Engineering Thiruvananthapuram Division, Vizhinjam during working hours. The Tender Inviting Authority/Employer shall not be responsible for any failure, malfunction or breakdown of the electronic system while downloading or uploading the documents by the Bidder during the e-procurement process. Details required for e-payment (Details of bank account having core banking facility and e-mail address of the bidder) shall be furnished along with the tender. Tenders not accompanied by these details will be rejected. All subsequent Government orders connected to tenders and any revision in the rates of taxes would also be applicable to this tender.
W.A. 1473/2020 17 The Executive
Engineer,
Harbour
Engineering Thiruvananthapuram Division, Vizhinjam receives the right to accept or reject any or all tenders without assigning any reason thereof. Sri. G.S. Anilkumar EXECUTIVE ENGINEER Harbour Engineering Thiruvananthapuram Division, Vizhinjam, Thiruvananthapuram For and on behalf of Governor of Kerala”
As per the tender notification (Exhibit-P1) dated 14.07.2020 issued by the 2nd respondent, Online Tenders/bids are to be accompanied with a preliminary agreement executed in Kerala stamp paper worth Rs.200/-, tenders/bids received online, without the details mentioned in clause 4.4 of Part-1 Instructions to the Bidders will not be considered and shall be summarily rejected; the Tender Inviting Authority/Employer shall not be responsible for any failure, malfunction or breakdown of the electronic system while downloading or uploading the documents by the bidder during the e-procurement process; details required for e-payment (Details of bank account having core banking facility and e-mail address of the bidder) shall be furnished along with the tender; tenders not accompanied by these details will be rejected; and all subsequent Government orders connected to tenders and any revision in the rates of taxes would also be applicable to this tender.
Exhibit-P2 is the Bid submission confirmation dated 3.8.2020 submitted through e-tendering system, Government of Kerala.
W.A. 1473/2020 18
Exhibit-R2(c) dated letter dated 25.08.2020 of Mr. Nahas, addressed to the 2nd respondent is extracted hereunder: “To The Executive Engineer, Harbour Engineering Division, Vizhinjam, Trivandrum. Sub:- Tender No.07/EE/2020-21 Ref:- Improvements to Kavalayoor Tahikkavu – Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC. Sir, It is submitted that the preliminary agreement of the lowest quoted tender submitted on 3.8.2020 is incomplete and the same is against the Government orders. Hence, it is requested to reject the same and steps may be taken as per law to allot the tender in my name being the 2nd lowest tender. I am also ready to undertake the work at the rate quoted by the 1st lowest tender. Hence, it is most humbly prayed that steps may be taken to allot the work in my name. Sincerely, A. Nahas.”
Proceedings in Order No.D4-1717/2020 EE dated 18.09.2020 of the Executive Engineer, Harbour Engineering, Trivandrum, [Exhibit-R2(d)], is extracted hereunder: “PROCEEDINGS OF THE EXECUTIVE ENGINEER, HARBOUR ENGINEERING, VIZHINJAM, THIRUVANANTHAPURAM DIVISION (Present: Anil Kumar GS, B. Tech) Order No.D4-1717/2020 EE dated 18.09.2020 Sub:- Harbour Engineering Department- improvement of works of roads in coastal areas of Trivandrum district- improvement of
W.A. 1473/2020 19 work by name Kavalayoor Thaikkavu -Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC. Ref: Tender No:7/EE/2020-2021 S/dated 14.7.2020
For the improvement of the Kavalayoor Thaikkavu - Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC in Trivandrum district, tenders were invited and 5 persons have submitted their tender. However on verification it is found that the person namely Sri. Rajendran Pillai who had quoted the lowest rate had incompletely uploaded the preliminary agreement worth Rs.200/- as mandated in the tender notification. Hence, his tender is cancelled as the same is in violation of the conditions in the tender notification. Executive Engineer To Sri. Rajendran Pillai, 28.9.2020 16470, Pooja, Virunthicode, Attingal.”
Exhibit-P3 representation dated 26.09.2020 submitted by the petitioner to the 2nd respondent reads thus: “From B. Rajendran PiIlai, Government. Contractor, Pooja, near Amar Hospital, Attingal.
Sir, Sub:- UCR Improvements to Kavalayoor Thaikkavu - Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC. Ref:- Tender ID-2020-HD-371772 Tender ref no.07/EE-21/S Tender dated 3.82020. I have submitted tender as per the above tender notification. Total 5 persons have participated in the tender. On verification it is found that my quotation was the lowest, one in
W.A. 1473/2020 20 the tender. I have submitted the tender after complying all the formalities in the tender prior to the last date fixed as 3.8.2020. However till this date, I am not given the selection notice or work order as mandated in the tender notification.
I have come to know that steps have been taken to allot tender to another contractor against law. The above is absolutely illegal and violation of the provisions related to tender. Government as per GO(P) No.13/2012 PWD dated 111012 have clearly stated the details of procedure to be followed regarding the submission and verification of the tenders. (PWD Manual 2009.2-consideration and tabulation of tenders). The above aspect is clarified by the Hon'ble High Court in identical situations by passing appropriate orders (Judgment dated 11.7.2018 in W.P.(C) No.23139/2018).
Hence, it is most humbly prayed that my tender being the lowest quoted tender may be approved and further steps may be taken. Attingal Yours faithfully 26.09.2020 B. Rajendran Pillai”
Exhibit-P5 is the relevant page of PWD Manual Revised Edition, 2012. Exhibit-P6 is the judgment dated 11.07.2019 in W.P.(C) No. 23139 of 2018, wherein the petitioner has already approached the Superintending Engineer with a representation seeking rectification of minor defects in the bid documents. Before the writ court, in that writ petition, the learned Special Government Pleader has submitted that non-submission of standard bid document was not a minor defect which could be rectified by the Superintendent Engineer. He has also submitted that if the petitioner therein submits an undertaking before the 3rd respondent therein, to the effect that he would abide by all the terms of the standard bid document, within a period of five days, his
W.A. 1473/2020 21 bid can also be considered. Recording the said submission of the learned Special Government Pleader, the said writ petition was disposed of.
It is the specific case of the Executive Engineer, Harbour Engineering Thiruvananthapuram Division, respondent No.2 that as per clause 2009 of PWD Manual, while opening the e-tender, the bidder or his representative might be present before the e-tendering authority. But, in the case on hand, neither the petitioner nor his representative were present and hence, the defect could not be intimated at that time. After opening and tabulating the tender, the Executive Engineer, has informed the petitioner regarding the defect identified through phone. But, even after getting this information, the petitioner did not respond to the e-tendering authority till 26.09.2020. Also, in the Standard Bid Document, it was clearly specified that 'Online Tenders/Bids are to be accompanied with a preliminary agreement executed in Kerala Stamp Paper worth Rs.200/-. Tenders/Bids received online without the details mentioned in clause 4.4 of Part I Introduction to the bidders would not be considered and shall be summarily rejected.
Contention of the learned counsel for the appellant that the defects pointed out by the 2nd respondent are minor defects, there was a mistake committed at the internet centre in not uploading the
W.A. 1473/2020 22 remaining pages of the agreement, and when hard copies were given, the 2nd respondent ought to have accepted the bid, cannot be countenanced, for the reason that as per clause 4.4 of the Instructions (Part I), tenders received without the details mentioned in clause 4.4 of Part I instructions to the bidders would be summarily rejected. Said clause also provides for the tender inviting authority shall not be responsible for the failure, malfunction, or breakdown of the electronic system while downloading or uploading the documents by the bidder during the e-procurement process. That apart, clause 2009.2 of the PWD Manual which permits condoning minor defects does not include incorporating part or full of the preliminary agreement. Clause 2009.2 permits to condone only the following defects: a) Omission to sign or include all or any of the plans with tender. b) Failure to produce the original chalan for remittance of E.M.D provided in its place the temporary receipt given from the treasury is produced and the original chalan is produced before the evaluation of tender is completed. c) Omission to total the different appendices. d) Failure to initial all or any of the pages provided he has signed in all the pages containing the rates and in the page in which the tender offer is made.
W.A. 1473/2020 23 e) Failure to write rates in figures against-one or more items of the tender, provided the rates for such items are unambiguously written in words.
Reading of clause 2009 of the PWD manual, makes it clear that the said clause, enables only certain defects enumerated as minor defects can be cured. Defect noticed by tender inviting authority cannot be cured.
On the aspect of alleged negotiation, prima facie, we are of the view that a non-suitor has no right to assail the correctness of the procedure adopted. De hors the same, let us consider what the 2nd lowest bidder Mr. A. Nahas, in his letter Exhibit-R2(c) dated 25.08.2020 addressed to the 2nd respondent – the Executive Engineer, Harbour Engineering Division, Trivandrum, respondent No.2, has stated. Coming to know that the preliminary agreement submitted by the appellant on 3.8.2020, is incomplete, he has requested to cancel the tender and steps may be taken as per law to allot the tender in his name, being the 2nd lowest tenderer. Although, he has undertaken to do the work, at the rate quoted by the appellant.
Indisputably, the tender quoted by the appellant is incomplete with defects, which cannot be cured. Work to be done is improvements to Kavalayoor Thaikkavi-Kavalayoor Kshethram Road in Manamboor Panchayat in Attingal LAC. When the tender quoted by
W.A. 1473/2020 24 the appellant is liable to be rejected, it is not necessary to re-float the tender once again, as it would not only delay the work, for which the tender is floated, but also result in repetition of the whole process.
Giving due consideration to the submission of the learned counsel for the appellant, we are of the view that there is no negotiation, nor we could find that there is no arbitrary or mala fide on the part of the 2nd respondent.
Contention of the appellant is that other tenderers ought to have been given an opportunity, before allotting the work. Being aggrieved by the decision of the tender inviting authority, the appellant has preferred the writ petition. Appellant cannot plead on behalf of the other tenders, as none has come forward to challenge the award of work to the 2nd lowest bidder. In the absence of any challenge, a litigant to the lis being unsuited, cannot be permitted to advance any submission on behalf of others.
Rule of the game has started, in terms of the PWD Manual, coupled with the tender conditions and instructions to the tenderers. When the Manual and tender conditions are mandatory, the same have to be satisfied, failing which, the result is rejection. Writ court has properly considered the rival contentions.
We have gone through the entire materials on record, including the impugned judgment. Giving due consideration to the
W.A. 1473/2020 25 grounds and submissions of the learned counsel for the appellant, we are of the view that the appellant has not made out a case for reversal of the judgment dated 05.11.2020 in W.P.(C) No.20481 of 2020. In the light of the above, this writ appeal is dismissed. S.MANIKUMAR CHIEF JUSTICE SHAJI P.CHALY JUDGE krj //// P.A. TO C.J.
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.