G.Somarajan vs. State Of Kerala - Kerala High Court, 15 July 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941 WP(C).No.18349 of 2019 PETITIONER/S: G. SOMARAJAN, AGED 56 YEARS, S/O. GOPALAN, P.W.D.CONTRACTOR, SUNIL BHAVANAM, MUTHUKULAM NORTH, CHEPPAD.P.O., ALAPPUZHA DISTRICT. BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA RESPONDENT/S: 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HARBOUR ENGINEERING DEPARTMENT, SECRETARIAT, THIRUVANANTHPAURAM-695001 2 SUPERINTENDENT ENGINEER, HARBOUR ENGINEERING CENTRAL CIRCLE, ERNAKULAM, KOCHI-682018 *ADDL. R3 WILSON V. PUTHENPURAKKAL, ALUMPEEDIKA P.O., KOLLAM DISTRICT, PIN-690 547. (*ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 15/07/2019 IN IA 01/2019) R1 & R2 BY SRI. B.VINOD, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No.18349 of 2019 2 JUDGMENT This writ petition is filed by a contractor who participated in an e-tender invited by the 2nd respondent, which was not accepted by the 2nd respondent due to the disqualification of not submitting hard copies of the documents in accordance with the stipulations contained in the Notice Inviting Tender. Brief material facts for the disposal of the writ petition are as follows:

Petitioner is a PWD contractor. The 2nd respondent has invited a tender on behalf of the Harbour Engineering Department for upgradation of coastal roads in Alappuzha District - Improvements to Kozhipalam - Chennilathu road in Chettikulangara Grama Panchayat at Kayamkulam L.A. Constituency. The tender was invited through the official website of the Government of Kerala. According to the petitioner, petitioner has quoted the lowest rate. But the online bid was rejected for the reason that he has not submitted hard copies of bid documents before the date fixed for opening of the bid. Therefore, according to the petitioner, the rejection of the lowest bid is unjust and illegal. That apart, it is pointed out that, the State Government has issued Ext.P1 letter

W.P.(C) No.18349 of 2019 3 dated 10.08.2015 along with minutes of a meeting, directing not to insist the mandatory submission of physical documents for verification purposes, since the said practice is defeating the very purpose of e- Tendering which is intended to bring in anonymity in the bidding process. It is based on Ext.P1, the contention is advanced by the petitioner that the rejection of the pre-qualification bid of the petitioner is illegal and arbitrary.

The 2nd respondent has filed a detailed statement, stating that as per the Notice Inviting Tender (NIT), the last date of submission of online tender was on 24.06.2019 up to 6.00 p.m. and the date of submission of hard copy was on or before 27.06.2019 2.00 p.m. It was stipulated in the NIT that e-tenders will be opened on 27.06.2019 at 2.00 p.m. In response to the tender notice, five persons participated in the e-tender, and out of which, 4 bidders submitted their hard copies as per the stipulations contained under the NIT. It is true, petitioner participated in the e- tender process on 22.06.2019, but failed to submit the hard-copies of the documents specified in the NIT within the stipulated time period. During that time, maintenance work of the office building was going on

W.P.(C) No.18349 of 2019 4 and, therefore, there was failure of the computer system/internet/intranet network system and the tenders could not be opened up to 02.07.2019. It is pointed out that, the additional 3rd respondent has submitted the lowest rate among the successful bidders and in order to avoid loss to the Government, office issued a negotiation letter dated 03.07.2019 to the L1 bidder in order to express the willingness to execute the work at the rate quoted by the rejected bidder.

It is also stated that, as per the NIT, it was insisted that hard-copies of Licence, GST payment slip, preliminary agreement and confirmation slip shall be submitted in order to verify the eligibility of the contractor. Hard copy of the preliminary agreement was inevitable to take any legal action against the petitioner in case of failure of executing the agreement with the contractor quoting the lowest rate. However, even though petitioner has submitted the online bid on time, he could not submit the hard-copies within the stipulated period. It is also pointed out that, since there is a mandatory condition incorporated in the NIT to submit the hard-copies, Ext.P1 Government letter issued in the year 2015 will not stand in the way of compliance with the said condition. Moreover,

W.P.(C) No.18349 of 2019 5 petitioner has complied with the stipulations contained in the NIT, uploaded the application and the documents. It is also clear that the petitioner has forwarded the hard-copies by post, but it did not reach before the bid opening as prescribed in the NIT. Therefore, it is submitted that petitioner has not made out any case, justifying interference of this Court, exercising the power of judicial discretion under Article 226 of the Constitution of India.

I have heard respective counsel across the Bar and perused the pleadings and the documents on record.

The sole question emerges for consideration is, whether any manner of interference is warranted to the rejection of the technical bid submitted by the petitioner. It is an admitted fact that petitioner has submitted the online bid within the time period stipulated in the Notice Inviting Tender and has uploaded necessary documents as are prescribed thereunder. However, the hard-copies of the documents that were stipulated to be sent to the 2nd respondent did not reach before the time stipulated in accordance with the NIT. It is also an admitted fact that the hard-copies of the documents have reached only on 29.06.2019. The case put forth by the petitioner is

W.P.(C) No.18349 of 2019 6 that, even though the time period stipulated for receipt of hard-copies was 27.06.2019 2.00 p.m., the tender was opened only on 02.07.2019 and, therefore, the technical bid submitted by the petitioner also could have been opened. But, in my considered view, all the participants in the bid has to be treated equally in accordance with the stipulations contained under the NIT. There were five bidders and out of them, 4 bidders have complied with the stipulations meticulously and scrupulously. But, petitioner could not comply with the same in the matter of submission of hard-copies. Therefore, merely because the tenders could be opened only on 02.07.2019 due to technical snag, that will not inure to the benefit of the petitioner. Moreover, if the technical bid of the petitioner is accepted, it would be clear violation of the stipulations contained under the NIT, which would invite legal action from the side of the bidders who have successfully completed their tendering process. That apart, the directions contained in the minutes of meeting evident from Ext.P1, cannot be comprehended under law, since the documents uploaded will have to be verified physically in order to identify the veracity of the same, which is a vital requirement to find out

W.P.(C) No.18349 of 2019 7 the technically qualified competent bidders. So also, having participated in the bid knowing fully well the conditions to be complied with, and having done so also, petitioner is not at liberty to later turn around and attack the stipulations, since the conditions in the NIT are the rule of the game.

Having assimilated the situations and pros and cons in the matter, I am of the considered opinion that, there is no illegality, arbitrariness or malafides on the part of the tender inviting authority in rejecting the technical bid submitted by the petitioner. Moreover, petitioner has not alleged any malafides against the 2nd respondent in rejecting the technical bid submitted. Upshot of the above

discussion is that, petitioner is not entitled to get any reliefs. The writ petition fails, accordingly it is dismissed. SHAJI P.CHALY JUDGE St/- 17.07.2019

W.P.(C) No.18349 of 2019 8 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE FIRST PAGE OF OFFICIAL WEBSITE FOR E-TENDER ALONG WITH LETTER AND MINUTES OF MEETING PUBLISHED IN THE WEBSITE. EXHIBIT P2OF THE RELEVANT PAGE OF FORM OF TENDER ALONG WITH THE DOCUMENTS SUBMITTED BY THE PETITIONER. EXHIBIT P3OF RELEVANT PAGES OF NOTICE INVITING TENDER NO.09/2019-20/HEECC/E-T/S. EXHIBIT P4OF THE ITEM RATE SUBMITTED BY THE PETITIONER ALONG WITH THE ON LINE BID. EXHIBIT P5OF BID SUBMISSION CONFIRMATION ISSUED TO THE PETITIONER DATED 22.6.2019. EXHIBIT P6OF THE BID ACKNOWLEDGMENT ISSUED TO THE PETITIONER. EXHIBIT P7OF THE CONSIGNMENT TRACKING DETAILS ALONG WITH THE ENDORSEMENT ON ENVELOPE. EXHIBIT P8OF THE TENDER SUMMARY REPORT REJECTING THE PETITIONER'S TENDER ON 02.07.2019. EXHIBIT P9OF THE TENDER REPORT OF TENDER NO.09/2019 -20/HEECC/E-T/S. RESPONDENTS' EXHIBITS: ANNEXURE R2(A)OF THE UPLOADED REGISTRATION CERTIFICATE. ANNEXURE R2(B)OF THE NOTICE INVITING TENDER NO.D3/2018/523/19/HECC DATED 11.06.2019. //// P.S. TO JUDGE St/-