Atc Telecom Tower Corporation Infrastructure Private Limited vs. Kerala State Warehousing Corporation - Kerala High Court, 29 May 2018

Heard together (2 matters)

WA No. 1342/18

WP(C) No. 16320/18

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 29TH DAY OF MAY 2018 / 8TH JYAISHTA, 1940 WP(C).No. 16320 of 2018 ---------------- PETITIONER(S) ------------- * ATC TELECOM TOWER CORPORATION INFRASTRUCTURE PRIVATE (CORRECTED) LIMITED , REPRESENTED BY IT SENIOR MANAGER (LEGAL) BABU PATTATHANAM, ATC HOUSE, 65/1826-28, CHERAMANGALATH HOUSE, SHENOY ROAD, KALOOR, ERNAKULAM-682 017. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM. RESPONDENT(S): -------------- 1. KERALA STATE WAREHOUSING CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, WAREHOUSING CORPORATION ROAD, ERNAKULAM, KOCHI-682 016. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 BY ADV. SRI.MAJNU KOMATH, SC. R2 BY SR. GOVT. PLEADER SRI.P.M. MANOJ. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. 01/06/2018. *The name of the Petitioner Company is corrected as 'ATC Telecom Infrastructure Private Limited' instead of “ATC Telecom Tower Corporation Infrastructure Private Limited” As per order dated 06/07/2018 in IA No. 778/18 in WA No. 1342/18 against the judgment dated 29/05/2018 in WP(C) No. 16320/18(L). Sd/- Assistant Registrar WP(C).No. 16320 of 2018 (L) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE TENDER NOTIFICATION ISSUED BY THE 1ST RESPONDENT DATED NIL. EXHIBIT P2 TRUE COPY OF THE PROPOSAL SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 29.03.2017. EXHIBIT P3 TRUE COPY OF THE TENDER NOTIFICATION ISSUED BY THE 1ST RESPONDENT DATED NIL. EXHIBIT P4 TRUE COPY OF THE PROPOSAL SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 26.10.2017. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 17.11.2017. EXHIBIT P5(A) TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 17.11.2017. EXHIBIT P6 TRUE COPY OF THE TENDER NOTIFICATION ISSUED BY THE 1ST RESPONDENT DATED 23.02.2018. EXHIBIT P7 TRUE COPY OF THE NOTICE INVITING E-TENDER ISSUED BY THE 1ST RESPONDENT DATED 26.04.2018. EXHIBIT P8 TRUE COPY OF THE PROPOSAL SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 10.05.2018. EXHIBIT P8(A) TRUE COPY OF LIST OF 40 LOCATIONS QUOTED SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED NIL. EXHIBIT P8(B) TRUE COPY OF THE STATEMENT OF 40 LOCATIONS QUOTED SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 10.05.2018. EXHIBIT P9 TRUE COPY OF THE E-MAIL COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 18.05.2018. EXHIBIT P10 TRUE COPY OF THE TECHNICAL EVALUATION STATEMENT ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 17.05.2018. EXHIBIT P11 TRUE COPY OF THE RATE OF COMPARISON CHART OF THE 10 LOCATIONS FOR WHICH THE PETITIONER HAS QUOTED THE HIGHEST PRICE DATED NIL. RESPONDENT'S EXHIBITS: EXT.R1A COPY OF THE TENDER DETAILS DATED 28/04/2018. //TRUE COPY// P.S. TO JUDGE rs. 01/06/2018. SHAJI P. CHALY, J. -------------------------------------------------- W.P.(C) No.16320 of 2018 ----------------------------------------------- Dated this the 29th day of May, 2018

JUDGMENT This writ petition is filed by the petitioner seeking to quash Exts.P9 and P10 communications issued by the 1st respondent dated 18.05.2018 and 17.05.2018, whereby the technical bid submitted by the petitioner was rejected. Material facts for the disposal of the writ petition are as follows:

Petitioner is a Private Limited company and licensed infrastructure provider for telecommunication service providers. First respondent, an instrumentality of the State, has invited tenders as per Exts.P6 and P7 dated 23.02.2018 and 26.04.2018 inviting quotations from Telecom Infrastructure Provider companies for installation of Telecom Monopole/Tower at 56 locations of the 1st respondent across the State. The invitation of tender was by way of two bid system. Petitioner submitted Technical Bid as well as the Financial Bid in separate covers as is provided under the notification. But the Technical Bid submitted by the petitioner was rejected as per Exts.P9 and P10 on the ground that, the general conditions of contract were not signed by the petitioner and that petitioner has quoted the rates in the Technical Bid.

According to the petitioner, consequent to Ext.P6 notification, a pre-bid meeting was convened and the participant raised certain queries for which no proper or clear reply could be given by the officials of the 1st respondent. It is also submitted that, the 1st respondent appears to have decided that the tender process pursuant to Ext.P6 notification would stand cancelled. It is also the case of the petitioner that, as per Ext.P7 tender notice, every tenderer should quote for a minimum of 40 locations. As per Ext.P7, the technical bid is to be submitted appended with the seven documents prescribed thereunder. The sum and substance of the contention advanced by the learned counsel for the petitioner is that, petitioner has complied with all requirements that are contemplated under Ext.P7, and there was no requirement therein for signing the general conditions of contract. It is also explained that, since there is a condition in Ext.P7 to quote for minimum 40 locations out of 56 locations alone, petitioner has quoted the price in the technical bid submitted. Therefore, according to the petitioner, the rejection of the tender of the petitioner is without assigning any proper reason, and therefore, arbitrary and illegal.

A statement is filed for and on behalf of the 1st respondent. Among other contentions, it is submitted that, in Ext.P7, it is clearly stipulated, how to make the technical bid. It is also stated in Ext.P7 that the price bid will be opened only if the tenderer qualified with the terms and conditions prescribed in the technical bid. In the technical bid, petitioner ought to have accepted the general conditions by signing the acceptance of all the conditions to enable him to qualify in the technical bid. Since the petitioner has not done so, the tender submitted by the petitioner is incomplete. It is further stated that, the contention that there was no such condition for signing the general conditions of contract cannot be sustained, since the tender details have been uploaded in the portal, evident from Ext.R1(a). It is also stated that, petitioner submitted a combined bid and in the technical bid, petitioner has quoted the price, and therefore, the secrecy expected to be maintained in accordance with the two bid system has lost its relevance.

A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition, and explaining that petitioner has quoted the price in the technical bid in accordance with the stipulations contained under Ext.P7. 6. I have heard learned counsel for the petitioner, learned Standing Counsel for the 1st respondent and the learned Senior Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties.

The sole question to be considered is, whether any manner of interference is warranted to Exts.P9 and P10 orders of the 1st respondent. To consider the said issue, the requirements that are specified for technical bid in Ext.P7 are relevant, which read thus: “Terms & conditions: I. Technical Bid

A brief history of the company with experience of minimum 2 years.

Copy of IP Registration Certificate/Service Providers license.

A statement showing total number of locations quoted.

An E.M.D of Rs.3 lakhs is to be remitted by way of D.D. in favour of Managing Director, KSWC, Kochi-16. The EMD of the rejected tenderers will be refunded at once.

Should quote for minimum 40 locations out of 56 locations (list to be attached).

Scanned copy of PAN.

Scanned copy of GST.”

It is evident from the terms and conditions for technical bid, stipulating the petitioner to make a statement showing the total number of locations quoted, as per condition No.

Condition No.5 mandates that a bidder should quote for minimum 40 locations out of 56 locations (list to be attached). Therefore, according to the petitioner, in accordance with the requirement contained under Sl.No.5, petitioner has quoted the price. The said contention advanced is stoutly opposed by learned Standing Counsel for the 1st respondent. According to the learned Standing Counsel, since such a course was adopted by the petitioner, the two bid system has lost its relevance and the price quoted by the petitioner was revealed. Petitioner was expected to quote the price in the price bid and nowhere else.

Having evaluated the said situation, I am of the considered opinion that, petitioner has no case that petitioner is a bidder participating in a bid for the first time. Going by the tenor and terms of the pleadings, it is evident that, petitioner is a seasoned contractor, who is well versed with the parameters to be adopted in a two bid system. Moreover, from the conditions made for the technical bid, it is clear that, petitioner was expected to produce a list of 40 locations out of 56 locations. Therefore, in my considered opinion, the price quoted by the petitioner along with the technical bid is a clear violation of the terms and conditions of Ext.P7. 10. Yet another contention advanced by the petitioner is that, there was no condition incorporated under the terms and conditions of the technical bid that the general conditions of contract should be signed. However, the clause contained under Ext.P7 that “all other existing conditions related to e-tendering of Kerala will be applicable in this tender also. The Kerala State Warehousing Corporation will not be responsible for any error like missing of schedule data etc. while downloading by the bidder”. The said condition when read along with Ext.R1(a), it is evident that, petitioner was bound to sign the general conditions showing the acceptance of all the conditions.

11.

On evaluating the pros and cons and the facts and figures projected by the respective parties, it is evident that, petitioner has not made out any case of illegality, arbitrariness, unfairness or malafides on the part of the respondents in rejecting the technical bid submitted by the petitioner. Resultantly, writ petition fails, accordingly it is dismissed. SHAJI P. CHALY JUDGE St/- 31.05.2018