Sini Beny vs. The Cochin Shipyard Limited
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Heard together (2 matters)
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Cause title — parties, addresses and appearances
JUDGMENT Antony Dominic, C.J. The Cochin Shipyard Limited issued Ext.P1 tender notice inviting tenders for running the CSL-ISRF Canteen for a period of one year. The appellant and the third respondent were two bidders out of the four bids that were received in response to the notice. All the four were pre-qualifed. When the price bids were opened, the bid submitted by the third respondent was found to be the least. It was at that stage, the appellant filed the writ petition contending inter alia that the bid submitted by the third respondent did not satisfy the tender conditions and that she was not eligible to be pre- qualified. It was also contended that the price quoted by the third respondent was exclusive of GST and that therefore, in that respect also, there is non-compliance with the tender -2- conditions. By the judgment under appeal, the learned single Judge repelled both the contentions and the writ petition was dismissed. It is aggrieved by this judgment, this appeal is filed.
We heard the learned counsel for the appellant and Sri.Saji Varghese, the learned counsel appearing for respondents 1 and 2. Despite service of notice, there is no appearance or representation on behalf of respondents 3 to
At the time of hearing of this appeal, considering the nature of the contentions raised by the learned counsel for the appellant, we had directed the learned counsel appearing for respondents 1 and 2 to produce the relevant files of the first respondent to satisfy ourselves that the bid submitted by the third respondent satisfied the tender conditions. Accordingly, the files were produced and we have perused the same. On a perusal of the files, we found that the Experience Certificate produced by the third respondent -3- along with her technical bid was one issued by the Deputy Traffic Manager of the Cochin Port Trust in his capacity as the Convener of the Canteen Committee. This Certificate reads thus: “No.A4/F(23)/Canteen/2017/T 20th October 2017
EXPERIENCE CERTIFICATE This is to certify that Mrs. Rajani Aravindan, Convenor, Community Development Society, C/o Kudumshree, Ernakulam west, had been the contractor for Cochin Port's Ernakulam Wharf Canteen from 2011 to 2015. The functioning of the canteen was satisfactorily except for non- compliance of ESI Act's provision for the canteen workers ESI Authorities have initiated proceedings in this regard against Smt.Rajani Aravindan being the direct employer and Cochin Port being the Principal Employer. This certificate is issued as per her request for the purpose of submitting in a tender process. W/Island Dy. Traffic Manager 20/10/2017 Canteen Committee Convenor”
The Certificate was produced in compliance with Clause 2(ii) of Ext.P1 tender notice and the relevant Clause from the tender notice reads as under: "ii.The tender must have experience in running canteen for Govt./Public Sector Units/Ports etc. or any other reputed organization having -4- strength of not less than 200 employees/workers at least for two years on their own during the five calendar years from 2012. The tenderer should submit experience certificate duly attested by a Gazetted officer from the previous employer/ organization along with the tender documents and original of the certificate shall be produced during agreement execution. The experience certificate should include the number of employees/workers
employed
by the organization, the period of contract of the tenderer and the major items served for food in the canteen during the period. If the experience certificate is not available, valid documentary proof like self attested agreement executed or work order issued by the organization, copy of chellan remitted towards EPF, ESI etc. along with a declaration by the bidder shall be submitted along with bid to substantiate the minimum two years experience in running the canteen.”
A reading of this provision shows that the Certificate produced by the tenderer should be attested by a Gazetted Officer from the previous employer/Organization. The Certificate should also include the number of employees/workers employed by the Organization, period of contract of the tender and the major items served for food in the canteen during the period. Insofar as the aforesaid -5- Certificate produced by the third respondent is concerned, since that Certificate is in original, the requirement of attestation does not arise. However, neither does the Certificate mention the number of employees/workers employed in the Cochin Port Trust nor the major items served for food in the canteen during the period. This, therefore, shows that the certificate produced by the third respondent did not satisfy the specification of clause 2(ii) of Ext.P1 tender notice. The production of the Certificate and the specifications therein, are mandatory conditions in the tender notice rules, which determines the basic eligibility of the tenderer to enter into the tender process. Therefore, a certificate produced by the tenderer seeking pre-qualification in a tender process should strictly comply with the tender conditions and this requirement cannot be diluted in any manner. If that be the standard that is adopted by an awarder in a tender process, the certificate produced by the third respondent was totally unacceptable and based on that -6- certificate, the third respondent could not have been pre- qualified.
We have also had occasion to go through the Certificate produced by the appellant. The Certificate produced by the appellant is one issued by the Convener, Hospital Canteen Management Committee on 01.03.2017 and it reads thus: “No.A7/Canteen/2017-H
Dated:01/03/2017 CERTIFICATE This is to certify that Smt.Sini Beny, Canteen Contractor is running the Hospital Canteen attached to Cochin Port Trust Hospital for a period of three years from 13.01.2014 to 12.01.2017. I understood that canteen has got 12 staff members including 3 cooks and it caters more than 200 customers per day. During the period, she maintained the Hospital Canteen neat and hygiene. Her conduct and character are very good. Convener Hospital Canteen Management Committee To Smt.Sini Beny, Canteen Contractor Hospital Canteen 7. This Certificate, being a copy, though duly } This has issued as per request dt.23.02.2017”
-7- attested, is again lacking in particulars with regard to the major items served for in the canteen during the contract period. That means, for the aforesaid very reason, the appellant also could not have been pre-qualified. Resultantly, the award of tender, based on the decision taken by respondents 1 and 2 subsequent to the judgment under appeal cannot be sustained.
Learned counsel for respondents 1 and 2 submitted that the tender has already been awarded to the the third respondent and on that basis they have already started the canteen.
For the aforesaid reasons, the judgment under appeal and the award of the tender to the third respondent are set aside and the appeal is disposed of with the following directions: (a) Respondents 1 and 2 is allowed to continue with the existing arrangement for a period of eight weeks from today.
-8- (b) In the meantime, they will issue fresh tenders inviting bids and will award contract for the canteen on that basis. ANTONY DOMINIC
CHIEF JUSTICE DAMA SESHADRI NAIDU JUDGE kns/- //// P.S. TO JUDGE
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