Aji Baker v. State of Kerala and Others

W.P.(C) No.13352 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 WP(C) NO. 13352 OF 2022** ## **PETITIONER/S:** AJI BAKER, AGED 47 YEARS S/O.ABOOBAKER, TC 1/3200, KUDLIL, VADAKKUMBHAGAM, KAZHAKKUTTOM, THIRUVANANTHAPURAM-695 582. BY ADVS. M.R.ANISON V.BHARGAVI (PANANGAD) P.A.RINUSA ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, FOOD AND CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 KERALA STATE CIVIL SUPPLIES CORPORATION LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, MAVELI ROAD, GANDHI NAGAR, KOCHI-682 019. 3 THE NFSA MANAGER, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI ROAD, GANDHI NAGAR, KOCHI-682 019. 4 THE DEPOT MAANGER, PUNALUR TALUK, KOLLAM DISTRICT, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., PUNALUR P.O., PIN-691 305. 5 ANIL KUMAR.V., AGED 47 YEARS S/O.VASUDEVAN PILLAI, PARANKIMAVILA VEEDU, CHADAYAMANGALAM, KOLLAM DISTRICT-691 534. BY ADV SMT.MOLLY JACOB,SC,SUPPLYCO **OTHER PRESENT:** W.P.(C) No.13352 of 2022 2 0 GP RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON 15/11/2022 DELIVERED THE FOLLOWING: W.P.(C) No.13352 of 2022 3 ## **V.G.ARUN (J) ---------------------W.P.(C) No. 13352 of 2022 -----------------------------------Dated this the 15[th] day of November, 2022** ## **JUDGMENT** The petitioner had participated in the e-tender conducted by the second respondent for the work-lifting, transportation, handling and delivery of ration articles from source godowns to destination godowns in Punalur Taluk. As per Clause 8(C)(i) of Ext.P1 tender notice, the technical bid should contain scanned copies of the tender form signed manually and other document mentioned therein. One of the documents to be uploaded along with the manually signed tender form is the manually signed affidavit prepared in Annexure-IV format appended to the tender notice. According to the petitioner, the affidavit in Form-iv uploaded by the fifth respondent was defective, inasmuch as the space for entering the e-tender notice number and date were left blank. As such, the fifth respondent's bid ought to have been rejected at the prequalification stage. But, to the petitioner’s dismay, the fifth respondent’s technical bid and financial bids were opened and the W.P.(C) No.13352 of 2022 4 contract was awarded also to the fifth respondent, as he turned out to be the lowest bidder. Aggrieved this writ petition is filed seeking the following reliefs; a). to issue a writ of mandamus or other appropriate writ, direction directing respondents to disqualify the 5[th] respondent to participate in the tender proceedings pursuant to tender notice bearing No. No.NFSA541937/2021 dated 02/02/2021 issued by the 2[nd] respondent in respect of Punalur Taluk, in Kollam District; (b) to issue a writ of mandamus or other appropriate writ order or direction directing respondents 2 to 4, not to award the work mentioned in tender notice bearing No.NFSA5-41937/2021 dated 02/02/2022 issued by the Kerala State Civil Supplies Corporation to the 5[th] respondent, in respect of Punalur Taluk in Kollam District based on the defective Annexure iv affidavit uploaded by the 5[th] respondent (ONLINE); c) to issue a writ of mandamus or other appropriate writ order or direction directing the official respondents to award the work mentioned in tender notice bearing No.NFSA5-41937/2021 dated 01/02/2022 issued by the Kerala State Civil Supplies Corporation, in Punalur Taluk in Kollam District to the petitioner; 2. Advocate V.P.Seemathini, learned Senior Counsel appearing for the petitioner, contended that, as per Clause 8(B)(i), the documents to prove bidder's technical qualification are to be submitted online and failure to submit the documents attracts disqualification. Clause 8(C)(i) makes uploading of the scanned copies of documents enumerated there under, mandatory. The duly signed(manually) affidavit in the Form-IV should be uploaded with the tender form. Pertinently, the allegation that the fifth W.P.(C) No.13352 of 2022 5 respondent had omitted to enter the tender notice number and date is not controverted. Later, Ext.P2 was issued, clarifying that, failure to sign the Annexures appended to the tender form will not result in disqualification, if the tender form is signed on all pages. According to the Senior Counsel, the clarification is of no avail as far as the fifth respondent is concerned, since his omission was not in signing the affidavit appended to the tender form, but in not entering the tender notification number and date. 3. Adv.Molly Jacob, learned Standing Counsel for the second respondent Corporation, submitted that as per Ext P2 it was clarified that only bids uploaded without signing all pages of the tender form needs to be rejected. The annexures appended to the tender form are required to be signed only to ensure that the tenderer has gone through the document and was thus aware about the requisite details. It is submitted that the tender notice number and its date in Annexure-IV are not informations to be provided by the tenderers. As such, failure to incorporate those details in the affidavit is not a material defect, calling for rejection of the fifth respondent's bid at the technical bid evaluation stage. It is pointed out that in the writ petition filed by another bidder, who had failed to sign Annexure IV affidavit before uploading, W.P.(C) No.13352 of 2022 6 resulting in his bid being rejected by the technical evaluation committee, this court had interfered and ordered to open the petitioner's financial bid. In the light of the said direction, the Technical Evaluation Committee felt it proper to consider the fifth respondent's tender, despite his omission to enter the tender notice number and date. It is submitted that, being the lowest tenderer, the contract for transportation of ration articles within Punalur Taluk was awarded to the fifth respondent in May 2022. Reliance is placed on the decision in _Candela Engineering Corporation v. Corporation of Thrissur and Others_ (2021 (2) KLT 222) to contend that evaluation of tenders and awarding of contracts being essentially commercial functions, principles of equity and natural justice should stay at a distance. Finally it is contended that even the petitioner has no case that acceptance of the fifth respondent's bid and the award of contract to him is actuated by mala fides. 4. Even according to the petitioner, the only defect with respect to the fifth respondent's bid is his omission to enter the tender notification number and date in the affidavit submitted along with the tender form. A perusal of the Form shows that, in the affidavit, the deponent has to state the number and date of the e- tender based on which the tender is being submitted. The body of the affidavit contains affirmations like, the applicant having W.P.(C) No.13352 of 2022 7 understood the terms and conditions of the tender, never being blacklisted or convicted, having no connection with the licence holder of any fair price shop, etc. The applicant has to affirm the earlier statements and affix his signature at the bottom of the affidavit. Being so, there is merit in the contention that omission to enter the number and date of the tender notification is not a material fact justifying rejection of the tender. More so, since even the requirement of signing the affidavit is relaxed by Ext.P2 clarification. 5. There is also substantial merit in the contention that it is the prerogative of the employer to accept or reject the bid. It is settled law that unless the award of contract shall not be interfered with unless the procedure is tainted by mala fides, arbitrariness or irrationality. In the instant case, there is no allegation of mala fides or arbitrariness and there is no reason for the acceptance of the fifth respondent’s tender to be so irrational an action that it warrants interference under Article 226. For the aforementioned reasons the writ petition is dismissed. Sd/- **V.G.ARUN** dpk **JUDGE** W.P.(C) No.13352 of 2022 8 ## **APPENDIX OF WP(C) 13352/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE TENDER NOTICE NO.NFSA 5 41937/2021 DATED 02.02.2022 SUBMITTED BY THE PETITIONER. Exhibit P2 A TRUE COPY OF THE CIRCULAR BEARING NO.NFSA 8852/22 DATYED 15.03.2022 ISSUED BY THE NFSA MANAGER.