Anish Markose v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943** **WP(C) NO. 17381 OF 2021** ## **PETITIONER:** **ANISH MARKOSE, AGED 40 YEARS, S/O MARKOSE, OMBALAYIL HOUSE, KOLENCHERRY, ERNAKULAM DISTRICT-682311, AUTHORIZED SIGNATORY OF ANTECH-PRL(JV) (A JOINT VENTURE ASSOCIATION ANTECH CONSTRUCTION COMPANY AND PRL PROJECT AND INFRASTRUCTURE LTD.), OMBALAYIL, KOLENCHERRY, ERNAKULAM.** **BY ADVS. SRI.SAJEEV KUMAR K.GOPAL SRI.ASWATHY BABU** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE SECRETARY TO THE GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 THE KERALA STATE TRANSPORT PROJECT, TC 11/339, SREEBALA BUILDING, KESTON ROAD, NANDANCODE, KOWDIAR.P.O, THIRUVANANTHAPURAM-695003, REPRESENTED BY THE PROJECT DIRECTOR.** - **4 THE CHIEF ENGINEER, KERALA STATE TRANSPORT PROJECT, TC 11/ 339, SREEBALA BUILDING KESTON ROAD, NANDANCODE, KOWDIAR.P.O, THIRUVANANTHAPURAM-695003.** WP(C) No.17381/2021 : 2 : - **5 THE PROJECT DIRECTOR KERALA STATE TRANSPORT PROJECT, TC 11/339, SREEBALA BUILDING, KESTON ROAD, NANDANCODE, KOWDIAR.P.O, THIRUVANANTHAPURAM695003.** - **6 M/S MARY MATHA INFRASTRUCTURE PVT.LTD, MARY MATHA SQUARE, ARAKUZHA ROAD, MUVATTUPUZHA.P.O, ERNAKULAM DISTRICT-686661.** **BY ADVS. P.SHANES METHAR FOR R6** **SRI.K.V.MANOJKUMAR, SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.17381/2021 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 9[th] day of November, 2021**_ The petitioner, who is authorised signatory of ANTECH-PRL(JV), Ernakulam, has approached this Court seeking to direct respondents 2 to 5 to forthwith publish the pre-qualification evaluation of the bidders with respect to the work, namely Rehabilitation and Upgradation of Vadayar – Chanthapalam – Mulakkulam Road and Vadayar Kallattippalam – Muttuchira Road in Kottayam District vide Bid No.KSTP/KFW/RKI/PKG-IV/Work/Rd-2 forthwith. The petitioner has also sought to direct the respondents not to award the said work to the 6[th] respondent who is not pre-qualified for the work. 2. The 3[rd] respondent-Kerala State Transport Project invited bid for the work of Rehabilitation and Upgradation of Vadayar – Chanthapalam – Mulakkulam Road and Vadayar Kallattippalam – Muttuchira Road in Kottayam District vide Bid WP(C) No.17381/2021 : 4 : No.KSTP/KFW/RKI/PKG-IV/Work/Rd-2, for a length of 22.476 Km. The petitioner satisfied Clause 4.2(b) of Ext.P2 which are the qualification and evaluation criteria. The 6[th] respondent does not have the required experience under Clause 4.2(b), contended the petitioner. The 6[th] respondent has not produced any documents along with their tender, in proof of their experience. 3. When the financial bid was opened, the 6[th] respondent was found to be in L1 position and the petitioner was L2. The petitioner submits that the 6[th] respondent does not have requisite experience and respondents 3 to 5 have not provided the pre-qualification documents in the e-procurement portal. 4. The petitioner submitted Ext.P4 representation to upload the pre-qualification evaluation of bidders. The petitioner again represented to the 2[nd] respondent as per Ext.P5 pointing out that pre-qualification documents were not made available, that the 6[th] respondent does not have the pre-qualification and requesting not to award work to the 6[th] WP(C) No.17381/2021 : 5 : respondent. Apprehending that the work will be awarded to the 6[th] respondent in spite of want of qualification and experience, the petitioner has filed this writ petition. 5. The 4[th] respondent filed a statement in the writ petition. The 4[th] respondent stated that the 6[th] respondent is a single entity and the qualification on requirement of a single entity is specified in Clause 4.2(b). For establishing experience, the bidder can demonstrate their arrangement to deploy specialised agency with sufficient machinery or they can submit an undertaking to procure own machinery for the purpose of carrying out the work. As per the technical evaluation, the 6[th] respondent was found qualified and well experienced. 6. The 4[th] respondent stated that the evaluation of bidders was done by M/s.Louis Berger which is the German Bank approved project management consultancy. The technical evaluation report was forwarded to the German Bank, which was approved by the Bank as per Annexure-R4(h). WP(C) No.17381/2021 : 6 : 7. The 6[th] respondent filed a counter affidavit. The 6[th] respondent stated that they are qualified and successful bidders and are entitled to award of the work. The 6[th] respondent satisfies all eligibility criteria prescribed for the work. 8. After perusing the pleadings and hearing the arguments, it appears that the grievance raised by the petitioner is relating to Clause 4.2(b) of Ext.P2 bidding document which provides the requirement as to construction experience in key activities. The allegation is that the 6[th] respondent does not satisfy the experience required of single entity bidders. Clause 4.2(b) to the extent it is applicable to single entity bidders is as follows:- |No.|Subject|Requirement|Single Entity| |---|---|---|---| |||2 works of INR 48.75 Crores (Forty<br>Eight Crores Seventy Five Lakhs<br>only) or 3 works of INR 39 Crores<br>(ThirtyNine Crores only)|| WP(C) No.17381/2021 : 7 : |4.2(b)|Construction<br>Experience<br>in<br>key<br>activities|For the above or any other<br>contracts completed and under<br>implementation as prime contractor,<br>joint venture member, management<br>contractor or subcontractor on or<br>after the first day of the year during<br>the period stipulated in 4.2(a)<br>above, a minimum construction<br>experience in the following key<br>activities successfully completed:<br>1. Bituminous Concrete: 800 cum<br>per year<br>2. Dense Bituminous Macadam:<br>950 cum per year<br>3. Wet Mix Macadam: 400 cum per<br>year<br>4. Granular Sub-base 12400 per<br>year<br>5. Minor Bridge: At least 1 No. 10 m<br>span per year<br>6. PQC M 40 grade 14750 cum per<br>year<br>7. DLC: 7700 cum per year<br>8. RCC: 11300 cum peryear|Must<br>meet<br>requirements. For<br>items 6 and 7,<br>alternatively, the<br>bidder<br>shall<br>demonstrate their<br>arrangement to<br>deploy specialised<br>agency<br>with<br>sufficient<br>machinery or to<br>submit<br>an<br>undertaking<br>to<br>procure<br>own<br>machinery for the<br>purpose<br>for<br>carrying out PQC<br>and DLC and<br>engage<br>experienced<br>technicians in the<br>relevant field.| |---|---|---|---| The allegation of the petitioner is that the 6[th] respondent does not satisfy the requisite experience enumerated at Item Nos.4, 6 and 7. 9. The learned counsel for the petitioner argued that the 6[th] respondent does not have the requisite 12400 cubic metres per year experience of Granular Sub-base, 14750 cubic metres per year experience in PQC M 40 grade and 7700 cubic metres per year experience in DLC. Clause 4.2(b) WP(C) No.17381/2021 : 8 : contains “must meet requirements” and therefore there cannot be any relaxation. The project is of ₹111 Crores and it cannot be given to any entity which does not have requisite experience. The learned counsel for the petitioner further argued that there is a vigilance report connected with identical work bid by the 6[th] respondent and the vigilance report clearly indicates that there are no documents to show that the 6[th] respondent satisfies the requisite experience. The vigilance report also has found fault with other authorities who have approved the bid submitted by the 6[th] respondent. The learned counsel for the petitioner further pointed out that in spite of the findings in the vigilance report and substantial allegation made in the writ petition, neither the 4[th] respondent nor the 6[th] respondent has produced even a scrap of paper before this Court to prove their credentials. 10. The learned Senior Government Pleader resisted the writ petition and stated that the selection was done as per an evaluation report which found the 6[th] respondent as competent to undertake the work. The work in question is an WP(C) No.17381/2021 : 9 : external aided project funded by German Bank. The 6[th] respondent has undergone through a multi layer scrutiny and was found to be qualified. As far as publication of documents relating to experience, a party participating in a bid has no right to demand that all the documents should be uploaded in public domain. 11. The learned Senior Counsel assisted by the counsel for the 6[th] respondent submitted that the 6[th] respondent has passed stringent scrutiny in the matter of qualification and experience. The scrutiny was made by agencies who have technical knowledge in the field concerned. The courts should show a lot of restraint in the matter of interference in contractual matters and that too when technical issues are involved. The authority who issues the tender is the best judge to determine the qualification and experience of bidders. The courts should not interfere in such matters unless it is established that the decision taken by the authorities are manifestly arbitrary. The learned Senior Counsel further pointed out that the petitioner has no prayer in WP(C) No.17381/2021 : 10 : the writ petition to award the work to him. The intention of the petitioner is only to thwart the ongoing tendering process and force the authorities to make a re-tender of the same work. The work has to be completed in a time bound manner, within 18 months. Three months have already lapsed. In the circumstances of the case, the writ petition should be dismissed. 12. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 5 and the learned Senior Counsel assisted by the counsel for the 6[th] respondent. 13. The allegation of the petitioner is that the 6[th] respondent does not satisfy the experience conditions relating to the following areas:- - (i) Item No.4 Granular Sub-base 12400 cubic metre per year - (ii) Item No.6 PQC M 40 Grade: 14750 cubic metre per year - (iii) Item No.7 DLC : 7700 cubic metre per year WP(C) No.17381/2021 : 11 : Clause 4.2(b) of Ext.P2 would show that for Item Nos.6 and 7, alternatively, the bidder can demonstrate their arrangement to deploy specialised agency with sufficient machinery or can submit an undertaking to procure own machinery for the purpose for carrying out PQC and DLC and engage experienced technicians in the relevant field. Such an alternate requirement/option has been given to single entities. The 6[th] respondent is a single entity. Ext.P2 bidding document itself gives a relaxed option to single entities. If they do not have the requisite experience in PQC and DLC, they can get the work done deploying specialised agency with sufficient machinery. Such single entities, alternatively, can submit an undertaking to procure own machinery for the purpose of carrying out PQC and DLC and engage experienced technicians in the relevant field. 14. When Ext.P2 bidding document for procurement of the works itself gives such options to the single entity bidders, the petitioner cannot be heard to contend that those are “must meet requirements” and the construction experience should WP(C) No.17381/2021 : 12 : be satisfied by single entity themselves. The 6[th] respondent has given their undertaking as contemplated under Clause 4.2(b) along with their bid. Therefore, the argument of the petitioner based on Item No.6 and 7 of Clause 4.2(b) of Ext.P2 is only to be rejected. 15. As regards Item No.4, it requires experience in Granular Sub-base of a quantity of 12400 cubic metres per year. The 6[th] respondent has stated that they have executed more than 12400 cubic metres in a year, together as a prime contractor and a sub contractor, of Granular Sub-base during the relevant period. The 6[th] respondent would further submit that Wet Mix Macadam (WMM) work means and includes laying and compacting clean, crushed, graded, aggregate and granular material pre-mixed with water, to a dense mass on a required GSD layer. Therefore, technically, the experience in Item No.4 is always taken together with Item No.3. The 6[th] respondent has executed 85704.63 cubic metres of Item No.3 work. WP(C) No.17381/2021 : 13 : 16. The 4[th] respondent has produced Ext.R4(b) which is the technical evaluation report. With regard to requirement of Granular Sub-base, as against the requirement of 12400 cubic metres per year, the 6[th] respondent has compliance of 15818 cubic metres, in the year 2019-'20. As far as the petitioner is concerned, the petitioner has compliance of 30022 cubic metres, which is the average quantity of five years. Therefore, going by the technical evaluation report, the 6[th] respondent satisfies the requirement under Item No.4 of Clause 4.2(b). 17. In this regard, it has to be kept in mind that the project is an external aided project. The bids and the technical qualifications of the bidders have undergone a three stage scrutiny. One by M/s.Louis Berger who are the technical experts appointed by the German Bank. The 3[rd] respondent-Kerala State Transport Project has also scrutinised and verified the qualifications. Thereafter, the German Bank has also considered the qualifications and has arrived at Ext.R4(b) report, after a thorough scrutiny and WP(C) No.17381/2021 : 14 : evaluation. When the authority which tendered the work and the technical experts well-versed in the field have found that the 6[th] respondent satisfies the requisite experience, it would be inappropriate for this Court to come to a conclusion to the contrary, unless of course, there are compelling circumstances. 18. The Hon'ble Apex Court has held in the judgment in _**Silppi Constructions Contractors v. Union of India and another** [(2020) 16 SCC 489]_ that the Courts should exercise a lot of restraints while exercising their powers of judicial review in contractual or commercial matters. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues, the courts should be even more reluctant because most Judges do not have the necessary expertise to adjudicate upon technical issues beyond their domain. The courts should give way to the opinion of experts unless the decision is totally arbitrary or unreasonable. The courts should not use a magnifying glass to scan tenders and WP(C) No.17381/2021 : 15 : make every small mistakes appear like a big blunder. The courts must give “fair play in the joints” to Government and Public Sector Undertakings in matters of contract. 19. The learned counsel for the petitioner pointed out that vigilance wing of Pubic Works Department has made an enquiry into the Nemmara Nelliampathy Road tender under the Re-Build Kerala Project undertaken by the KSTP and came to a conclusion that there is no document submitted by the 6[th] respondent in proof of any work done legally, executing any agreements with the Government and that the PMC Consultants and KSTP Officials who drafted the technical evaluation report could not explain the same. Therefore, when there is a vigilance report against respondents 3 to 6 doubting the technical qualification of the 6[th] respondent, the present work involving ₹111 Crores cannot be awarded to the 6[th] respondent. 20. It has to be noted that the report is drafted by a vigilance enquiry team in respect of another work. As regards the present work, as stated above, the tendering authority and WP(C) No.17381/2021 : 16 : the technical experts have scrutinised the records and found that the 6[th] respondent satisfies the eligibility conditions. As held by the Hon'ble Apex Court, the authority which floats the contracts or tender and has authored the tender documents is the best Judge as to how the document have to be interpreted. The courts will only interfere to prevent arbitrariness, irrationality, bias, malafides or perversity. Therefore, it will be improper to interfere with the tendering process on the basis of a preliminary report made by the vigilance officers of the Public Works Department in respect of another work. For all the afore reasons, the writ petition is devoid of any merit and is liable to be dismissed. The writ petition is accordingly dismissed. Sd/- **N. NAGARESH, JUDGE** aks/06.11.2021 WP(C) No.17381/2021 : 17 : ## **APPENDIX OF WP(C) 17381/2021** ## **PETITIONER'S EXHIBITS:** - **Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY FOR LEAD MEMBER OF THE JOINT VENTURE** - **Exhibit P2 TRUE COPY OF SECION III, QUALIFICATION AND EVALUATION CRITERIA OF BIDDING DOCUMENT FOR PROCUREMENT OF WORK.** - **Exhibit P3 TRUE COPY OF THE TENDER SUMMARY REPORT DATED 14.08.2021 FROM THE E-TENDERING SYSTEM, GOVERNMENT OF KERALA.** - **Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 28.07.2021 SUBMITTED BY ANTECH-PRL(JV) THROUGH ITS AUTHORIZED SIGNATORY.** - **Exhibit P5 TRUE COPY OF THE REPRESENTATION SUBMITTED M/S ANTECH PRL(JV) THROUGH ITS AUTHORIZED SIGNATORY DATED 24.08.2021 BEFORE THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS:** - **Exhibit R6(a) TRUE COPY OF THE RELEVANT PAGES OF THE SECTION II. QUALIFICATION AND BID DATA SHEET.** - **Exhibit R6(b) TRUE COPY OF THE RELEVANT PAGE (CORRIGENDUM - 5) OF THE WORK REHABILITATION AND UP GRADATION OF MOOKKANNUR - EZHATTUMUGHAM ROAD AND BLACHIPPARA - PALLISSERY ROAD (LENGTH 19.950 KM) IN ERNAKULAM DISTRICT (KSTP/KFW/RKI PKG-III/WORK/RD-I).** - **Exhibit R6(c) TRUE COPY OF THE RELEVANT PAGE (SECTION III – EVALUATION AND QUALIFICATION CRITERIA, CLAUSE 4.2(b) FOR WORK REHABILITATION AND UP GADATION OF VADAYAR CHANDAPPALAM MULAKKULAM ROAD AND VADAYAR KALLATTIPPALAM MUTTUCHIRA ROAD (LEMGTH OF 22.476 KM) IN KOTTAYAM DISTRICT.** **ANNEXURE-R4(a) THE RELEVANT PAGE SHOWING CLASUE 4.2(b)** WP(C) No.17381/2021 : 18 : ## **ANNEXURE-R4(b)** **COPY OF THE EVALUATION DONE BY THE GERMMAN BANK APPROVED PROJECT MANAGEMENT CONSULTANCY M/S.LOUIS BERGER.** **ANNEXURE-R4(c) TRUE COPY OF THE APPROVAL OF THE GERMAN BANK DATED 03.05.2021 ANNEXURE-R4(d) TRUE COPY OF THE EVALUATION. ANNEXURE-R4(e) TRUE COPY OF THE APPROVAL OF THE GERMAN BANK DATED 27.05.2021 ANNEXURE-R4(f) TRUE COPY OF CLAUSE 2.5.2. ANNEXURE-R4(g) TRUE COPY OF THE LETTER ISSUED TO NIC KERALA STATE CENTRE (e-TENDER PORTAL) ANNEXURE-R4(h) TRUE COPY OF THE FINAL APPROVAL GIVEN BY THE GERMAN BANK DATED 28.06.2021.** SR