## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON**
**TUESDAY, THE 16TH DAY OF JULY 2013/25TH ASHADHA, 1935**
**WP(C).No. 17283 of 2013 (I)**
**----------------------------**
**PETITIONER:**
**-----------**
**MALABAR CEMENTS LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD.NO.P.946, REPRESENTED BY ITS SECRETARY, WALAYAR P.O. PALAKKAD-678624.**
**BY ADVS.SRI.N.SUKUMARAN (SR.) SRI.S.SHYAM SRI.N.K.KARNIS**
**RESPONDENTS:**
**------------**
**MALABAR CEMENTS LTD. REPRESENTED BY ITS MANAGING DIRECTOR, WALAYAR P.O. PALAKKAD-678624.**
**R BY SRI.M.GOPIKRISHNAN NAMBIAR**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**WP(C).No. 17283 of 2013 (I)**
**----------------------------**
## **APPENDIX**
**PETITIONER(S)' EXHIBITS**
**-----------------------**
**EXHIBIT P1 : TRUE COPY OF THE REGISTRATION CERTIFICATE DT.27-9-1990.**
**EXHIBIT P2 : TRUE COPY OF THE PART I OF TENDER DOCUMENT ISSUED BY THE RESPONDENT DT.14-6-2013.**
**EXHIBIT P2A : TRUE COPY OF THE BID SUBMISSION DT.3-7-2013.**
**EXHIBIT P2B : TRUE COPY OF THE ON LINE BANK CONFIRMATION DT.3-7-2013.**
**EXHIBIT P3 : TRUE COPY OF THE CORRIGENDUM TO EXT.P2 ISSUED BY THE RESPONDENT DT.4-7-2013.**
**RESPONDENT(S)' EXHIBITS: NIL**
**-----------------------**
**TRUE COPY PA TO JUDGE**
**SCL.**
## **P.R.RAMACHANDRA MENON, J. -------------------------------------**
**W.P.(C) No. 17283 of 2013 -------------------------------------Dated this the 16[th] day of July, 2013**
## **JUDGMENT**
The change sought to be made with regard to the tender conditions in the matter of loading and unloading operations to be carried out in the respondent company, is the subject matter of challenge in this writ petition.
2. The petitioner is a Co-operative Society registered under the Kerala Co-operative Societies Act as borne by Ext.P1 certificate of registration. It is the case of the petitioner that, the petitioner had been doing the loading and unloading operations in the respondent Company for quite long, based on the tenders floated at different points of time. The cause of action in the present writ petition is in respect of Ext.P2 tender notice issued by the respondent inviting bids from qualified persons. The case of the petitioner is that, the qualification prescribed under Clause VII of Ext.P2 clearly stipulates three years' experience in loading and unloading works in the
W.P.(C) No. 17283 of 2013
2
State/Central/Departments/Public Sector undertakings, which was sought to be varied/relaxed by issuing Ext.P3 corrigendum on 4.7.2013 ie, on the eve of the last date for the submission of tender on 5.7.2013. By virtue of the said relaxation, parties having experience in the 'private sector', have also been permitted to participate in the bid. This, according to the petitioner, is quite arbitrary and with a malafide intention and hence is under challenge in this writ petition.
3. Heard the learned standing counsel appearing for the respondent Company as well.
4. On going through the pleadings and the proceedings,
it is seen that the modification by way of Ext.P3 was effected before the last date of submission of the tender and Ext.P3 itself says that the due date for tender submission ie, tender opening will stand extended. This being the position, it cannot be said that anybody will be prejudiced because of the modification of the terms of qualification. What should be the qualification of a party who participates in the tender, what should be the
W.P.(C) No. 17283 of 2013
3
requirement/experience and what are the relevant points/traits to be considered etc. are for the tenderer to prescribe. The eligibility conditions as given in Exts.P2 and P3 (original and modified) are in the following terms:
(Page No.11 of Ext.P2 - original)
## _“_ _**VII. Eligibility to qualify as a bidder** :_
_The tenderers should permit/furnish the following along with the_ _**cover-I** of the tender to prove the eligibility to become a qualified bidder. Price Bid of those qualified bidders only will be considered for further evaluation._
_i. Evidence of at least three years of experience in loading and unloading work in State/Central/Departments/ Public Sector undertakings having a minimum turnover of Rs.150 crores per annum, has to be uploaded along with_ _**coverI** duly attested by notary._
_ii. ESI Registration as per ESI Act of 1948, Provident Fund Registration under PF and MP Act 1952 and License under Control Labour (Regulations and Abolition) Act to be uploaded along with cover-I._
_iii. Certificate of registration under Service Tax Act. iv. The tenderer shall upload IT returns for any one of the three financial years (ie, 2010-11, 2011-12 and 2012-13) duly attested by a chartered accountant in cover I._
_v. Tenderer shall sign all pages of the tender as a token of acceptance of the Scope of Work and all the Terms and conditions mentioned in the tender._
W.P.(C) No. 17283 of 2013
4
_vi._ _**Cover II** of the offer (Price bid) of those tenderers who are meeting all the above conditions only will be opened on a subsequent date for which separate intimation will be sent. Those tenderers who are not meeting even any one of the above conditions will not be considered.”_
## (Page No.28 of Ext.P3-modified)
## _**“VII. Eligibility to qualify as a bidder:**_
_The tenderers should permit/furnish the following along with the_ _**cover-I** of the tender to prove the eligibility to become a qualified bidder. Price Bid of those qualified bidders only will be considered for further evaluation._
_i. Evidence of at least one year of experience in loading and unloading work in State/Central/Departments/Public/Private Sector undertakings having a minimum turnover of Rs.150 crores per annum, has to be uploaded along with_ _**cover-I** duly attested by notary._
_ii. ESI Registration as per ESI Act of 1948, Provident Fund Registration under PF and MP Act 1952 and License under Control Labour (Regulations and Abolition) Act to be uploaded along with_ _**cover-I.**_
_Iii. Certificate of registration under Service Tax Act._
_iv. The tenderer shall upload IT returns for any one of the three financial years (ie, 2010-11, 2011-12 and 2012-13) duly attested by a chartered accountant in cover I._
_v. Tenderer shall sign all pages of the tender as a token of acceptance of the Scope of Work and all the Terms and conditions mentioned in the tender._
_vi. Cover II of the offer (Price bid) of those tenderers_
W.P.(C) No. 17283 of 2013
5
_who are meeting all the above conditions only will be opened on a subsequent date for which separate intimation will be sent. Those tenderers who are not meeting even any one of the above conditions will not be considered.”_
5. The petitioner has not pointed out, in what matter he will be prejudiced by the issuance of Ext.P3, as he has not been disqualified in any manner. The only apprehension of the petitioner is that, more people may come forward to participate in the bid, which may adversely affect the rights and interests of the petitioner. This Court is not at all impressed by the said proposition. The learned counsel appearing for the respondent submits that, the qualification prescribed originally vide Ext.P2 was in existence for quite long and that the tender was being awarded to the petitioner, despite the fact that the rate quoted by the petitioner society was quite on the higher side. It was after considering the facts and figures that the respondent Company thought it fit and proper to have more competitive bids and it was accordingly, that the qualification was varied in the best interest of the respondent Company, which is a public sector enterprise belonging to the State of Kerala. In such
W.P.(C) No. 17283 of 2013
6
circumstances, this Court finds that no interference is warranted with regard to the change in qualification effected as per Ext.P3, as no fundamental right of the petitioner has been adversely affected.
6. However, it is brought to the notice of this Court that, when the petitioner submitted it's bid on 3.7.2013, the condition that was in existence was the eligibility criteria fixed as per Ext.P2 stipulating a minimum experience of 'three years'. It was after the petitioner's submitting the bid, that Ext.P3 was issued relaxing the experience to be of 'one year'. On such a situation, it can be said that, the petitioner had quoted the rate visualizing a lesser competition and by virtue of the turn of events in the charged circumstances, it is likely that more participants may take part in the bid. Hence an opportunity has to be given to the petitioner to submit a fresh bid, if so desired, so as to revise the rate quoted, to be more competitive. The learned counsel appearing for the respondent also points out that the last date for submitting the bid is fixed as 19.7.2013.
W.P.(C) No. 17283 of 2013
7
In the said circumstances, the petitioner stands permitted to submit a 'revised price bid' in respect of Ext.P3 tender and if the same is submitted on or before the last date for submission of the tender as now refixed, the same shall be considered along with the other tenders submitted by the parties concerned. The writ petition is disposed of accordingly.
Sd/-
**P.R. RAMACHANDRA MENON, JUDGE.**
Scl.
