W.P.(C)No.24020 of 2022
1
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944**
**WP(C) NO. 24020 OF 2022**
## **PETITIONER/S:**
PHILIP THOMAS AGED 64 YEARS S/O LATE P.M THOMAS, PUTHENKAYYALAYIL HOUSE, KOTTANADU P.O, MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689 678. BY ADVS. JOSEPH GEORGE P.A.REJIMON
## **RESPONDENT/S:**
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695 001. 2 EXECUTIVE ENGINEER PWD- BUILDINGS DIVISION, OFFICE OF PWD BUILDINGS DIVISIONS PATHANAMTHITTA P.O, PIN 689 645. 3 CHIEF ENGINEER (BUILDINGS), PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE COMPLEX, MUSEUM P.O, THIRUVANANTHAPURAM, PIN - 695 033. BY ADV ADVOCATE GENERAL OFFICE KERALA
## **OTHER PRESENT:**
0 GP P. S. APPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2022, THE COURT ON 8/11/2022 DELIVERED THE FOLLOWING:
W.P.(C)No.24020 of 2022
2
## **V.G.ARUN J.**
-------------------------------------
## **W.P.(C) No.24020 of 2022**
**---------------------------------**
Dated this the 8th day of November 2022
## **JUDGMENT**
The petitioner, a 'B' class contractor, had participated in the tender for construction of new building for Government Model L.P.School, Thadiyoor in Pathanamthitta, floated by the Public Works Department as per Ext.P1 tender notification. In the notification, the Probable Amount of Contract(PAC) was estimated at Rs.89,28,305/-. The petitioner submitted his bid by quoting 6.70% above the estimated rate. Altogether four bids were submitted out of which one was rejected at the pre qualification stage. Among the three qualified bidders, the petitioner's bid was the lowest. In spite of being the lowest bidder, the works was not awarded to the petitioner. Instead, the petitioner was issued with Ext.P2, requiring him to inform whether he is prepared to execute the work at 3.01% less than the estimated rate, viz.the rate quoted by the unqualified bidder. The petitioner sent Ext.P3 reply stating that the PWD Manual does not provide for negotiation after opening of the bids and if the work is not awarded, despite petitioner being the lowest, he will have to initiate legal action. Thereafter, the
W.P.(C)No.24020 of 2022
3
respondent proceeded to re-tender the work by issuing Ext.P4 notice inviting tender. Challenging Ext.P4 and seeking a direction to award the work in his favour, the petitioner filed W.P.(C)No.18024 of 2022. That writ petition was disposed of under Ext.P5 judgment, directing the second respondent to consider the petitioner's representation and take a reasoned decision thereon after affording an opportunity of hearing to the petitioner. In compliance of the direction, the second respondent heard the petitioner and issued Ext.P7 order rejecting his contentions and finding that, in the tender conducted pursuant to Ext.P4, the lowest bidder had quoted 9.5.% below estimated rate, whereas the petitioner's quote was at 6.7% above the estimate rate. The second respondent held that the difference between the lowest tender and the petitioner's tender being Rs.14,46,385.41/-, the public exchequer will benefit if the work is awarded to the lowest tender. Aggrieved, this writ petition is filed seeking the following reliefs;
i). Call for the records leading to the issuance of the originals of Exhibits P6 and set aside the same by the issuance of a writ of certiorari or other appropriate writ, order or direction;
ii). Issue a writ of mandamus or other appropriate writ, order or direction commanding the 2[nd] respondent to cancel the retender process commenced vide Exhibit P-4 and issue selection notice to the petitioner for the execution of work of construction of new building for Government Model L.P. School, Thadiyoor, Pathanamthitta;
W.P.(C)No.24020 of 2022 4
2. Adv. George Joseph, learned counsel for the petitioner, contended that, being the lowest tenderer, the work ought to have been awarded to the petitioner. Clause 2009.3 of the PWD Manuel is pressed into service to argue that there cannot be a negotiation after opening of tenders. To buttress the contention, reliance is placed on the decision in **Cherian Varkey Construction Company(Pvt.) Ltd. v. State of Kerala (2020 (4) KLT 879)** . It is contended that the second respondent had committed gross illegality by opening the bid submitted by an unqualified bidder and requiring the petitioner to quote at his rate. Ext.P7 is challenged on the ground that it is not in accordance with the direction issued by this Court in Ext.P1 judgment and no justifiable reason is stated for rejecting the petitioner's representation.
3. Learned Government Pleader contended that Ext.P2 letter was issued to the petitioner on to enquire whether he is willing to do the work at the rate quoted by the qualified bidder. Ext.P2 was not issued with the intention of inviting the petitioner for negotiation, but only for the purpose of enquiring about his willingness to do the work at 3.01% below estimated rate. As the petitioner was not willing to execute the work at that rate, the second respondent had decided to go for re-tender. In the tender conducted pursuant to Ext.P4, the lowest bidder had quoted at
W.P.(C)No.24020 of 2022
5
9.5% below estimate rate whereas the petitioner stuck on to 6.7% above estimated rate, the rate he had quoted in the first tender. The difference between the lowest quoted bid and the petitioner's bid is Rs.14,46,385.41. As such it will be against public interest to award the work to the petitioner. It is contended that the employer is not bound to award the contract in favour of the lowest bidder under all circumstances and leeway should be is provided to re-tender the works, if circumstances warrant such action.
4. The facts are not in dispute. The estimated rate of the contract is Rs.89,28,305/-. In the first tender, the petitioner had quoted at 6.70% above PAC. The lowest rate was quoted by an unqualified bidder. The second respondent sent Ext.P2 letter to the petitioner enquiring about his willingness to do the work at the rate quoted by the unqualified bidder viz. 3.0% below PAC. No doubt, Clause 2009.3 of the PWD Manual prohibits negotiation after opening of tenders. In **Cherian Varkey Construction Company(Pvt.) Ltd.(supra),** the learned Single Judge of this Court has held that there shall not be any post tender negotiation. The question here is whether Ext.P2 letter of the second respondent amounts to negotiation. A reading of Ext.P2 shows that all that the second respondent did was to enquire whether the petitioner was willing execute the work at the rate quoted by the unqualified
W.P.(C)No.24020 of 2022 6
bidder. That, in my view, would not amount to negotiation. Negotiation means a discussion aimed at reaching an agreement. In Ext.P2, there is no offer to hold a discussion. Hence, Clause 2009.4 of the PWD Manuel or the decision in **Cherian Varkey Construction Company(Pvt.) Ltd. v. State of Kerala(supra)** has no application.
5. As rightly contended by the learned Government Pleader, the employer is not bound to award the contract to the lowest bidder under all circumstances. Of course, the Constitutional courts can interfere if the decision to go for re-tender is irrational, arbitrary or mala fide. There is a allegation of mala fide against the second respondent. The decision to re-tender the work being based on larger public interest and to avid loss that the State Exchequer, cannot be held to be irrational or arbitrary. As has been held by the Apex Court time and again, the writ courts should exercise restraint and caution while dealing with matters pertaining to contracts and should intervene only if overwhelming public interest demand such action. Here, the overwhelming public interest is in favour of the work being awarded to the lowest bidder and I also take into account the fact that the work was with respect to the construction of school building, which cannot be delayed any further.
W.P.(C)No.24020 of 2022 7
For the aforementioned reasons, the writ petition is
dismissed.
Sd/-
**V.G.ARUN Judge**
dpk
W.P.(C)No.24020 of 2022
8
## **APPENDIX OF WP(C) 24020/2022**
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOCOPY OF THE BID OPENING SUMMARY. Exhibit P2 TRUE PHOTOCOPY OF LETTER NO: D-5-8689/2019 DATED 09-05-2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P3 TRUE PHOTOCOPY OF THE REPLY DATED 23-052022 SUBMITTED BY THE PETITIONER. Exhibit P4 TRUE PHOTOCOPY OF NOTICE INVITING TENDER NO: PWD/BLDG/3762/2022-2023 DATED 31-052022.
Exhibit P5 TRUE PHOTOCOPY OF THE JUDGMENT DATED 0107-2022 IN W.P (C) 18024/2022 OF THIS HON'BLE COURT.
Exhibit P6 TRUE PHOTOCOPY OF THE MINUTES OF THE HEARING HELD ON 18-07-2022 AT THE CHAMBERS OF THE 2ND RESPONDENT. ALONG WITH TYPED COPY.
