S. Harikumar v. Kerala Water Authority and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940** ## **WP(C).No. 13673 of 2018** ## **PETITIONER:** **S.HARIKUMAR AGED 54 YEARS** **PROPRIETOR, NIRMAN ELECTRICALS,ENGINEERS AND CONTRACTORS SIVAPRIYA, TC 76/1441, KADAMPILLY LANE,ANAYARA.P.O,THIRUVANANTHAPURAM- 695 029** **BY ADV. SRI.SERGI JOSEPH THOMAS** ## **RESPONDENTS:** - **1 THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR,VELLAYAMBALAM, THIRUVANANTHAPURAM- 691 050** - **2 THE ADDITIONAL CHIEF SECRETARY WATER RESOURCES DEPARTMENT,GOVERNMENT OF KERALASECRETARIAT, THIRUVANANTHAPURAM- 695 001** - **3 THE SUPERINTENDING ENGINEER PUBLIC HEALTH CIRCLE,KERALA WATER AUTHORITY,OBSERVATORY HILLS, THIRUVANANTHAPURAM- 695 033** - **4 M/S.HYDRO ELECTRICAL SYSTEM REPRESENTED BY ITS AUTHORISED OFFICERMASTHAN GORI STREET, BALAKRISHNAPURAM,ADAMBAKKAMCHENNAI, PIN- 600 088** **BY ADVS. SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY SRI.V.JOHN MANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4.10.2018, THE COURT ON 2.11.2018 DELIVERED THE FOLLOWING:** W.P.(C).No.13673/18 2 ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “i)Issue a writ of Certiorari or any other appropriate writ, direction or order calling for the records leading up to the issuance of Exhibit P7 and quash Exhibits P4 and P7. ii)Declare that the 4[th] respondent is not eligible to be considered for the work covered by Exhibits P1 to P3. iii)Issue a writ of Mandamus or any other appropriate writ, direction or order commanding respondents 1 and 3 to award the tender covered by Exhibits P1, P2 and P3 to the petitioner. iv) or in the alternative issue another writ of mandamus or any other appropriate writ, direction or order commanding respondents 1 and 3 retender the work again.” 2. The issue raised in the writ petition is with regard to rejection of the tender submitted pursuant to Exhibit P1 tender notice. It is stated that the petitioner and the 4[th] respondent alone participated in the tender. The petitioner's tender was rejected on the ground that the petitioner was not pre-qualified. The learned counsel for the petitioner would submit that the rejection is on highly technical grounds and that the 4[th] respondent is also not qualified since the work tendered was supply of low life-cycle cost high efficient centrifugal pumps with the required W.P.(C).No.13673/18 3 specifications and Exhibit P10 would show that the pump offered by the 4[th] respondent is not as specified in the tender notice. It is further submitted that the experience certificate produced by the 4[th] respondent did not bear any seal. It is further submitted that the acceptance of the tender of the 4[th] respondent on the basis of the documents produced much later than the date fixed for opening tender was clearly vitiated. It is stated that copy of Exhibit R4(j) letter of rejection was never served on the petitioner and the reasons stated are also not tenable. 3. A counter affidavit has been filed on behalf of respondents 1 to 3. It is stated that low life-cycle cost pump is a new technology and the tender notice specifically required proof of past experience of completed works within eight years. It is stated that the subject work was initially tendered with due date on 15.6.2017, but no bidders were pre-qualified. Fresh tenders were invited by Exhibit P1 wherein the petitioner and the 4[th] respondent participated. It is stated that the petitioner has submitted tender in joint venture with M/s.Kirloskar Electric Company Ltd and M/s.Cecco. It is stated that the petitioner was disqualified since he had failed to produce documentary evidence to prove financial W.P.(C).No.13673/18 4 standing, past experience and organizational capacity of the joint venture partners in Q1 to Q8 formats. It is stated that the petitioner has lagged two works of the Water authority and was imposed penalty for intentional delay. It is stated that Clause 7.17.1.2.7 of the notice inviting tender states that a tenderer who has lagged two works shall not be pre-qualified. It is stated that the petitioner has experience in installation of turbine pumps only and it had been made clear that such experience would not be in terms of the tender notification. At paragraph 12 of the counter affidavit it is stated that the pump offered by the 4[th] respondent satisfies the hydraulic institute design standards with 90% efficiency and that the manufacturer clarified that the quoted pumps have the sustainable efficiency and also meet the requirements under the tender notification. It is further stated that the authenticity of the experience certificate furnished by the 4[th] respondent was verified with the certificate issuing authority and was confirmed. It is submitted that there was extreme urgency in the completion of work and the work has been awarded and is on going. 4. A counter affidavit has been filed by the 4[th] respondent as well W.P.(C).No.13673/18 5 stating several factual aspects of the matter. 5. I have considered the contentions advanced. The challenge is against the rejection of the petitioner's tender. It has been specifically stated by the respondents that the petitioner was not pre-qualified since necessary documents to prove past experience as required in Exhibit P1 was not produced by the petitioner. This aspect is not specifically denied by the petitioner. The attempt of the petitioner is to state that the 4[th] respondent also suffered equal or more serious disqualification. The tender inviting authority has placed a counter affidavit on record stating that the pumps offered by the 4[th] respondent answered the specifications of the notice inviting tenders. It is further stated that the experience certificates relied on by the 4[th] respondent were verified by the tender issuing authority and found to be in order. In a matter of award of contract, this Court cannot function as a court of appeal to reconsider the decision of the competent authority with regard to the disqualification or otherwise of a tender. When the tender inviting authority specifically states that the details have been verified and that one of the tenderers have been found to be pre-qualified and otherwise eligible for the award of tender, in the absence of W.P.(C).No.13673/18 6 substantiated allegations of _mala fide,_ this court would not be in a position to examine the factual aspects of the matter and consider whether the opinion of the tender inviting authority was well founded. It has been repeatedly held by this Court as well as the Apex Court that a review of the technical evaluation or comparison by the court would be impermissible. The decisions of the Apex Court in **Tata Cellular v. Union of India** [(1994) 6 SCC 651), **Sterling Computers Limited v.M & N Publications Limited** [(1993) 1 SCC 445], and **Montecarlo Ltd. v. NTPC Ltd** . [2016 (4) KLT 2081 (SC)] are instances of precedents on the point. 6. The petitioner has not produced any material to show that he had produced all relevant materials as required in Exhibit P1. In the absence of any such assertion, I am of the opinion that the allegations raised as to the disqualification of the 4[th] respondent have to fail in the face of the counter affidavit filed by respondents 1 to 3. The writ petition therefore fails and the same is accordingly dismissed. **Anu Sivaraman, Judge** W.P.(C).No.13673/18 7 sj ## **APPENDIX OF WP(C) 13673/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ELECTRONIC TENDER NOTICE DATED 4.1.2018** **EXHIBIT P2 TRUE COPY OF THE NOTICE INVITING TENDER (VOLUME-1)** - **EXHIBIT P3 TRUE COPY OF THE NOTICE INVITING TENDER (VOLUME-2)** - **EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE PRE BID MEETING HELD ON 22.2.2018** - **EXHIBIT P5 TRUE COPIES OF THE RELEVANT DOCUMENTS ALONG WITH THE TENDER** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 26.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESOPNDENT** **EXHIBIT P7 TRUE COPY OF THE EMAIL DATED 9.3.2018 SENT BY THE THIRD RESPONDENT** **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 19.3.2018 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT** **EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 22.3.2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT** - **EXHIBIT P10 TRUE COPIES OF THE RELEVANT PAGES OF THE QUOTATIONS SUBMITTED BY THE FOURTH RESPONDENT** - **EXHIBIT P11** **TRUE COPY OF THE CATALOGUE OF M/S. WILLO MATHER AND PLATT.** W.P.(C).No.13673/18 8 **EXHIBIT P12** **TRUE COPY OF THE LETTER NO.AB-482/06, VOL.II DATED 2.7.2018 ISSUED BY EXECUTIVE ENGINEER, PROJECT DIVISION, KERALA WATER AUTHORITY, KATTAPPANA.** **RESPONDENTS' EXHIBITS:** **EXHIBIT R4 A** TRUE COPY OF THE VOLUME I OF NOTICE INVITING TENDER FOR "MODERNISATION OF ARUVIKKARA PUMPING STATION SUPPLY AND ERECTION OF RAW WATER & CLEAR WATER PUMPSETS AND SUB STATION IMPROVEMENT WORKS" ISSUED BY THE 3RD RESPONDENT. **EXHIBIT R4 B** TRUE COPY OF PROCEEDINGS OF THE 3RD RESPONDENT DATED 27.12.2017 REJECTING THE TENDER SUBMITTED BY THE PETITIONER AND CANCELLING THE BID. **EXHIBIT R4 C** TRUE COPY OF THE LETTER DATED 8.3.2018 ISSUED M/S. WILO MATHER AND PLATT PUMPS PVT. LTD. TO THE 3RD RESPONDENT. **EXHIBIT R4 D** TRUE COPY OF THE CLARIFICATION DATED 23.6.2018 TO THE 3RD RESPONDENT BY M/S. WILO MATHER +PLATT PUMPS PVT. LTD. **EXHIBIT R4 E** TRUE COPY OF THE LETTER DATED 19.5.2018 ISSUED BY THE 3RD RESPONDENT. **EXHIBIT R4 F** TRUE COPY OF THE COMMUNICATION ISSUED BY THIS RESPONDENT TO THE 3RD RESPONDENT DATED 30.5.2018. **EXHIBIT R4 G** TRUE COPY OF COMMUNICATION ISSUED BY CG POWER AND INDUSTRIAL SOLUTIONS LTD. DATED 23.5.2018. **EXHIBIT R4 H** TRUE COPY OF ONE SUCH COMMUNICATION ISSUED BY M/S. WILLO MATHER +PLATT PUMPS PVT. LTD. DATED 24.5.2018. W.P.(C).No.13673/18 9 **EXHIBIT R4 I** TRUE COPY OF ONE SUCH COMMUNICATION ISSUED BY TMEIC INDUSTRIAL SYSTEMS INDIA PVT. LTD. DATED 27.5.2018. **EXHIBIT R4 J** TRUE COPY OF THE COMMUNICATION DATED 23.3.2018. **EXHIBIT R4 K** TRUE COPY OF THE ORDER DATED 9.7.2015. **EXHIBIT R4 L** TRUE COPY OF THE ORDER DATED 9.7.2015. **EXHIBIT R4 M** TRUE COPY OF THE REPRESENTATION DATED 14.2.2018. True copy PS to Judge W.P.(C).No.13673/18 10