Sinoj I.V. v. State of Kerala and Others

WP(C).No.12051/2020(F) 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **WP(C).No.12051 OF 2020(F)** ## **PETITIONER:** **SINOJ I.V., VALIYATH HOUSE, PUTHENCHANDA P.O., PANMANA, CHAVARA, KOLLAM DISTRICT.** **BY ADVS.** **SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D SUDHAKARAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **2 THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT, OFFICE OF THE PROJECT DIRECTOR, KERALA ROAD FUND BOARD, PROJECT MANAGEMENT UNIT, SREE BALA BUILDING, TC 11/339, 5TH FLOOR, KESTON ROAD, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM -695 003.** **3 SOUTHERN TECH REPRESENTED BY ITS MANAGING PARTNER, TOMY VALLAMATTAM, VALLAMATTAM BUILDINGS, PANDAPPILLY P.O., MUVATTUPUZHA, ERNAKULAM - 686 672.** **R1-2 BY GOVERNMENT PLEADER ADV. SRI.K.V.MANOJ KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2020, THE COURT ON 10-07-2020 DELIVERED THE FOLLOWING:** WP(C).No.12051/2020(F) 2 ## **JUDGMENT** ## **Dated this the 10[th] day of July 2020** 1. Heard the learned Senior Counsel appearing for the petitioner and the learned Senior Government Pleader. 2. The petitioner, a Government Contractor, is before this Court challenging the rejection of his tender submitted in response to Exhibit P1 notice inviting tender dated 20.01.2020. The work in question was the construction of a bridge across the Manimala river in Pathanamthitta district. The relevant eligibility condition stated in Exhibit P1 was that the bidder should have completed at least one similar work consisting more than 40% of the estimated cost of the work in the last 5 years. The petitioner contends that he satisfied the qualifications provided in the tender conditions and had submitted Exhibit P3 bid along with Exhibit P2 experience certificate. Exhibit P2 is a certificate issued by the Superintending Engineer (Roads and Bridges), PWD South Circle, Thiruvananthapuram with regard to a work completed in the year 2016. 3. The learned Senior Counsel for the petitioner would contend that Ext.P2 was in respect of a work for an amount of Rs.4,61,88,307/which amounted to more than 50% of the work tendered by Exhibit WP(C).No.12051/2020(F) 3 P1, the estimated cost of which was Rs.7,83,41,245/-. It is, therefore, contended that the petitioner's tender was liable to be accepted on the basis of Exhibit P2 experience certificate. The petitioner has also produced Exhibit P6 details of ongoing works along with the tender. It is stated that petitioner was informed by Exhibit P7 dated 10.3.2020 that his bid has been admitted by the Technical Sanction Committee. However, on 16.6.2020 the petitioner was informed that his bid had been rejected at the technical stage on 15.6.2020. Exhibit P10 information was received by the petitioner. Exhibit P11 summary details would show that three other bidders had been found technically qualified and the bid of the 3[rd] respondent, being the lowest had been accepted. The learned Senior Counsel appearing for the petitioner submits that the rejection of his bid without any reason is completely untenable. It is contended that in spite of the petitioner possessing all qualifications as provided in Exhibit P1, his bid, which was lower than that of the 3[rd ] respondent, had been rejected only to eliminate the petitioner and to award the work to the 3[rd] respondent. 4. A statement has been placed on record by the learned Government Pleader on behalf of respondents 1 and 2. It is stated that Exhibit P1 tender notice specifically provided that the bidder should have successfully completed at least one similar work costing more than 40% of the estimated cost of the work within the last five years. It WP(C).No.12051/2020(F) 4 is stated that all other existing conditions relating to bidding in force in the Kerala Public Works Department would be applicable to this tender unless expressly defined in the bidding document. It is contended that it was therefore amply clear that the provisions of the standard bidding document would be applicable in the case of the present bid also, which fact was perfectly known to the petitioner, who was a Government Contractor. It is stated that the relevant clauses of Part VI of the qualification information clause of the standard bidding document is produced as Exhibit R1(a). It is contended that the standard bidding document specifically provided that bidders shall provide evidence satisfactory to the employer, not withstanding any previously conducted prequalification of potential, of their capacity and adequacy of resources effectively to carry out the subject contract. Details of experience and past performance of bidder of works of a similar nature within the past five years and details of current work in hand and other contractual commitments were specifically called for. 5. It is stated at paragraph 4 of the statement as follows:- “It is submitted that in Exhibit Pl notice inviting tenders it is specifically stated that the bid submitted by the bidders who have successfully completed at least one similar work costing more than 40% of the estimated cost of the work within the last 5 years alone will be considered. Exhibit P2 certificate of experience submitted by the petitioner along with the bid shows that the work viz. construction of Koorikuzhy bridge across Pallickal River in Kunnathoor constituency WP(C).No.12051/2020(F) 5 was not satisfactorily completed by the petitioner. The completion period of the above work was 15 months. The work ought to have been completed on 07.07.2014, was completed only on 06.09.2016 that too after granting five extensions. The delay in completion of the above works evidences that there was no satisfactory completion of the work and therefore as per Exhibit Pl notice inviting tenders, the bid submitted by the petitioner was rightly rejected. It is submitted that the technical evaluation committee have evaluated all the documents submitted by the petitioner and decided to reject the technical bid due to the poor past performance. The contention of the petitioner regarding the cost of the project and its alleged satisfaction has no relevance in view of the fact that there was no satisfactory completion of the work covered by Exhibit P2 experience certificate.” 6. Relying on Exhibit R1(b) extract from the consideration of the technical evaluation report, it is contended that the decision taken to reject the petitioner's bid was an administrative decision taken after considering all relevant aspects and in the absence of any pleading as to mala fides, the writ petition filed by the petitioner is liable to be dismissed with costs. 7. The Learned Senior Govt Pleader places reliance on the decisions of the Apex court in Electron Lighting Systems Private Limited v. Shah Investments Financial Developments and Consultants Pvt. Limited and others [(2015) 15 SCC 137] and a recent decision in The Silppi Constructions Contractors v. Union of India and others [2019 (11) SCALE 592] to contend that it is only in established instances of mala fides and arbitrary exercise of power that this WP(C).No.12051/2020(F) 6 Court would be justified in interfering in a purely administrative function of evaluation of bids by the technical evaluation committee. 8. A reply affidavit has been placed on record by the petitioner. Documents are produced to contend that the petitioner had been granted extensions for completion of the work both in the work referred to in Exhibit P2 and the works in Exhibit P6, taking note of the specific reasons stated by the petitioner and accepting that the petitioner is not liable for the delay. It is contended that the five extensions granted in respect of Exhibit P2 work were granted without imposing any fine or penalty which would go to prove that the delay was on account of factors beyond the petitioner's control and that the rejection of his bid on that ground is completely untenable. 9. I have heard the learned counsel appearing on either side and I have considered the contentions advanced quite in extenso. The statement having been placed on record by the respondents points out that the rejection was due to the evaluation by the Technical Sanction Committee that the experience certificate provided by the petitioner was not satisfactory. This Court is called upon to consider whether interference is warranted in an administrative decision with regard to the qualification of a tenderer. Exhibit P1 WP(C).No.12051/2020(F) 7 specifies that the tenderer should have completed at least one similar work having 40% of the value of the estimated cost of the tender work within the past five years. The petitioner admittedly had produced Exhibit P2 experience certificate. Exhibit P2 would show that the petitioner had completed a work of more than 40% of the value of the estimated cost of the tendered work. However, the statement placed on record by respondents 1 and 2 would go to show that the Technical Sanction Committee had considered Exhibit P2 and had come to the conclusion that the work for which Exhibit P2 experience certificate had been issued was not completed within the time provided for completion in the agreement and had been completed only after grant of five extensions. Since the bid had been rejected at the technical stage itself, the question whether the petitioner's bid was lower than the 3[rd] respondent's bid would not arise for consideration before this Court at all. What is to be considered is the propriety of the rejection of a bid on the ground that the bidder's experience was not satisfactory. The Technical Sanction Committee had apparently considered the material placed on record by the petitioner and had found that the petitioner's experience did not justify the acceptance of his technical bid. In the absence of any substantive allegations of mala fides or extraneous considerations, the decision taken by the evaluation committee not to accept the bid of the petitioner being an administrative decision, I am of the opinion WP(C).No.12051/2020(F) 8 that this Court could not be justified in interfering with the same unless this Court were satisfied that the decision was perverse or was vitiated by clear arbitrariness. - 10.In the facts and circumstances of the instant case, I find no definite pleadings or material to arrive at such a conclusion. Apart from a bland allegation of mala fides, no clear pleadings are on record. The decision of the Technical Sanction Committee which is on record appears to be a reasoned one. In such a situation, this Court would not be justified in substituting its reasoning for that of the duly empowered committee. I am fortified by a long line of decisions of the Apex Court holding that that administrative decisions in the realm of contract can be interfered with only on the limited grounds and of being arbitrary, perverse or vitiated by mala fides. The writ petition fails and is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj WP(C).No.12051/2020(F) 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TENDER DETAILS PUBLISHED BY THE 2ND RESPONDENT IN THE WEBSITE DATED 20/01/2020. EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF EXPERIENCE GIVEN BY THE SUPERINTENDING ENGINEER, (ROADS & BRIDGES), P.W.D., SOUTH CIRCLE, THIRUVANANTHAPURAM DATED 13/12/2016. EXHIBIT P3 TRUE COPY OF THE INCOME TAX RETURN FILED BY THE PETITIONER FOR THE ASSESSMENT YEAR 2019-20 DATED 20/01/2020. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE STATE BANK OF INDIA, KOLLAM DATED 13/02/2020. EXHIBIT P5 TRUE COPY OF THE LIST OF THE WORK DETAILS EXECUTED BY THE PETITIONER DURING THE YEAR 2015 TO 2019.** **EXHIBIT P6 TRUE COPY OF THE LIST OF THE ONGOING WORKS GIVEN BY THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE INFORMATION GIVEN BY THE 2ND RESPONDENT TO THE PETITIONER DATED 10/03/2020 EXHIBIT P8 TRUE COPY OF THE INFORMATION PUBLISHED IN THE WEBSITE OF THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE TENDER SUMMARY REPORT PUBLISHED IN THE WEBSITE OF THE 2ND RESPONDENT ON 15/06/2020. EXHIBIT P10 TRUE COPY OF THE TECHNICAL EVALUATION REPORT DATED 15/06/2020 PUBLISHED IN THE WEBSITE OF THE 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF THE TECHNICAL EVALUATION REPORT DATED 15/06/2020 PUBLISHED IN THE WEBSITE OF THE 2ND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGE OF THE ENDER SHOWING THE AMOUNT QUOTED BY THE PETITIONER. EXHIBIT P13 TRUE COPY OF THE APPLICATION FOR EXTENSION OF TIME FILED BY THE PETITIONER DATED 17.12.2019. EXHIBIT P14 TRUE COPY OF THE LETTER GIVEN BY THE ASSISTANT EXECUTIVE ENGINEER DATED 18.12.2019 FORWARDING EXT.P3 TO THE EXECUTIVE ENGINEER. EXHIBIT P15 TRUE COPY OF THE LETTER WRITTEN BY THE EXECUTIVE ENGINEER TO THE SUPERINTENDING ENGINEER DATED 03.06.2020.** **EXHIBIT P16 TRUE COPY OF THE STATUS OF THE WORK PUBLISHED BY THE GOVERNMENT IN PWD.KERALA.GOV.IN** **EXHIBIT P17 TRUE COPY OF THE LETTER WRITTEN BY THE EXECUTIVE ENGINEER TO THE SUPERINTENDING ENGINEER FOR APPROVAL OF THE INITIAL LEVEL DATED 15.11.2019.** WP(C).No.12051/2020(F) 10 **EXHIBIT P18** **EXHIBIT P19** **EXHIBIT P20** **EXHIBIT P21** **EXHIBIT P22** **TRUE COPY OF THE LETTER WRITTEN BY THE SUPERINTENDING ENGINEER TO THE EXECUTIVE ENGINEER DATED 10.02.2020.** **TRUE COPY OF THE LETTER WRITTEN BY THE SUPERINTENDING ENGINEER TO THE EXECUTIVE ENGINEER DATED 24.02.2020.** **TRUE COPY OF THE LETTER WRITTEN BY THE SUPERINTENDING ENGINEER TO THE EXECUTIVE ENGINEER DATED 15.05.2020.** **TRUE COPY OF THE APPLICATION FOR EXTENSION OF TIME FILED BY THE PETITIONER DATED 23.04.2020.** **TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIOENR TO THE CHIEF ENGINEER, BRIDGES DATED 18.06.2020.** True copy PS to Judge