Sunilkumar S vs Director, Directorate of Sports & Youth Affairs; Chief Engineer, Sports Kerala Foundation; Shibin R.E.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA,** ## **1944** ## **WP(C) NO. 30080 OF 2022** ## **PETITIONER/S:** SUNILKUMAR S AGED 52 YEARS S/O SANKARA PILLA, ALANKARATHIL, KALLAMPALAM P.O, THIRUVANANTHAPURAM - 695605 . BY ADVS. J.JULIAN XAVIER FIROZ K.ROBIN ANJANA RAM NIRMAL KURIEN EAPEN ## **RESPONDENT/S:** 1 DIRECTOR, DIRECTORATE OF SPORTS & YOUTH AFFAIRS, VELLAYAMBALAM, THIRUVANANTHAPURAM-695010 2 CHIEF ENGINEER, SPORTS KERALA FOUNDATION, JIMMY GEORGE INDOOR STADIUM, VELLAYAMBALAM, THIRUVANANTHAPURAM695010. 3 SHIBIN R.E, THATTARASSERI, THEKKINKARA, PUTHEN VEED, VATTAVILA, KEEZHAKOLLA, THIRUVANANTHAPURAM PIN695132. BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ## **OTHER PRESENT:** GP RIYAL DEVASSY;SC FOR SPORTS KERALA FOUNDATION P.U.SHAILAJAN ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** ## **11.11.2022, THE COURT ON 17.11.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.30080 of 2022 -2- ## **JUDGMENT** Dated this the 17[th] day of November, 2022 The petitioner, an A class contractor, had participated in the tender invited by the second respondent for the work, “construction of compound wall at the proposed centre for G.V.Raja Sports School at Meenamkulam – balance work”. As per Ext.P2 tender document, the last date for submission of bids was 05.09.2022 and tender was to be opened on 06.09.2022. Ext.P2 required the bidders to submit their bid and filled up documents online, using their Digital Signature Certificate. As per Clause 4.3 of Ext.P2, the hard copies of tender documents should have reached the office of the tender inviting authority before the opening date of tender. Along with the duly filled tender form, the bidders are required to upload scanned copies of the documents detailed in Ext.P2, which include ## W.P.(C) No.30080 of 2022 -3- the duly filled and signed copies of certain documents also. Altogether 9 bidders participated in the tender and the bids were opened on 06.09.2022. Thereupon, the third respondent was declared to be lowest tenderer and petitioner, the second lowest. As the tender submitted by the third respondent was incomplete, the petitioner requested the second respondent to cancel the third respondent's tender and award the work to the petitioner. In the representation, it was pointed out that the third respondent's tender was defective for the following reasons; _“1. Preliminary agreement not duly filled._ _2. Scanned copies of signed affidavit not submitted online._ _3. Scanned copies of signed Integrity pact certificate not submitted online._ _4. Scanned copies of signed requisition for e-payment not submitted online._ _5. Form of tender not duly filled.”_ It was also informed that the above defects are ## W.P.(C) No.30080 of 2022 -4- not minor defects as mentioned in Clause 2009.2 of the PWD Manual. In spite of the objection, the third respondent was permitted to cure the defects and submit the filled up forms and declarations on 13.09.2022, prior to the documents being placed before the tender evaluation committee. Immediately, on being informed about this illegality, the petitioner sent a letter alleging that the procedure adopted is patently illegal. The petitioner also stated about his willingness to execute the work at the rate quoted by the third respondent. In spite of the fair stand taken by the petitioner, the second respondent reiterated its stand in Ext.P9. Aggrieved, this writ petition is filed seeking the following reliefs; _“i. To call for the records_ _connected with case leading to Exts.P7 and P9 and quash Exts.P7 and P9 to the extent it permitted the 3rd respondent to cure the defects while submitting e-_ W.P.(C) No.30080 of 2022 -5- _tender for the work as per Ext.P1._ _ii. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent not to include the tender submitted by the 3rd respondent for tabulation since the defects at the time of e-filing the tender by the 3rd respondent is not minor in nature._ _iii. Direct the 2nd respondent to enter into agreement for work with the 2nd lowest bidder as the bid submitted by the 2[nd] lowest bidder is without any defect._ _iv. Alternatively direct the 2nd respondent to consider and pass orders on Exts.P4 and P8 before entering into any agreement for carrying out the work viz. 'Construction of Compound wall at the proposed center of excellence for G.V Raja Sports School at Meenamkulam - Balance work' with the 1st lowest bidder.”_ 2. Adv.Julian Xavier, learned Counsel for the petitioner, contended that, both tenderers and the tender inviting authority are bound by the terms of the tender document. As per Clause ## W.P.(C) No.30080 of 2022 -6- 4.3 of the tender document, the bidders are required to download and fill the tender documents and thereafter, upload those documents using the tenderer's Digital Signature Certificate. It is also specified in the above clause that hard copies should reach the office of the Sports Kerala Foundation before the opening date of tender. Among the documents uploaded by the third respondent, the preliminary agreement did not contain even essential details like names of the parties, the notification number, date and amount of earnest money deposited. In short, an unfilled agreement with only the signature of the third respondent was uploaded. Likewise, the tender form was also not properly filled up. Further, the Integrity Pact Certificate and requisition for e-payment were not submitted online. As such, the third respondent's bid was liable to be rejected outright as it was not a substantially responsive W.P.(C) No.30080 of 2022 -7- bid. In this regard, attention is drawn to Clause 5.4.2, which reads as under; _“5.4.2. A substantially_ _responsive bid is one which conforms to all the terms, conditions, and requirements of the bidding documents, without material deviation or reservation. A material deviation or reservation is one a. which affects in any substantial way the scope, quality, or performance of the Works; b. which limits in any substantial way, inconsistent with the bidding documents, the Employer's rights or the Bidder's obligations under the Contract; or_ _c. whose rectification would affect unfairly the competitive position of other Bidders presenting substantially responsive Bids.”_ Reference is also made to Clause 5.4.4 which stipulates that non-submission of legible or required documents or evidences may render the bid non-responsive. Further, as per Clause 6.1, the agreement authority can award the contract only to a bidder whose bid has been determined to ## W.P.(C) No.30080 of 2022 -8- be substantially responsive and who has offered the lowest evaluated price. 3. Finally, it is submitted that an identical question was considered by this Court, and in Ext.P10 judgment, it was held that failure to submit a properly filled up preliminary agreement is not a curable minor defect. It is submitted that contrary to the stipulations in the agreement, the third respondent was permitted to correct the mistakes after the bids were opened, which fact is admitted in Exts.P7 and P9 communications. As such, the entire procedure by which the third respondent was awarded the contract is arbitrary and illegal. 4. Adv.P.U.Shailajan, learned Standing Counsel appearing for the second respondent submitted that the main reason for awarding the contract to the third respondent was that his bid was for Rs.42,99,996/-, whereas the petitioner had quoted Rs.43,64,940/-. As such, there is a ## W.P.(C) No.30080 of 2022 -9- difference of about Rs.64,944/- between the two tenders. Considering that public money is being expended, the third respondent was permitted to cure the defects while submitting the hard copies of the tender documents and also to fill up certain blank spaces in the documents. The bid was thereafter submitted before the tender evaluating committee and the Committee found it to be a responsive bid. Accordingly, decision was taken to award the work to the third respondent. It is contended that the minor defects mentioned Clause 2009.2 of the PWD Manual is not exhaustive, as the term used is 'including'. Reference is made to the decision in _**Ramala**_ ## _**Sahkari Chini Mills Ltd, UP v Commissioner,**_ _**- Central Excise, Meerut I [(2010) 14 SCC 744]**_ to point out that generally the word 'include' should be given a wide interpretation, since, by employing the said word, the legislature intends W.P.(C) No.30080 of 2022 -10- to bring in, by legal fiction, something within the accepted connotation of the substantive part. Taken in such a manner, the omission to file a completely filled up preliminary agreement and tender form can also be treated as a minor defect falling under Clause 2009.2. Hence, the tender inviting authority had every right to permit the third respondent to cure the defect and to accept the tender. 5. Adv.K.K.Dheerendrakrishnan, learned Counsel appearing for the third respondent adopted the arguments advanced by the Standing Counsel and further contended that the third respondent being the lowest tenderer and the tender evaluation committee having approved the lowest bid, no interference is warranted in exercise of the power of judicial review vested with this Court. In contractual matters, it is for the tender inviting authority to decide upon the acceptance or otherwise of bids and scope for ## W.P.(C) No.30080 of 2022 -11- interference under Article 226 is extremely limited. 6. The fact that the preliminary agreement submitted by the third respondent did not contain even the essential details cannot be disputed in the light of Ext.P3 copy of the agreement produced by the petitioner. A perusal of Ext.P3 shows that, except the third respondent's signature at the end of the document, no other detail was entered. With respect to the other defective documents also, there is no specific denial in the counter affidavit filed by either the second respondent or the third respondent. The contention that the hard copies of the documents containing the essential details were submitted on time cannot also be countenanced since Clause 4.3 and 4.8.1 specifically mandate that the hard copy should reach the office of the Sports Kerala Foundation before the opening date of tender. The tender opening date being ## W.P.(C) No.30080 of 2022 ## -12- 06.09.2022, the hard copies should have reached the second respondent's office on 05.09.2022. The above aspect needs no further deliberation in view of the admission in the counter affidavit of the second respondent that the last date to submit the tender was 05.09.2022 at 3.00 p.m and the third respondent submitted the hard copies of tender documents before opening the tender on 06.09.2022. As such, the tender documents submitted beyond the stipulated time could not have been accepted and acted upon. 7. The illegality is further compounded by the fact that even the hard copies were found defective and the third respondent provided a further opportunity to cure those defects. Availing that opportunity, the defects were cured and the hard copies re-submitted only on 13.09.2022. As held by this Court in Ext.P10 judgment, submission of a preliminary agreement without even the essential details cannot be ## W.P.(C) No.30080 of 2022 -13- considered as a minor defect. It can unhesitatingly be held that the submission of a preliminary agreement with only the signature of the bidder is a major defect. Even the inclusive manner in which Clause 2009.2 is worded does not permit acceptance of such a preliminary agreement. The submission of hard copies of the documents is not an excuse to accept the bid, since the hard copies were filed after expiry of the time stipulated in the tender document. The second respondent went further ahead and permitted the third respondent to cure the defect even after belated submission of the hard copies of the documents. The liberty available to an employer in contractual matters cannot be misused to such an extent. Public authorities entering into contracts are required to act in a just, fair and transparent manner and their action must be free from the vice of arbitrariness and must also be in conformity with the provisions of W.P.(C) No.30080 of 2022 **==> picture [23 x 8] intentionally omitted <==** Article 14 of the Constitution. In such circumstances, the patent illegality committed by the second respondent warrants interference, even in exercise of the limited jurisdiction vested with this Court in contractual matters. In the result, the writ petition is allowed. The award of tender based on Exts.P1 and P2 in favour of the third respondent is set aside. The second respondent is directed to award the work to the petitioner, who is admittedly the next lowest bidder. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.30080 of 2022 -15- ## **APPENDIX OF WP(C) 30080/2022** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF THE NOTICE INVITING| ||TENDER NO.C4197/21/SKF DATED| ||27.08.2022 ISSUED BY 2ND RESPONDENT.| |Exhibit P2|TRUE COPY OF RELEVANT PAGES OF TENDER| ||DOCUMENT PUBLISHED ALONG WITH EXT.P1.| |Exhibit P3|TRUE COPY OF THE UNFILLED PRELIMINARY| ||AGREEMENT, STATED TO BE THAT OF THE| ||3RD RESPONDENT, RECEIVED FROM THE WEB| ||SITE .| |Exhibit P4|TRUE COPY OF THE OBJECTION DATED| ||06.09.2022 SUBMITTED BY THE PETITIONER| ||BEFORE THE 2ND RESPONDENT .| |Exhibit P5|RUE COPY OF THE GO (P) NO. 13/2012/PWD| ||DATED 01.02.2012 ISSUED BY THE| ||SECRETARY, PUBLIC WORKS (H) DEPARTMENT| ||.| |Exhibit P6|RUE COPY OF THE RELEVANT PAGES OF PWD| ||MANUAL REVISED EDITION 2012.| |Exhibit P7|TRUE COPY OF THE EMAIL DATED| ||14.09.2022 ISSUED BY THE 2ND| ||RESPONDENT TO PETITIONER.| |Exhibit P8|TRUE COPY OF THE REPRESENTATION DATED| ||16.09.2022 SUBMITTED BY THE PETITIONER| ||BEFORE THE 2ND RESPONDENT.| |Exhibit P9|TRUE COPY OF THE EMAIL DATED| ||16.09.2022 ISSUED BY THE 2ND| ||RESPONDENT TO PETITIONER.| |Exhibit P10|TRUE COPY OF THE JUDGMENT DATED| ||05.09.2020 IN W.P (C) NO.20481/2020.| |RESPONDENT EXHIBITS|| |EXHIBIT R2(c)|True copy of the signed affidavit| ||submitted along with the hard copy of| ||the tender on 6.9.2022| |EXHIBIT R2(d)|True copy of the signed integrity pact| ||certificate submitted along with the| ||hard copy of the tender on 6.9.2022| -16- ## W.P.(C) No.30080 of 2022 EXHIBIT R2(e) EXHIBIT R2(f) Legibile copy of Ext.R2( f) EXHIBIT R2(b) EXHIBIT R2(a) True copy of the signed requisition for re-payment submitted along with the hard copy of the tender on 6.9.2022 True copy of the documents produced by the 3rd respondent on 14.9.2022 Legibile copy of Ext.R2( f) true copy of the duly filled preliminary agreement submitted by the 3rd respondent along with the hard copy of the tender on 6.9.2022 true copy of the relevant pages of the tender submitted by the 3rd respondent through online