IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No. 1044 of 2009(Y) ---------------------------------- PETITIONER(S): -------------------- A.IBRAHIM KUTTY, GOVERNMENT CONTRACTOR, VALIYATH HOUSE, PUTHENCHANTHA P.O., CHAVARA, KOLLAM - 691 587. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.K.BABU THOMAS RESPONDENT(S): ---------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE CHIEF ENGINEERS COMMITTEE FOR PRE-QUALIFICATION OF CONTRACTORS REP. BY ITS CONVENER & CHIEF ENGINEER, IRRIGATION & GENERAL ADMINISTRATION, PUBLIC OFFICE, TRIVANDRUM. 3. THE SUPERINTENDING ENGINEER, IRRIGATION DEPARTMENT, PROJECT CIRCLE, KANNUR - 678 002. GOVERNMENT PLEADER SRI.N.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/01/2009,THE COURT ON 19/01/2009 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ============== W.P.(C) NO. 1044 OF 2009 (Y) ==================== Dated this the 19th day of January, 2009 J U D G M E N T The prayer in this writ petition is to quash Ext.P4 and to direct the respondents to pre qualify the petitioner to participate in the prize bid for the work notified by Ext.P1. 2. Briefly stated, the facts of the case are that in response to Ext.P1 notice published by the 3rd respondent inviting Expression of Interest for the work of “construction of Regulator cum Bridge at Chamaravattom across Bharathapuzha for 978m with shutters and approach road for 612m, including mechanical and electrical works with NABARD assistance”, petitioner submitted Ext.P3 bid. The technical bids were evaluated by the 2nd respondent Committee, which met on 2/1/2009 and Ext.P4 is the minutes of the meeting of the Committee. It is stated in Ext.P4 that the petitioner was not pre qualified for the reason that the audited balance sheet as on 31/3/2008 was not furnished and therefore the evaluation of the financial capacity of the petitioner was impossible. It is this decision which is under challenge in this writ petition. 3. Thus, the non production of the audited balance sheet as on 31/3/2008 is the reason for not pre qualifying the petitioner. Going by the WPC 1044/09 :2 : averments in para 5 of the writ petition itself, it is the admitted case of the petitioner that the audited balance sheet as on 31/3/2008 was being prepared by the Chartered Accountant and the petitioner produced the audited balance sheet only on 8/1/2009 and a copy of which has been produced as Ext.P5. In the counter affidavit also, it has been stated by the 1st respondent that the petitioner had not produced the audited balance sheet for 2007-08 and therefore, it was impossible for the 3rd respondent to assess the financial capacity of the petitioner. 4. Thus, the question that arises for consideration is whether in the absence of an audited balance sheet as on 31/3/2008, the decision of the 2nd respondent as reflected in Ext.P4 calls for interference. The tender document has been produced by the petitioner as Ext.P3 and in terms of the conditions specified in Ext.P3, the production of audited balance sheet and profit and loss account for the past three years is a mandatory condition. While it is a mandatory condition to produce these documents and as admitted in para 5 of the writ petition, it has not been produced by the petitioner, Senior Counsel for the petitioner contended that in terms of Ext.P2 Government order dated 9/6/99, all that a tenderer need to produce was only a financial statement and that the same was produced. WPC 1044/09 :3 : I am not persuaded to accept this submission for reasons more than one. 5. First of all, the obligation of the tenderers to produce documents has to be decided based on the conditions specified in the tender document. Going by the tender document, production of audited balance sheet was a mandatory condition. If that be so, even if there is a provision to the contrary in Ext.P2 Government order, that will not exonerate the tenderer from meeting the requirements of the tender conditions. Even otherwise, going by Clause 9.14(g) of Ext.P2 Government order itself, production of audited balance sheet is a mandatory condition. Therefore, this contention of the learned counsel for the petitioner is only to be rejected and I do so. 6. Then, it was contended that audited balance sheet was produced and that what was produced was not a sealed and certified one and therefore the decision not to pre qualify the petitioner was unjustified. This contention also does not deserve acceptance for the reason that going by the averments in the counter affidavit, which has not been contradicted by any reply affidavit, audited balance sheet as on 31.3.2008 was not produced at all. That apart, there is no pleading in this writ petition to the effect that the petitioner had produced audited balance WPC 1044/09 :4 : sheet and that the only defect was that it was not sealed or certified. 7. Then, it was contended by the Senior Counsel for the petitioner that Ext.P4 minutes of the meeting of the Committee was prepared only on 8/1/2009 and that by the time it was prepared, the petitioner had produced Ext.P5. This again cannot be accepted, for the reason that there is nothing on record to suggest that Ext.P4 minutes of the meeting of the committee was prepared only on 8/1/2009 while the meeting took place on 2/1/2009. Further the argument that Ext.P4 is a pre dated document also does not find a place anywhere in the pleadings in the writ petition. 8. Then it was contended by the Senior Counsel for the petitioner that the petitioner has been discriminated. This plea was raised mainly referring to Ext.P4. Counsel contended that in the cases of M/s. Patel Engineering Ltd, M/s.Nagarjuna Construction Company Ltd and M/s IVRCL Infrastructure and Projects Ltd, tender conditions were relaxed. According to him, they were permitted to produce documents subsequent to the tender committee meeting on 2/1/2009 and that petitioner also should have been given such an opportunity. 9. In so far as M/s.Patel Engineering Ltd is concerned, all that is WPC 1044/09 :5 : stated in Ext.P4 is that they had produced a power of attorney dated 24th October 2005 and that the tender committee directed that the 3rd respondent should verify the power of attorney and confirm that the power of attorney holder is still an employee of the company. This in my view does not amount to any relaxation of the tender conditions. 10. In so far as M/s.Nagarjuna Construction company Ltd is concerned, it is stated in Ext.P4 that their bid was a joint venture one and the percentage of involvement in the joint venture is to be confirmed by the 3rd respondent. In so far as this argument raised by the petitioner is concerned, the submission of the learned Government Pleader is that going by the tender notice, there was no requirement for the tenderer to make available documents disclosing their percentage of involvement in the case of a joint venture. It is stated that it was only an additional information that the Tender committee wanted to obtain from the tenderer. As stated by the learned Government Pleader, this was only an additional information which the tender Committee wanted. If that be so, the Committee cannot be faulted for calling upon the tenderer to produce such additional information on the ground it has relaxed the tender conditions in favour of the aforesaid tenderer. WPC 1044/09 :6 : 11. As far as M/s IVRCL Infrastructure and Projects Ltd is concerned, Ext.P4 states that the firm has to produce technical bid issued to them before opening of the financial bid and that the 3rd respondent is to ensure this. This part of Ext.P4 has been explained in the counter affidavit. It is stated that in terms of the conditions of the tender, the Contractor has to submit the bid documents in triplicate including the original documents. It is stated that M/s.IVRCL Infrastructure and Projects Ltd has submitted three photocopies of the bid documents with all details necessary for evaluation of the documents and that only the original document issued to them was not produced. It is stated that on the basis of the documents produced by M/s.IVRCL, their eligibility to be pre qualified was assessed and that the non production of the original document, which according to them was produced along with the prize bid, did not vitiate the evaluation process. From the explanation thus offered by the respondents in the counter affidavit, which has not been contradicted by any reply affidavit, it can be seen that all that was lacking in the case of M/s.IVRCL was the original bid document and it is not as though the IVRCL had not submitted a technical bid at all, as contended by the Senior Counsel for the petitioner. WPC 1044/09 :7 : 12. In the light of the above factual position, I am not persuaded to hold that the tender conditions were relaxed in favour of the aforesaid tenderers. Therefore, the claim of the petitioner that the respondents having relaxed the tender conditions in the case of the aforesaid tenderers, should not have rejected his bid for non production of audited balance sheet lacks substance and is rejected. 13. Admittedly, against the mandatory conditions of the tender, the petitioner did not produce the audited balance sheet as on 31/3/2008 along with the tender submitted and going by the pleadings in the writ petition itself, it was produced only on 8/1/2009, which is much after the evaluation process was over on 2.1.2009. Therefore, even as on 2/1/2009, the bid was defective and if that be so, Ext.P4 decision taken by the 2nd respondent on 2.1.2009 not to pre qualify the petitioner deserves to be upheld. Writ petition merits only dismissal and I do so. ANTONY DOMINIC, JUDGE Rp