IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 WA.No. 529 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25925/2008 Dated 04/02/2009 .................... APPELLANT(S): -------------- 1. J & S CONSTRUCTION, 39/5449, 2ND FLOOR, THONDAYIL, SOUTH BRIDGE AVENUE ROAD, PANAMPILLY NAGAR, COCHIN -36, REP. BY PARTNERS. 2. P.B. SHERIFF, AGED 42 YEARS, S/O. BASHEER, RESIDING AT FLAT NO. B-3, JAWAHAR JEWEL APARTMENT, JAWAHAR NAGAR, KADAVANTHRARA, KOCHI -20. 3. V.J. JOSEPH, AGED 48 YEARS, S/O.JOSEPH, RESIDING AT 33/2346 B, VILANGUPARA, GEETHANJALI ROAD, VYTTILA P.O., KOCHI -19. BY ADV. SRI.MURALI PURUSHOTHAMAN, SRI.DEEPU LAL MOHAN SRI.NINU M.DAS, SMT.LEENA MURALI RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM -14. 2. THE CHIEF ENGINEER ( B.O.T PROJECTS) KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., TRANS TOWERS, VAZHUTHACAUD,THIRUVANANTHAPURAM -14. 3. M/S K.V. JOSEPH AND SONS, NGINEERING CONSTRUCTIONS, EDAPALLY, KOCHI -24, REP. BY ITS MANAGING PARTNER K.J. KURIAKOSE. R1 & 2 BY ADVS. M/S. K.R.B. KAIMAL (SR.) & B. UNNIKRISHNA KAIMAL ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) FOR R3 SRI.K.P.CHANDRASEKHAR FOR R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 529 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of March, 2009 JUDGMENT Balakrishnan Nair, J. The appellants are the writ petitioners. The respondents herein were the respondents in the writ petition. 2. The brief facts of the case are the following. The first respondent invited tenders for undertaking and executing the work of “civil construction, water supply, sanitation and other allied works of a shopping complex, in the Kerala State Road Transport Corporation's bus station at Kozhikode. The notification, inviting the tenders, was published on 25.9.2008. The first appellant is a Partnership firm and appellants 2 and 3 are its Partners. They formed the partnership on 15.7.2008. The firm submitted its tender for the above work. Some time after the submission of the tenders, the first appellant was served with Ext.P1 communication by the second respondent, calling W.A.No. 529 of 2009 2 upon it to furnish bank guarantee for certain amounts and also to give the details of Overseers/Supervisors/Work Superintendents, who were to supervise the work. The bank guarantee was furnished as per Ext.P2 and other details called for were furnished as per Ext.P3. Later, the appellants came to know that one of the tenderers was being called for negotiation for award of the work. The first appellant was not informed of the negotiation. In the above factual background, the writ petition was filed. This Court passed an interim order on 28.8.2008, that the award of the contract will be subject to the result of the Writ Petition. 3. While so, the third respondent got itself impleaded claiming that it is being considered for award of the work and because of the interim order passed by this Court, the proceedings are not being finalised. The first respondent resisted the Writ Petition, by filing a counter affidavit, stating that the first appellant firm is a recently formed firm and as the experience of the Partners cannot be reckoned, the firm is disqualified for submission of the tender. Therefore, its technical bid was rejected and for that reason, the price bid submitted was not opened. W.A.No. 529 of 2009 3 4. The learned Single Judge considered the rival submissions. It was found that the ground, based on which the appellants' technical bid was rejected, was unsustainable, in view of the decision of the Apex Court, in New Horizons Limited v. Union of India ((1995) 1 SCC 478). But the learned Judge, considering Ext.P4, which was produced along with the reply affidavit of the appellants/petitioners, held that the experience disclosed by the said certificate is not sufficient for the purpose of clause (b) of condition No.2 of Ext.R1(b). On that ground, the Writ Petition was dismissed. The learned Judge proceeded on the footing that the agreement for the work should also have been executed within the five year period mentioned in the tender conditions. Since, admittedly, the agreement was executed in 1998 - 99, the qualification gained by execution of that work will not help the appellants, it was held. 5. Feeling aggrieved by the decision of the learned Single Judge, this appeal is filed. Along with the Appeal Memorandum, the appellants have produced Annex.A, experience certificate issued by the Executive Engineer, Kerala Public Works Department, Buildings Division, Kozhikode. The same would show that the work mentioned W.A.No. 529 of 2009 4 in Ext.P4 was completed on 20.9.2006. Relying on the said certificate, the learned counsel for the appellants Mr. Murali Purushothaman submitted that what is relevant is the completion of the work. Even assuming that the agreement is executed beyond the five year period, it is sufficient if the work is executed between 31.8.2003 and 31.8.2008. Since Ext.P4 was part of the tender documents, the first appellant's price bid also should have been considered, it is submitted. 6. The learned Senior counsel Mr. K.B.R. Kaimal, appearing for respondents 1 and 2, submitted that the tender documents down loaded from the website did not contain Ext.P4. It is produced for the first time before the learned Single Judge. Even assuming that Ext.P4 was part of the tender documents, it will not disclose that the appellants have completed the work after 31.8.2003. As per the tender conditions, the first appellant should have submitted proof of its qualifications. Having failed to do that, though the first respondent rejected the tender on another ground, its tender was not liable to be accepted, it is contended. W.A.No. 529 of 2009 5 7. We considered the pleadings and materials on record and also the rival submissions made at the Bar. We also heard Shri.Santhosh Kumar, learned counsel appearing for the third respondent. 8. The relevant condition for award of the contract is, condition No.2 of Ext.R1(b), the relevant portion of which is extracted below for convenient reference. “(b) List of successfully completed similar works during the last 5 years ending last day of the month previous to the one in which tenders are invited along with proof, as per the following: i) Three similar completed works costing not less than the amount equal to 15% of the estimated P.A.C. OR ii) Two similar completed works costing not less than the amount equal to 20% of the estimated P.A.C. OR iii) One similar completed work costing not less than the amount equal to 35% of the estimated P.A.C.” Going by the above tender condition, it is not necessary that the execution of the agreement for the work concerned should be within the 5 year period. But the completion of the work must be between W.A.No. 529 of 2009 6 31.8.2003 and 31.8.2008. Even assuming that Ext.P4 was part of the tender documents, the same would not show when the work was actually completed. It would only show that the work was completed before 30.11.2006, the date of the certificate. It may be before 31.8.2003 or after 31.3.2008. So, Ext.P4 cannot be taken as sufficient proof of the qualification of the first appellant. Therefore, we find no reason to interfere with the rejection of the technical bid of the first appellant. Though for a different reason, we affirm the decision of the learned Single Judge. 9. In the result, the Writ Appeal fails and it is dismissed. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm