IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 19016 of 2009(V) -------------------------- PETITIONER: ------------------ M/S.CHICAGO CONSTRUCTIONS, CHITHRA LANE, KOCHAR ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM, REP. BY ITS MANAGING PARTNER S.MOHANAKUMAR, S/O.SIVANANDAN, AGED 48 YEARS, MOHANA NIVAS, MOONGODU (P.O), PEYAD, THIRUVANANTHAPURAM. BY ADV. MR. K.S.HARIHARAPUTHRAN MR. GEORGE MATHEW RESPONDENTS: --------------------- 1. STATE OF KERALA, REP.BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, KERALA WATER AUTHORITY, OFFICE OF THE CHIEF ENGINEER (SOUTHERN REGION), THIRUVANANTHAPURAM. 4. THE SUPERINTENDING ENGINEER, PH CIRCLE, KERALA WATER AUTHORITY, KOTTAYAM. 5. ABU MATHEW, KOYIKAL HOUSE, KANIKODE P.O., KOTTAYAM. 6. J & B ENGINEERING COMPANY, KUTTOOR P.O., THIRUVALLA. R1 BY GOVERNMENT PLEADER MR. P.NARAYANAN R2, R3 & R4 BY MRS. AMBIKA DEVI, SC, KWA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.19016 of 2009 -------------------------- Dated this the 20rd July,2009 J U D G M E N T Petitioner, which is registered as a Partnership firm as evidenced by Ext.P1 Partnership Deed, responded to a tender floated by the 4th respondent for the work of Argumentation of Kuttnnad Water Supply Scheme (Phase- 11) design, construction and commissiong of 14 MLD output capacity Water Treatment Plant at Neerettupuram. Ext.P2 contains the instructions to the bidders. Petitioner had produced Ext.P3 certificate along with the tender evidencing the fact that the petitioner had completed the work of 5 MLD Water Treatment Plant in 2007 and Ext.P3 (a) another certificate evidencing the completion of another Water Treatment Plant at Malankavu. Reference is also made to Ext.P4 certificate issued in favour of one of the partners of the firm, Mr.R.Sreenivasan who was also a partner of another firm by name M/s. Sakthi Construction for executing the work W.P ( C) No.19016 of 2009 2 of providing water supply to Periyakulam Municipality by way of construction of 7.30 MLD Water Treatment Plant. Ext.P4 also shows that M/s. Sakthi Construction had constructed another 7.80 Water Treatment Plant at Kalingium, Kolapur, Kunnathur and Uthukuli Town Panchayats. Ext.P4 further would that M/s.Sakthi Construction had constructed 15.438 MLD capacity Water Treatment Plant at Mettupalayam. Petitioner submits that these certificates along with Ext.P5 and P5 (a) certificates relating to the award of 3.5 MLD Water Treatment Plant and Staff Quarters to the petitioner and another Water Treatment Plant with a capacity of 7.5 MLD at Pazhavanangadi shows that the petitioner has sufficient experience in the field. 2. Nevertheless, the petitioner was not prequalified on the ground that it does not have sufficient experience and hence the writ petition praying for appropriate reliefs. 3. A counter affidavit has been filed by the 2nd respondent affirming the stand taken by the Water W.P ( C) No.19016 of 2009 3 Authority that the petitioner is not qualified in terms of the tender notification. Reference is made to the order issued by the Managing Director in this regard. 4. A reply affidavit has been filed by the petitioner. 5. Heard Mr.Hariharaputhran, learned counsel for the petitioner and Smt.Ambika Devi, learned standing counsel for the Water Authority. 6. The entire dispute resolves around clause 7.17.1.2 which deals with the experience required of a tender. Clause 7.17.1.2 in so far it is relevant it is extracted hereunder. “7.17.1.2 Past Experience: 1. It is necessary that the tenderer has executed (commenced and completed similar type of projects in the past five years. The experience of carrying out 50% the size/capacity of the present is required. 2. Information regarding the contractor's experience in similar supplying and laying works /treatment plant shall be furnished in form Q1. 3. Further, following minimum requirements must be satisfied in respect of experience in construction of different units. The tenderer shall give sufficient testimonials in proof of the construction, W.P ( C) No.19016 of 2009 4 and commissioning of different units. 4. In addition to the above requirement, in respect of pipeline works, the tenderer should have experience in pipeline execution works of diameter not less than half the largest diameter of pipes envisaged in this tender in the case of pipelines of diameter larger than 400mm. A minimum length of 25% of the tendered quantity should have been laid for pre-qualification. If the length of the pipeline laid in any single work is less than 500 metres, such works will not be considered for experience. 5(a) In the case of purification/treatment plants of capacity above 4 mld the tenderer shall have executed similar type of works of treatment plants having a minimum of half the capacity of the proposed treatment plant. 5(b) For pipe laying works of any type of pipes of diameter up to 400 mm, except MS pipes and HDPE pipes, no experience will be insisted. In the case of MS pipe laying works, the tenderer shall possess the experience of laying MS pipes of any diameter for a minimum length of 25% of the tendered quantity, to be considered for experience. In the case of HDPE pipelines, the tenderer or his partner shall possess the experience of laying HDPE pipes of length not less than 100m. 6(a) In the case of purification/treatment plants of capacity up to 4 mld, the qualifying experience shall be the experience in construction of similar plant W.P ( C) No.19016 of 2009 5 of any capacity for his sole/partner of the tenderer /firm subject to clause 7.4.1 of this NIT. 6(b) In the case of purification/treatment plants of capacity above 4 mld, the qualifying experience shall be the experience in construction of similar plant of minimum 50% of net output capacity for his sole/partner of the tenderer/firm subject to clause 7.4.1 of this NIT.” 7. The aforementioned clause deals with the past experience, that is required for a tender to be considered as pre-qualified for the work in question. Clause 7.17.1.2 ( 1) states that the tenderer should have executed similar type of projects in the past five years. The Clause then goes on to state that experience, which could only mean experience referred to in the first part, must be carrying out 50% of the size/capacity of the work for which the tender is submitted. There is a dispute as to whether the petitioner had produced requisite certificates of experience along with tender. Respondents submit that such certificates were produced not along with the tender but produced later. Since the question is one relating to the W.P ( C) No.19016 of 2009 6 prequalification of the tenderer and the experience certificates have been considered by the authority, it would be proper to proceed on the premise that the certificates were also available before the tendering authority for the purpose of deciding whether the petitioner is prequalified or not. 8. Ext.P3 is the certificate showing that the petitioner had completed the work of 5MLD Water Treatment Plant in the year 2007. Ext.P3(a) is a similar certificate for the work of 4 MLD Water Treatment Plant. Ext.P4 relates to the experience certificate of M/s. Sakthi Construction and reliance is placed on one of the certificates forming part of Ext.P4 series which shows that M/s. Sakthi Construction had completed 7.30 MLD Water Treatment Plant. Ext.P4 (a) shows that M/s. Sakthi Construction had completed 7.80 MLD Water Treatment Plant in the year 1997. 9. Mr.Hariharaputhran submits that Ext.P3 series certificate will show that the petitioner by itself had the requisite experience in a similar type of work. Though the W.P ( C) No.19016 of 2009 7 capacity of the water treatment plant referred to in Ext.P3 and P3 (a) would not be 50% of the Water Treatment Plant, which is the subject matter of the present tender. He further submits that one of the partners of the petitioner firm had done the work of 7.80 MLD Water Treatment Plant in the year 1997. That should also be treated as sufficient experience for the purpose of clause 7.17.1.2. He further submits that the experience of carrying out 50% of the size/capacity of the present tender has been acquired by one of the partners of the present firm Sri.T. Sreenivasan, who was also a partner of Sakthi Construction in relation to whom Ext.P5 has been issued. He submits that therefore both parts of the aforementioned clause has been satisfied by the petitioner. Consequently, the petitioner should have been treated as pre-qualified. 10. Ms. Ambika Devi on the other hand submits that the first condition in clause 7.17.1.2 relates to the past experience, to be satisfied by the tenderer. Tenderer W.P ( C) No.19016 of 2009 8 should have executed similar type of projects in this behalf. This is the experience required. But as to the nature of the experience so required, the same is mentioned in the second part of Ext.P2. In other words, she submits that both the limbs of the first clause have to be read conjunctively , as a part of one clause specifying the experience required of a tender. 11. It is further submitted that clause 6 (b) coming under 7.17.1.2. would show that in the case of purification/ treatment plants of capacity above 4 mld, “the qualifying experience shall be the experience in construction of similar plant of minimum 50% of net out capacity” of either the tenderer or the partner subject to clause 7.4.1 of the NIT. 12. I have considered clause 7.17.1 in the light of other clauses in the tender notification. I am of the view that the stand taken by the Water Authority deserves to be accepted. The requisites under clause 7.17.1.2 of Ext.P2 deals with past experience namely experience acquired by W.P ( C) No.19016 of 2009 9 the tenderer. It seems that the tenderer should have executed similar type of projects in the past five years. It is also the mentioned that the word 'executed' means commenced and completed. Sub clause 6(b) coming under the main clause speaks about Water Treatment Plant above capacity of 4 MLD and there it is made clear in 6 (a) that the qualifying experience shall be the experience in construction of similar plant of minimum 50% of net output capacity. It therefore seems to be quite clear that the experience referred to in the first part of sub clause 1, particularly coming under the category of similar type of projects in the past five years should have been acquired in atleast 50% of the size/ capacity of the plant which is under consideration. 13. The word qualifying experience as occurring in clause 6 (b) is the length of the qualifying experience which is acquired during the past five years, in similar types of projects. The plant, which has been constructed and which is being projected and relied on by the tenderer for the purpose of past experience, should have therefore W.P ( C) No.19016 of 2009 10 been completed, as contemplated by the first part of the clause, namely during the past five years. Once the position is so accepted, it becomes clear that the qualifying experience that is projected by the petitioner, deriving strength as it were, from the construction of 7.30 MLD plant by M/s. Sakthi Construction which is stated to be the partnership firm of which one of the partners of the petitioner firm Mr.Sreenivasan is also a part of, will not satisfy the requirements of the tender. It relates to the work which was completed in the year 1997, well beyond the period of five years which is mentioned in the tender notification. 14. Qualifications otherwise acquired by the petitioner as evidenced by Ext.s P3 and P3 (a) are not of the required capacity. 15. Mr.Hariharaputhran submits that the Water Authority itself had awarded another work to the petitioner for the construction of Water Treatment Plant with a capacity of 15.5 MLD as evidenced by Ext.P5(b). The W.P ( C) No.19016 of 2009 11 tender conditions in the case of the said work are similar to the present tender also. He submits that the experience acquired by M/s. Sakthi Construction and relied on in the present case was treated as sufficient by the Water Authority for the said work of a larger capacity. Therefore there is no reason why a different view should have been adopted in this case. 16. Smt. Ambika devi submits that, as evidenced by Ext. P5(b), the award of work of such Water Treatment Plant in favour of the petitioner was made by an empowered committee. Moreover that was a case where two tenderers including the petitioner herein and another tenderer had alone responded. The other tenderer had not submitted the tender forms in the proper form. Therefore the work was awarded in favour of the petitioner. Further I do not think that Ext.P5 should lead to such a conclusion in the present case also for more than one reason. Firstly there is nothing on record to show that the manner in which the clause relating to past experience should be construed was considered by the empowered committee. After all it is W.P ( C) No.19016 of 2009 12 quite possible that a dispute regarding the sufficiency of experience claimed by the petitioner could have arisen only in the course of the present tender. The question is whether on a reading of clauses in the tender notification, the view taken by the Water Authority is vulnerable to judicial review by this Court. That is to be decided with reference to the clauses in the tender notification. Secondly assuming that this fact had been overlooked earlier, it does not by itself enable the petitioner to claim possession of the requisite past experience if otherwise no such experience could be concluded on a reading of the tender notification. 17. Thirdly, the work awarded by Ext.P5 was awarded only in February 2009 and obviously such work cannot be relied on by the petitioner for the purpose of demonstrating past experience within the meaning of clauses 7.17.1.2 of Ext.P2 tender notification as only the works which are commenced and completed would qualify for the purpose of past experience within the meaning of the clause. W.P ( C) No.19016 of 2009 13 18. For all these reasons mentioned above, I am of the view that the stand taken by the Water Authority as evidenced by Ext.R2 does not warrant any interference by this Court. It is neither unreasonable or perverse. It is a reasonable view on the construction of the clauses in the tender notification. I do not find any grounds to interefere with the same under Art.226 of the Constitution of India. Writ petition is therefore dismissed. (V.GIRI,JUDGE) ma W.P ( C) No.19016 of 2009 14 W.P ( C) No.19016 of 2009 15 W.P ( C) No.19016 of 2009 16 W.P ( C) No.19016 of 2009 17