IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 8738 of 2011(N) ------------------------- PETITIONER(S): --------------- T.V.THOMAS & COMPANY, GOVERNMENT CONTRACTORS, THEKKEKUDIYIL HOUSE, BAPPUJI ROAD,MOOVATTUPUZHA-686661, REPRESENTED BY MANAGING PARTNER BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.R.SADEESAN SMT.DHANYA CHANDRAN SRI.M.V.JOSEPH (ALAPPUZHA) RESPONDENT(S): --------------- 1. THE EXECUTIVE ENGINEER, CENTRAL PUBLIC WORKS DEPARTMENT, THRISSUR DIVISION,MUNDASSERI BUILDING, CHEMBUKAVU,THRISSUR-680020. 2. THE SUPERINTENDING ENGINEER, CENTRAL PUBLIC WORKS DEPARTMENT, NORTH CIRCLE,KALLAI,KOZHIKODE,673003. 3. THE CHIEF ENGINEER,(SOUTH ZONE)III, CENTRAL PUBLIC WORKS DEPARTMENT, FIRST FLOOR "B"WING,KENDRIYA SADAN' KORAMANGALA,BANGLORE-560034. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1-R3 ADV. SMT.GOVINDU.P.RENUKA DEVI (ASG) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J -------------------------------------- W.P.(C) No.8738 OF 2011 -------------------------------------------------- Dated this the 31st day of May 2011 JUDGMENT The petitioner is a contractor, who was awarded the tender in response to Ext.P1 for the construction of road for the BSF campus. There were two tenders including that of the petitioner and another by one K.V.Sankarankutty (who is not a party to the present proceedings) who submitted an experience certificate, which in fact was defective, but omitted to be considered and rejected. The price bid was opened on 25-02-2011, when the bid preferred by K.V.Sankarankutty turned to the lower one. 2. The very same respondents had called another tender for construction of compound wall to the Aligarh Muslim University Campus, Perinthalmanna and the tenders were opened on 28-02-2011. When the tender submitted by the aforesaid K.V.Sankarankutty, who had responded to both the tenders, was rejected for having produced the 'defective experience certificate'. Eventhough the petitioner was not a participant to the second tender, the case of the petitioner is that the experience certificate produced by K.V.Sankarankutty was in respect of an 'ongoing project' and not in respect of a 'completed project' and hence was rejected; which is applicable in respect of the former tender as well. The petitioner contends that the tender submitted by W.P.(C) No.8738/2011 2 K.V.Sankarankutty for the former work should also have been rejected then and there, and in turn the work should have been awarded to the petitioner. Since the grievance projected by the petitioner was not redressed, the present Writ Petition was filed seeking to intercept the steps being pursued. 3. During the course of the proceedings, the petitioner came across the notification issued by the respondents inviting fresh tenders from the parties concerned, stipulating the last date as 02-04-2011 in respect of the very same work. Copy of the said notice has been produced as Ext.P4 along with I.A No.5669/2011 and this Court passed an interim order of 'status quo' which is still continuing. The respondents have filed a statement dated 04-04-2011, followed by a counter affidavit dated 12-04-2011, pointing out the sequence of events. 4. Adv. Smt.Govindu P Renuka Devi (CGC), who presented the matter on behalf of the respondents asserted that there is absolutely no malafide act and that, the steps taken by the respondents are in tune with the provisions of law and not assailable under any circumstances. It is stated that, there was wide disparity between the rates quoted by K.V.Sankarankutty and the petitioner and that, the petitioner cannot be heard to say that his tender, (the sole tender, once K.V.Sankarankutty is disqualified) ought to have been accepted by the respondents. Reference is also made to Clause 13 W.P.(C) No.8738/2011 3 of Ext.P1 general conditions of tender, which reads as follows: “The competent authority on behalf of the President of India does not bind itself to accept the lowest or any other bid and reserves to itself the authority to reject any or all the bids received without the assignment of any reason. All bids in which any of the prescribed condition is not fulfilled or any condition including that of conditional rebate is put forth by the bidders shall be summarily rejected.” Reliance is also sought to be placed on Ext.R1(a) Office Memorandum dated 25-10-2005 issued by the Central Vigilance Commission making it clear that 'negotiation' shall be made only with the lowest tender and as such, the contention of the petitioner that the petitioner should have been invited for negotiation (in spite of being the second lowest) after eliminating K.V.Sankarankutty (by virtue of the alleged defective experience certificate) is not liable to be entertained. The learned counsel also submits that the law has been laid in crystal clear terms by the Apex Court on many an occasion, that no vested right is there to contend that the tender submitted by the party who happens to be the lowest has to be accepted. It is further brought to the notice of this Court that, the idea of the respondents is only to save the public money and that the petitioner is in no way prevented from participating in the 're-tender' and that his claim also will be considered along with that of the others. W.P.(C) No.8738/2011 4 6. The learned counsel for the petitioner submits that in virtue of the interim order passed by this Court, the petitioner could not participate in the 're-tender' and as such, the petitioner might be given an opportunity, since the last date for submission of the tender is over. 7. Considering the facts and circumstances, this Court finds that the purpose of re-tender as pointed out from the part of the respondents is to save public money, in view of the higher rate quoted by the petitioner. As such, the petitioner can also be participated in the said tender. Fresh notification shall be issued in this regard inviting tenders. It is made clear that the notification to be issued by the respondents, stipulating the conditions as contained in Ext.P1/P4 tender notifications, shall also clearly stipulate that the qualification to participate will be analyzed and appreciated, as on the last date of tenders already called for as per Ext.P1, ie, as on 21-02-2011. Writ Petition is disposed of. vdv P.R.RAMACHANDRA MENON, JUDGE