IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 35534 of 2008(E) -------------------------------------- PETITIONER: ------------------- M/S.CONCORD CONSTRUCTION COMPANY, 35/1469, G1, RATHNA GARDENS, SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI-682 025.REP: BY ITS MANAGING PARTNER P.P.AJITH KUMAR. BY ADVS. MR.MURALI PURUSHOTHAMAN, MR.DEEPU LAL MOHAN, SMT. LEENA MURALI. RESPONDENTS: ----------------------- 1. THE SUPERINTENDING ENGINEER, PUBLIC WORKS NATIONAL HIGHWAY (CENTRAL)CIRCLE, KOCHI-682019. 2. THE CHIEF ENGINEER'S TENDER COMMITTEE FOR PREQUALIFICATION OF CONTRACTORS, REPRESENTED BY THE CHIEF ENGINEER, PWD, NATIONAL HIGHWAY, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP; BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. SREE DHANYA CONSTRUCTIONS, REPRESENTED BY ITS MANAGING PARTNER, SASTHAMANGALAM, OPP.INDIRA BHAVAN, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR. P.N. SANTHOSH, R4 BY ADVS. MR.A.N.RAJAN BABU, MR.P.GOPALAKRISHNAN (MVA), MR.A.R.EASWAR LAL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J. -------------------------------- W.P.(C) NO. 35534 OF 2008 (E) ------------------------------------------------------ Dated this the 28th day of January, 2009 J U D G M E N T In response to Exhibit P5 notice inviting tenders issued by the first respondent, the petitioner, a registered partnership firm, submitted application for pre-qualification and tender documents. Along with the application, petitioner submitted experience certificate of a partner of the firm, financial statement of a partner and the bank guarantee in the name of the Managing Partner of the firm. They were not pre- qualified and the reason stated in paragraph 3 of the counter affidavit is that in terms of the provisions of Exhibit P5 tender notice, each bidder in his name should have achieved a minimum annual financial turnover and required experience. It is stated that the documents submitted by the petitioner certified the experience and financial stability of one of the partners of the firm and therefore, the petitioner's bid did not satisfy the tender conditions. W.P.(C) No.35534/2008 - 2 - 2. The tender notice is Exhibit P5. Clause 1.8.d and 1.9 of Exhibit P5 read as follows:- 1.8.d. The prospective tenderer should have completed at least one wok of similar nature costing at least 50% of the PAC of the work tendered during the last 5 years and such completed works shall necessarily include bituminous items such as BM/DBM, BC/SDBC, to the tune of at least 50% of the scheduled quantity of work concerned. Tender forms shall be issued only to those tenderer (individual/firm) who produce certificate to this effect issued by the concerned Executive Engineer. 1.9. To qualify for award of contract: a) Each bidder shall be registered 'A' class or equivalent contractor of the P.W.D./Irrigation Department of Kerala/CPWD/Railways. b) Each bidder in his name should have in the last five years achieved a minimum annual financial turnover amount of Rs.1565 lakhs (in all classes of Civil Engineering construction works only) in any one year. c) Each bidder in the last five years should have satisfactorily completed (not less than 90% of contract value) as a prime contractor (or as a nominated sub contractor where the sub contract involved execution of all main items of work described in the bid document provided further that all other qualification criteria are satisfied) at least one similar work of value not less than 50% of estimated value of contract. The contractor should set up quality control lab at the site before starting the work, as per direction of the Department officers. W.P.(C) No.35534/2008 - 3 - 3. A perusal of 1.9.b. clause shows that each bidder in his name should have achieved a minimum annual financial turnover amount of Rs.1,565 lakhs. This necessarily means that financial turnover should be that of the tenderer firm, who is the bidder in this case. Admittedly, the financial statement filed is that of one of the partners of the firm. Therefore, this itself shows that bid made by the petitioner did not satisfy the conditions specified in Exhibit P5 tender notice. 4. The learned counsel for the petitioner relied on the judgment of the Apex Court in NEW HORISONS LIMITED AND ANOTHER v. UNION OF INDIA AND OTHERS [(1995)1 SCC 478]. It was contended that the documents produced by the petitioner satisfied the tender conditions. However, a reading of paragraph 23 of the judgment of the Apex Court itself shows that the tender conditions dealt in that judgment did not specify that the experience should be of the tenderer in his name. Unlike the conditions of the tender, examined by the Apex Court, in the W.P.(C) No.35534/2008 - 4 - judgment referred to above, in Exhibit P5, the financial stability should be that of the bidder in his name. The conditions of the tender as contained in Exhibit P5 is very much different from what was examined by the Apex Court. Hence, I do not think that the ratio of the judgment applies to the case of petitioner herein. 5. In view of the above, I am not satisfied that the decision of the respondent not to pre-qualify the petitioner is vitiated for any reason warranting the interference of this Court. The writ petition fails and the same is accordingly dismissed. ANTONY DOMINIC, JUDGE skr