IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.04.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.Nos.25281/2009, & M.P.Nos.1&2/2009 & M.P.No.1/2010 W.P.No.24906/2009 &M.P.Nos.1&2/2009 W.P.No.24905/2009 &M.P.No.1/2009 & W.P.No.26126/2009 & M.P.Nos.1&2/2009 & M.P.No.1/2010 W.P.No.25281/ 2009 M/s.Chandragiri Construction Company, Thekkil Post, Kasargod, Kerala – 671 541, rep. by its partner Mohideen Kunhi ... Petitioner -vs- 1.State of Tamil Nadu, rep, by its Secretary to Government, Animal Husbanbdry and Fisheries Deparment, Fort St. George, Chennai -9. 2.Tamil Nadu Fisheries Development, Corporation, rep. by its Commissioner, D.M.S. Complex, Chennai – 600 018. 3.Tender Award Committee, rep. by its Chairman/Commissioner, Tamil Nadu Fisheries Development Corporation, D.M.S. Complex, Chennai – 600 018. 4.The Superintendent Engineer, Fishing Harbour Circle, Teynampet, Chennai – 600 018. 5.Mr.L.Ramasamy, Superintendent Engineer, Fishing Harbour Circle, Teynampet, Chennai – 600 018. 6.M/s.Sripathy Associates, No.62, Thangaperumal Street, Erode – 638 001. .. Respondents W.P.No.24906/ 2009 M/s.Chandragiri Construction Company, Thekkil Post, Kasargod, Kerala – 671 541, rep. by its partner Mohideen Kunhi ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ -vs- 1.State of Tamil Nadu, rep, by its Secretary to Government, Animal Husbanbdry and Fisheries Deparment, Fort St. George, Chennai -9. 2.Tamil Nadu Fisheries Development, Corporation, rep. by its Commissioner, D.M.S. Complex, Chennai – 600 018. 3.The Superintendent Engineer, Fishing Harbour Circle, Teynampet, Chennai – 600 018. 4.Mr.L.Ramasamy, Superintendent Engineer, Fishing Harbour Circle, Teynampet, Chennai – 600 018. 5.M/s.Sripathy Associates, No.62, Thangaperumal Street, Erode – 638 001. ... Respondents (R5 impleaded as per order dated 10.12.2009 in M.P.No.2/2009) W.P.No.24905/ 2009 Manickavasalu ... Petitioner Vs. 1.The Superintending Engineer, Fishing Harbour Project Circle, Tamilnadu Fisheries Department, DMS Compound, Chennai – 600 006. 2.M/s.Sripathy Associates, No.62, Thangaperumal Street, Erode – 638 001. ... Respondents (R2 impleaded as per order dated 10.12.2009 in M.P.No.3/2009) W.P.No.26126/ 2009 Manickavasalu ... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.State of Tamil Nadu, rep, by its Secretary to Government, Animal Husbanbdry and Fisheries Deparment, Fort St. George, Chennai -9. 2.Tamil Nadu Fisheries Development, Corporation, rep. by its Commissioner, D.M.S. Complex, Chennai – 600 018. 3.Tender Award Committee, rep. by its Chairman/Commissioner, Tamil Nadu Fisheries Development Corporation, D.M.S. Complex, Chennai – 600 018. 4.The Superintendent Engineer, Fishing Harbour Circle, Teynampet, Chennai – 600 018. 5.Mr.L.Ramasamy, Superintendent Engineer, Fishing Harbour Circle, Teynampet, Chennai – 600 018. 6.M/s.Sripathy Associates, No.62, Thangaperumal Street, Erode – 638 001. ... Respondents Prayer in W.P.No.25281/2009: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the entire records relating to the impugned orders of the third respondent proceedings No.DB/D3/F.666-A/2009 dated 01.12.2009 and consequential work order issued by the fourth respondent in Lr.No.DB/D3/F.666-A/2009 dated 02.12.2009 in favour of the 6th respondent herein and quash the same and consequently the respondents 1 to 3 to evaluate and finalise the tender afresh in respect of the contract work viz., "Construction of Back Water and its approaches for Fishing Harbour at Thangapattinam in Kanniyakumari District" based on their qualifications and experience. Prayer in W.P.No.24906/2009: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Declaration to declare the entire tender process vide letter No.DB/D3/F/6006/A-09 dated 18.08.2009 issued by the third respondent in respect of "Construction of Back Water and its approaches for Fishing Harbour at Thangapattinam in Kanyakumari District" as null and void and consequently direct the first respondent to award the contract work viz., "Construction of Back Water and its approaches for Fishing Harbour at Thangapattinam in Kanyakumari District" to the tender based on their qualification and experience. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.24905/2009: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records pertaining to the second tender notification No.DB/D3/F. 114 N/2009 dated 03.06.2009 issued by the respondent and to quash the same and to call for a fresh tender with the same terms and conditions as stipulated in the TamilNadu Transparency Tenders Act, 1998 and Tamil Nadu Transparency in Tenders Rules, 2000. Prayer in W.P.No.26126/2009: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the entire records to the impugned orders of the third respondent proceedings No.DB/D3/F. 666-A/2009 dated 01.12.2009 and consequential work order issued by the fourth respondent in Lr.No.DB/D3/F.666-A/2009 dated 02.12.2009 in favour of the 6th respondent and to quash the same and direct the respondents from 1 to 3 to call for a fresh tender with respect to work "Construction of breakwaters and its approaches for fishing at Thengapattinam in Kanyakumari District" and evaluate and finalise the same based on the qualifications and experience. For Petitioner in W.P.No.25281 & :Mr.Vijay Narayan Senior Counsel W.P.No.24906/2009 for Mr.S.Srinivasan For Petitioner in W.P.No.24905/09:Mr.R.Thiyagarajan Senior Counsel & W.P.No.26126/09 for M/s.S.Haja Mohideen Gisthi For Respondents in W.P.25281/09:Mr.P.S.Raman Advocate General & W.P.No.24906/09 assisted by Mr.M.Dhandapani Spl Govt Pleader for RR1 to 4 & for R1 to R3 in W.P.No.24906/09 For Respondents in W.P.26126/09:Mr.P.S.Raman Advocate General & W.P.24905/09 assisted by Mr.M.Dhandapani Spl Govt Pleader for RR1 to 4 & R1 in W.P.No.24905/2009 For Respondents :Mr.K.M.Vijayan Senior Counsel for Mr.R.Suresh Kumar for R6 in W.P.25281/09, for R5 in W.P.24906/09, for R6 in W.P.26126/09 & for R2 in W.P.24905/09 COMMON O R D E R Tenders floated for construction of facilities for a fishing harbour in Kanyakumari District has landed in troubled waters giving rise to the present litigation. https://hcservices.ecourts.gov.in/hcservices/ 2. Four writ petitions have been filed by two tenderers raising identical questions and by consent all writ petitions are taken up for disposal and disposed of by an common order. 3. Prayer in four writ petitions and the parties:- i) W.P.No.25281/2009 has been filed for issuance of a writ of certiorarified mandamus to quash the order passed by the third respondent dated 01.12.2009 and the consequential work order issued by the fourth respondent in letter dated 02.12.2009 in favour of the sixth respondent and consequently direct the respondents 1 to 3 to evaluate and finalise the tender afresh in respect of the subject contract, based on their qualification and experience. This writ petition has been filed by M/s.Chandragiri Construction. ii) W.P.No.24906/09 has also been filed by M/s.Chandragiri Construction for issuance of writ of declaration to declare the entire tender process vide letter dated 18.08.2009 issued by the third respondent in respect of the subject work as null and void and consequently direct the first respondent to award the work to the tenderer, based on their qualification and experience. iii) W.P.No.24905/2009 has been filed by Mr. Manickavasalu for issuance a writ of certiorarified mandamus to quash the tender notification dated 03.06.2009 issued by the first respondent and to call for fresh tender with the same terms and conditions as stipulated in the Tamil Nadu Transparency of Tenders Act 1998 and rules framed there under. iv) W.P.No.26126/2009 has also been filed by Mr.Manickavasalu, praying for issuance of a writ of certiorarified mandamus to quash the order passed by the third respondent dated 01.12.2009 and the consequential work order issued by the fourth respondent dated 02.12.2009 in favour of the sixth respondent and consequently direct the respondents 1 to 3 to call for fresh tender with respect to the subject work and evaluate and finalise the same, based on the qualification and experience. 4. Subject in Issue:- The petitioners, who are stated to be class I registered contractors with the Tamil Nadu Government are before this Court, aggrieved by the order of rejection of their tenders submitted by them for construction of breakwaters and its approaches for fishing harbour at Thengapattinam in Kanyakumari District at the pre- qualification stage and to quash the work order issued in favour of M/s.Sripathy Associates, impleaded as the sixth respondent in W.P.No.25281/2009 and 26126/2009 and as the fifth respondent in W.P.No.24906/2009 and the second respondent in W.P.No.24905/2009. 5. Undisputed facts:- The Government of Tamil Nadu proposed for the construction of a fishing harbour at Thengapattinam in Kanyakumari District vide G.O.Ms.No.126, Animal Husbandry, Dairying and Fisheries Department, https://hcservices.ecourts.gov.in/hcservices/ dated 21.12.2005 at an estimated cost of Rs.30.55 crores. The proposal was forwarded to the Government of India for its approval and the Government of India accepted the proposal and accorded administrative approval for the project by proceedings dated 25.09.2008. Based on such approval, the Government of Tamil Nadu issued G.O.Ms.No.27 dated 05.03.2009 under centrally sponsored scheme to be shared between the Government of India and the State Government in a phased manner on 50:50 basis. The work was scheduled to be commenced and completed in two stages within a period of four years from the date of handing over of the site. The first stage of the proposed work was construction of main breakwater, lee ward breakwater and its approaches, at an estimated cost of Rs.22.84 crores to be completed within two years time. Accordingly, a notification dated 03.06.2009 was issued by the Superintendent Engineer, Fishing Harbour Project Circle, Chennai-6, inviting tenders for the subject work under sealed two cover tender system i.e., qualification schedule and price tender (Item rate tenders). First cover to contain EMD and qualification conditions and other details and the second cover containing price tender schedule. The EMD was fixed at Rs.12.00 lakhs and the estimated amount of the tender was fixed at Rs.2284.00 lakhs, the date of tender was fixed as 10.07.2009 and tenders were to be issued from 08.06.2009 to 09.07.2009. 6. The contractors registered with the Tamil Nadu Public Works Department, other Departments of Tamil Nadu Government, other State Government, Government of India, State and Central Government undertaking, under class I (State Level) with monetary limit of Rs.75.00 lakhs and above, and with proven record were eligible to participate in the tender. That the applicants should have been under the name and style in the civil engineering construction field atleast for the past five years. The applicant should have completed atleast one "breakwater" work of similar nature with value not less than Rs.916.00 lakhs under "single agreement" in any one of the preceding '5' years, for this purpose construction of road, building, industrial estates, workshops would not be considered. The annual turn over of the applicant should not be less than Rs.1300.00 lakhs per year in any one of the preceding '5' years. The tender documents were made available in the office of the Superintendent Engineer from 08.06.2009 to 09.07.2009 and the price tender schedule was also issued along with the pre-qualification schedule and all tender documents could be downloaded from the official website. Under the condition scope and status of work, the work was described under three heads, namely main breakwater, lee ward breakwater and approaches to breakwaters, the period of completion was 24 calendar months, which is inclusive of monsoon period from the date of handing over of site and the percentage of progress of work was also stipulated. The EMD of Rs.12.00 lakhs was directed to be enclosed along with the qualification schedule for the work. Security Deposit for an amount equivalent to 2% of the contract value, which includes the EMD already paid was required to be paid by the successful https://hcservices.ecourts.gov.in/hcservices/ tenderer within 21 days from the date of receipt of work order. English was stipulated as the language of the two cover tender system and the price tender was to be valid for a period of 90 days from the date notified for the opening of the price tender. The tender condition further spelt out how the price tender should be submitted by two cover system. The qualification schedule was to be opened by the Superintendent Engineer on 10.07.2009 at 15.30 hours, in the presence of tenderers or their authorised representatives and the price tenders of only qualified contractors would be opened. The tender conditions further issued detailed information and instructions for the tenderers, which included the minimum criteria for qualification, the evidence to be produced for such purpose. It was mentioned in the tender document that the details furnished without supporting certificate will not be considered. 7. In response to the tender notification dated 03.06.2009, six tenderers participated, which includes the two writ petitioners and the six respondent. One of the participants, namely M/s. Associates Engineering Consultant, Pune did not enclose the EMD and consequently its bid was rejected. The tenders submitted by the remaining five were evaluated by the tender scrutiny committee and all the five were found to be not fully qualified as per the tender conditions prescribed in the pre-qualification. Ultimately by order dated 18.08.2009 all the five tenders were rejected and the EMD furnished by all of them, including the petitioners, were returned. 8. Thereafter, a second tender notification was issued by the Superintendent Engineer on 18.08.2009, inviting tenders for the subject work and the EMD was fixed at Rs.12.00 lakhs, the estimate of the work was fixed at Rs.2300.00 lakhs and tender forms were issued from 25.08.2009 to 22.09.2009 and the tenders were opened on 23.09.2009. Under Clause 2(iii) of the notification, it was stated that the applicants should have completed atleast one breakwater work of similar nature with value not less than Rs.800.00 lakhs under "single agreement" in any one of the preceding five years. The scope and status of the work was described in Clause 5 consisting of the main breakwater, leeward breakwater and approaches to breakwaters. The time of completion, EMD, Security Deposit, language of the tender, validity of the price tender, procedure for submission of price tender were identical to that of the first tender notification. The tenders were to be opened by the Superintendent Engineer on 23.09.2009. The minimum criteria for qualification and the evidence to be produced were mentioned in the tender. Schedule 'A' of the notification dealt with the Structure and Organisation, Schedule 'B' the Financial Capability, Schedule 'E' was a declaration to be furnished giving information regarding current litigation/ debarring /expelling of applicant or abandonment of work by the applicant, Schedule 'F' the format of the affidavit to be sworn to by the applicant and Schedule 'G' was the format of the undertaking to be furnished by the applicant stating that they will abide by the https://hcservices.ecourts.gov.in/hcservices/ terms and conditions if any modified by the Government in the contract conditions subsequent to the submission of qualification schedule/price schedule or subsequent to they execution of the agreement. In the later part of this order, the conditions regarding pre-qualification would be dealt with in detail as the dispute raised in the present writ petitions arise on account of the petitioners bid having been rejected at pre-qualification stage. 9. Pursuant to the second tender notification, five bidders submitted their offers, which included the two writ petitioners and the sixth respondent, the tenders were opened as scheduled on 23.09.2009. M/s. Chandragiri Construction filed W.P.No.22576/2009 before this Court, praying for a direction to direct the Superintendent Engineer to constitute a new Tender Evaluation Committee to evaluate the tender forms. Writ Petition was disposed of of this Court by order dated 18.09.2009, permitting the tender scrutiny committee to evaluate all tenders and place the same to the tender award committee, which would verify all the tenders received, approve and award the contract to the successful tenderer. The operative portion of the order reads thus:- "4....As such, I am of the opinion that by the participation of the Superintending Engineer in the Tender Evaluation Committee, no damage will be caused to the petitioner. Even, in case of any mischief or any false report as against the petitioner, when there is a second stage of scrutiny of the report to be filed by the Tender Evaluation Committee, the apprehension of the petitioner cannot be accepted. Apart from this, each tenderer may have one reason or the other to seek exclusion of one officer or the other. If the participation of any officer in any Committee has to be decided only on the basis of the request of the tenderers, then there will be no end to it. Consequently, recording the above submission of the learned Advocate General, I am of the opinion that this writ petition can be closed. Accordingly, the writ petition is closed." 10. It is stated that the first cover containing the pre- qualification was opened and the tender scrutiny committee evaluated the pre-qualification bids and the same were placed before the tender award committee on 26.11.2009. The tender award committee rejected three tenderers, namely the two writ petitioners and M/s.Engineering Project India Ltd and declare that the sixth respondent and M/s.Aster Infratek Private Ltd were qualified at the pre-qualification stage and proceeded to open the price bid submitted by both of them. It is stated that the price bid was opened in the presence of the two tenderers and placed before the tender award committee on 01.12.2009 and after negotiation with the sixth respondent, the lowest tenderer, the work order was issued to the sixth respondent on 02.12.2009. Aggrieved by such action the petitioners are before this Court by way of the present writ petitions. Initially, since the order of https://hcservices.ecourts.gov.in/hcservices/ rejection was not communicated to the petitioners, had sought for writ of declaration to declare the entire tender process as illegal by filing W.P.No.24906/2009 and 24905/2009. After the communication of the order of rejection, the petitioners have filed the other two writ petitions, namely W.P.No.25281 & 26126/2009, challenging the rejection of their tenders and the work order issued in favour of the sixth respondent. 11. Case of the petitioner in W.P.No.24906/09 & W.P.No.25281/09 filed by M/s.Chandragiri Construction Company:- The Petitioner is a registered State Level Class 1 contractor with the Public Works Department and Highways Departments of the State of Tamilnadu and entitled to do work for more than Rs.1 crore. The Petitioner participated in the tender conducted on 10.07.2009 and filed their bids. The Petitioner also enclosed the EMD for Rs.12 lakhs along with necessary enclosures. According to the Petitioner they have executed similar works and they are fully qualified as per the qualification prescribed in the tender document and were expecting to be declared as successful tenderer. While so, the 4th Respondent by letter dated 18.08.2009 rejected the Petitioner's tender as well as the tenders submitted by others without assigning any reasons. It has been further stated that on enquiry the Petitioner came to know that the entire tender process was cancelled by the 5th Respondent and other officials of Tamilnadu Fisheries Development Corporations to reduce and change the norms of the tender so as to enable the 6th Respondent to become qualified. In the 2nd tender called on 18.8.2009 the cost of the project was revised to Rs.2300 lakhs with EMD of Rs.12 lakhs. In the 2nd Tender one of the eligibility condition was changed and the applicant was required to complete a contract work of not less than Rs.800 lakhs and according to the Petitioner this was done to facilitate the participation of the 6th Respondent and to rule out others for flimsy reasons. According to the Petitioner the 4th Respondent was proceeding to evaluate the tenders in an arbitrary manner and therefore the Petitioner filed W.P.No.22576 of 2009 before this Court praying for issuance of a Writ of Mandamus to forbear the official respondent from proceeding with the finalisation of the tenders dated 18.8.2009 and consequently to direct the 1st Respondent to constitute a new tender evaluation committee to evaluate the tender forms and award the same to the successful and most eligible tenderer within reasonable time. The Writ Petition was disposed off by this Court by order dated 18.8.2009. According to the Petitioner the Respondents acted in total contravention of the direction issued by this Court. While so, the 4th Respondent by proceedings dated 26.11.2009 rejected the petitioner's tender and the order was not communicated and therefore the Petitioner's filed W.P.No.24906 of 2009 for declaring the entire tender process as illegal. When the Writ Petition came up for admission on 2.12.2009 it was represented on behalf of the Respondents that evaluation of tenders are under progress and based on such submission this Court adjourned the Writ Petition to https://hcservices.ecourts.gov.in/hcservices/ 3.12.2009 at 2.15 pm. On 3.12.2009 when the matter was taken up it was represented on behalf of the Respondents that the tenders had already been evaluated and the work was awarded to the 6th Respondent and the work order was issued to the 6th Respondent on 2.12.2009 in a function presided over by Hon'ble Ministers. Therefore the Petitioner filed W.P.No.25281 of 2009 challenging the rejection order dated 1.12.2009 and the work order issue to the 6th Respondent dated 2.12.2009. It has been further stated that the 5th/4th Respondent, the Superintending Engineer, from the beginning has been supporting the cause of the 6th Respondent. By relying upon the various dates commencing with the 1st tender till the work order was issued pursuant to the 2nd tender, the Petitioner submits that the entire tender process is vitiated on the ground of malice and the Respondents 2 to 5 reduced the original norms, particularly the value of the work already done by the Applicant to favour the 6th Respondent whose tender was rejected in the 1st call and the value of the work was reduced to Rs.800 lakhs to facilitate the 6th Respondent and yet the 6th Respondent has completed work only to the tune of Rs.6.06 crores which does not satisfy the norms. It is contended that the 3rd Respondent did not independently apply its mind and merely relied on the evaluation report of the 4th Respondent. The bid submitted by the 6th Respondent had to be rejected inlimine as the 6th Respondent failed to meet the first condition namely the applicant should have carried out work of similar nature not less than Rs.800 lakhs, and the evaluation report itself state that the 6th Respondent has completed only work of Rs.6.06 crores in a single contract of similar nature in the last preceding 5 years. Though the Respondent 2 to 4 had sufficient power under Section 27 (4) of the Tamilnadu Transparency in Tenders Act, 1998 to seek for clarification from the tenderers the failed to do so and proceeded to reject the Petitioner's tender which is violative of Article 19 and 21 of the Constitution. As regards the reasons given for rejecting the Petitioner's pre-qualification bid, it is submitted that the Petitioner had annexed the letter written to Concrete Layer Innovation (CLI) dated 18.9.2009 along with the tender documents which ought to have been taken into consideration. As regards the Petitioner's registration with the PWD Department, Kerala State, it is submitted that the Respondent erroneously stated that the Petitioner has not submitted documentary evidence that they are class I contractor while the Petitioner had produced the certificate issued by the Superintending Engineer PWD National Highway, North Circle, Kozhikode, which establishes that the Petitioner is registered as A category contract. As regard the solvency certificate, it is submitted that the Respondents rejected the same on the ground that the details of the survey field numbers of properties were not furnished. It is contended that this observation is erroneous since the solvency certificate was issued by the Tashildar, Kasaragod to the extent of Rs.8 crores and if there was any clarification required the Respondents could have sought for the same from the Petitioner. Though the attested copy of the Sales Tax verification certificate was enclosed the Respondents stated that the https://hcservices.ecourts.gov.in/hcservices/ Petitioner did not meet the pre-qualification criteria by observing the Sales Tax remittance and Sale Tax clearance for 2008-2009 has not been furnished when the requirement under Clause 3 of the tender conditions, the Sale Tax Registration details and sales tax verification certificate valid for the current period was alone required to be produce. Therefore the rejection on this ground is erroneous. It is further stated that the Petitioner did not disclose the termination of a tender issued by the SE project circle, Vellore and certain other details. As far as the rejection by the SE project circle, Writ Petition was pending against the said termination and with regard to the other matter relating to a road maintenance work in Dharmapuri after the Writ Petition filed challenging the termination of the said