IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 16415 of 2009(V) -------------------------- PETITIONER(S): ------------------ C.S.SWAMINATHAN, GOVERNMENT CONTRACTOR, CHALLIYIL HOUSE, KANICHUKULANGARA P.O., ALAPPUZHA. BY ADV. SRI.M.K.PRADEEPKUMAR RESPONDENT(S): ------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST FORT,THIRUVANANTHAPURAM-23. 2. THE CHIEF ENGINEER (P&CW), TRANSPORT BHAVAN, EAST FORT,THIRUVANANTHAPURAM-23. 3. M/S.SUN PROJECTS INDIA PVT.LTD., REPRESENTED BY ITS EXECUTIVE OFFICER-IN-CHARGE, T.C.NO.4/1044, KOWDIAR THIRUVANANTHAPURAM-3. ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1 SRI.NAIR AJAY KRISHNAN FOR R3 SRI.R.T.PRADEEP FOR R3 SRI.V.V.NANDAGOPAL NAMBIAR, SC, KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16415/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE PHOTOCOPY OF PAPER PUBLICATION DT 14.4.2009 MALAYALA MANORAMA DAILY. EXT.P2: TRUE COPY OF THE PETITIONERS PRE-QUALIFICATION BID DT 3.5.2009. EXT.P3: TRUE COPIES OF CENTRAL VIGILANCE COMMISSION, GOVERNMENTOF INDIA LETTER NO.12-02-1-CT-6 DATED 17.12.2002. EXT.P4: TRUE COPIES OF CENTRAL VIGILANCE COMMISSION, GOVERNMENT OF INDIA LETTER NO.12-02-1-CT-6 DATED 7.5.2004. EXT.P5: TRUE COPY OF THE PROCEEDINGS OF THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES SOUTHCIRCLE, THIRUVANANTHAPURAM BY ITS ORDER NUMBER DB13-4927/06 DT 6.3.2009. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 16415 OF 2009 (V) ===================== Dated this the 30th day of September, 2009 J U D G M E N T Petitioner, an A Class Government Contractor, is aggrieved by the decision of the 1st respondent in not pre-qualifying him in a tender that was submitted by him in pursuance to Ext.P1 tender notice. 2. Facts of the case are that by Ext.P1, tenders were invited for the work of Concreting Bus Station yard and making parking yard by soiling and metalling at Cherthala Bus Station. Ext.P2 is the pre-qualification bid containing the application for pre-qualification, general conditions of contract, declaration by tenderer, pre-qualification bid questionnaire and the formats of the documents to be submitted. 3. Petitioner submitted his bid in response to Ext.P1 and the 3rd respondent was another tenderer. Subsequently, when the petitioner made enquiries, he was informed that he was not pre- qualified and that led the petitioner to file this writ petition. According to the petitioner, if the bid submitted by him in response to Ext.P1 were assessed applying the yardsticks WPC 16415/09 :2 : specified for that purpose in the tender documents, he would have been pre-qualified. 4. The 1st respondent has filed a counter affidavit. In the counter affidavit, the case set up by the 1st respondent is that apart from the financial stability, the evaluation was conducted based on the experience and qualification of key personnel, list of machinery and equipment the tenderer owns and proposes to be deployed for the work and the works completed as a main contractor. It is stated that when the petitioner's eligibility to be pre-qualified was assessed, awarding the marks that were specified for the purpose, he did not attain the bench mark and therefore, was not pre-qualified. It is stated that the 3rd respondent, the other tenderer was pre-qualified and though his price bid was also opened, in view of the direction of this Court to maintain status quo, nothing further has been done. 5. Since the counter affidavit disclosed that parameters which were not mentioned in Ext.P2 tender pre-qualification bid were applied by the 1st respondent for evaluating the bids, this Court passed order dated 22/7/09 directing that an additional affidavit shall be filed by the competent authority of the KSRTC, WPC 16415/09 :3 : affirming whether the competent authority has decided upon the parameters for allocation of marks prior to the issuance of Ext.P2 notification or whether the mode of apportionment of marks was decided upon by the Selection Committee after receipt of the tenders. Till date, no such affidavit has been filed although standing counsel orally submits that he has been instructed that the parameters stated in the counter affidavit were laid down subsequent to the issue of the tender notification with the approval of the Chairman and the Managing Director. 6. When tenders are invited, the eligibility of the tenderers should be assessed applying the parameters laid down in the tender notice, which alone can ensure transparency in the process of evaluation of bids. In this case, though standards of pre-qualification has been laid down in the tender notice, as is evident from the counter affidavit filed, parameters which are absent in the tender notification have been applied and the information called for by this Court is also not placed on record. In these circumstances, I cannot approve the process of pre- qualification that has been undertaken by respondents 1 and 2 and therefore, the decision of the pre-qualification in pursuance to WPC 16415/09 :4 : Ext.P1 tender notification where the 3rd respondent has been pre- qualified and the petitioner has not been pre-qualified has to be set aside and I do so. Writ petition will therefore stand disposed of directing that respondents 1 and 2 shall evaluate the tender received by them in response to Ext.P1 tender notice applying the standards laid down for the purpose and take a fresh decision in this matter. This shall be done, as expeditiously as possible. ANTONY DOMINIC, JUDGE Rp