IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 5605 of 2008(P) ------------------------- PETITIONER: ------------ KUNCHITHANNY LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD. NO. 1.197 KUNCHITHANNY P.O., ADIMALY-VIA IDUKKI DISRICT REP. BY ITS SECRETARY, M.P. SHAJAN. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENTS: ------------- 1. THE DIVISIONAL FOEST OFFICER, MUNNAR DIVISION, DEVIKULAM, MUNNAR-VIA IDUKKI DISTRICT. 2. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPT. OF FOREST & WILD LIFE GOVT. SECRETARIAT, THIRUVANANTHAPURAM. ADDL.R3. D.CHRISTHU DAS, RESHMA BHAVAN, KALLIKODE, MAILAKKARA P.O. (IMPLEADED AS PER ORDER IN IA 2703/08 DATED 7.3.2008). BY SPL.GOVERNMENT PLEADER SRI RANJITH THAMPAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 5605 of 2008 ------------------------------------- Dated: MARCH 7, 2008 JUDGMENT The prayer in this writ petition is for a direction to respondents 1 and 2 to invite the petitioner for negotiation for awarding the work notified in Exts.P1 and P2. 2. Exts.P1 and P2 are two tender notices published by the respondents for certain works in response to which the petitioner submitted his quotation offering to undertake the work for 24% above the probable amount of contract. The respondents also had received an offer from the additional 3rd respondent to do these items of work for 15% above the probable amount of contract. 3. However, petitioner contends that it, being a labour contract co-operative society, is entitled to price preference of 10%. For this purpose petitioner relies on Exts.P3 and P4 Government Orders and submits that it ought to have been awarded the work since the preference in the rates offered by the petitioner and the 3rd respondent is less than 10%. According to the petitioner as there was delay on the part of the respondents, they WP(C)5605/08 Page numbers had sent Ext.P5 representation dated 6.2.2008 offering to reduce the rates to 14.99% above the PAC. It is stated that the 3rd respondent, on receipt of Ext.P5, issued Ext.P6 negativing the claims of the petitioner. It is stated in Ext.P6 that the 3rd respondent had reduced his rates by 10% and one work was already awarded to him and the second work is recommended. This document has been produced by the petitioner along with IA 2959/08 and the additional 3rd respondent has been impleaded by order in IA 2703/08. 4. The respondents have filed a statement in which they have denied the claims of the petitioner. According to the statement filed, though the respondents would agree that the societies are entitled to price preference as per Exts.P3 and P4, the respondents would submit that the 3rd respondent had reduced the rate to 10% above the PAC and that by the time Ext.P5 was received, one work was already awarded and that the other work was recommended for acceptance. 5. I have considered the submissions made by the petitioner and the 1st respondent. Exts.P3 and P4 are the two Government Orders relied on for the price preference claimed by the petitioner. WP(C)5605/08 Page numbers While Ext.P3 conferred absolute right for price preference, that was modified by Ext.P4. Clause 4 of Ext.P4 provides for price preference as follows:- “The orders issued in the Government Orders read as 1st and 3rd papers above confer a pre- ordained right to a Society to be awarded a work on the strength of its mere participation in a tender and after opening of tender, it makes a post-tender offer to the Government of Kerala to award the work 10% above that of the lowest tender. This provision is against the basic tenets of tendering process and is against natural justice. The PWD Manual clearly prohibits a procedure of negotiating with anybody other than the lowest tenderer. The only concession that can be given in terms of the provisions of the Manual is that if a tender offer of a Society is not more than 10% over that of the lowest tenderer, such tender could be treated as the lowest for award of contract. In other words, if co-operative Societies are participating in a tender, then if the tender am0ount is not more than 10% of the lowest tender, then, the Society will get a price preference and qualify itself to be the lowest tenderer.” 4. From Ext.P4 it is evident that if the society participating in a WP(C)5605/08 Page numbers tender makes an offer and if that offer is not more than 10% of the lowest rate quoted in the tender, then the society will get the price preference and qualifies itself to be the lowest tenderer. 6. Though the learned counsel for the petitioner would want me to understand Ext.P4 as one prohibiting rate negotiation with the lowest tenderer, I do not see any such prohibition in Ext.P4. In my view, going by the general principles of tender, such a negotiation is permissible. If that be so, the claim for price preference of the petitioner can arise only if the petitioner's rate quoted is more than even the negotiated rate that is arrived at by the respondents. 7. In this case, from the pleadings it is evident that on opening the tender, the offer made by the 3rd respondent was found to be the lowest. The 3rd respondent has thereafter reduced the rate to 10% above the PAC, while the offer made by the petitioner is 24% above the PAC. If that be so, the rate quoted by the petitioner is 14% more than what was offered by the 3rd respondent. That rate did not qualify the petitioner for price preference as provided in Ext.P4. 8. It is stated in paragraph 8 of the statement filed by the 1st respondent that when the rate of the petitioner was found to be WP(C)5605/08 Page numbers exorbitant and the willingness of the society to reduce the rate was ascertained, the reply made by the society was that they were not willing to reduce the rate considering the wage rate of the workers as well as cost of materials. 9. Although the learned counsel for the petitioner would submit that such a query was never raised to the petitioner, there is no evidence contradicting the claim made by the respondent in the statement and therefore I have no reason to eschew the assertion made by the respondent in the statement. It is also stated in paragraph 8 of the statement that Ext.P5 dated 6.2.2008 was received by the respondent on 13.2.2008 and that by that time one work was awarded to the 3rd respondent and the other work was recommended for acceptance. If that be so, by the time the petitioner offered to reduce the rate by 14.99%, the rate of 10% above the PAC offered by the 3rd respondent was already accepted. If that be so, the petitioner has lost the opportunity by its own fault. In the above factual situation I do not find any merit in the writ petition. Writ petition fails and is dismissed. WP(C)5605/08 Page numbers ANTONY DOMINIC, JUDGE mt/-