IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 13419 of 2009(V) ---------------------------------------- PETITIONER(S): ------------------------ E.C. CHERIAN, INCHAKALA CONSTRUCTIONS, RESIDING AT INCHAKALA HOUSE, THELLAKAM P.O., KOTTAYAM. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY, PUBLIC WORKS DEPT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, P.W.D. (ROADS AND BRIDGES), SOUTH CIRCLE, THIRUVANANTHAPURAM. 3. CHIEF ENGINEER , P.W.D., ROADS AND BRIDGES, THIRUVANANTHAPURAM. 4. EXECUTIVE ENGINEER (GENERAL), OFFICE OF THE SUPERINTENDING ENGINEER), (ROADS AND BRIDGES SOUTH CIRCLE, THIRUVANANTHAPURAM. 5. K.BHASKARAN, CONTRACTOR, SNEHALAYAM,,PUTHIYAVILA P.O., KAYAMKULAM. R1 – R4 BY GOVT. PLEADER MR.M.A.ASIF R5 BY SMT.V.P.SEEMANDINI, SENIOR ADVOCATE, R5 BY ADVS. SMT.S.KARTHIKA, MR.M.S.UNNIKRISHNAN, MR.M.R.ANISON, SMT.K.P.GEETHA MANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13419/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE TENDER NOTICE NO.39/ESC/08-09 -3.2.09 PUBLISHED IN MANORAMA DAILY DTD. 18.2.09 ALONG WITH OTHER TENDER NOTICES. P2:- COPY OF THE CERTIFICATE OF EXPERIENCE ISSUED TO THE PETITIONER AND PRODUCED ALONG WITH THE TENDER DOCUMENTS. P3:- COPY OF THE RECEIPT SHOWING THE PAYMENT OF CHARGES FOR OBTAINING THE TENDER DOCUMENTS. P4:- COPY OF THE REGISTRATION CARD ISSUED TO THE PETITIONER SHOWING THAT HE IS AN 'A' CLASS CONTRACTOR. P5:- COPY OF THE FULL TEXT OF THE TENDER NOTICE OBTAINED FROM THE WEBSITE. P6:- COPY OF THE CODE OF CONDUCT NOW IN FORCE IN THE STATE. R5(a):- COPY OF THE NORMS FOR EVALUATION OF PRE-QUALIFICATION TENDERS FOR STATE WORKS. R5(b):- COPY OF THE NOTICE ISSUED BY THE SUPERINTENDING ENGINEER TO THIS RESPONDENT DTD. 8.5.09. TRUE COPY P.S. TO JUDGE tss V.GIRI, J. ---------------------------------------- W.P.(C).No.13419 of 2009 ---------------------------------------- Dated this the 10th day of August, 2009. JUDGMENT The first respondent issued a notification inviting tenders for the construction of the Changanacherry bye-pass 4th Reach Part-II Ch 4/400 to 5/200K, as evidenced by Ext.P1. The estimate of the work is shown as Rs.380 lakhs. The details of the tender notice, as obtained from the website Ext.P5 shows that A class contractors, who have undertaken similar works within last 5 years, having done not less than 40% of the estimated amount of the work in question are liable to be treated as pre- qualified. The petitioner submitted a tender expressing his willingness to undertake the work 5.1% below the estimate rate. 2. Ultimately, the petitioner was not pre- qualified, and the work was awarded to the 5th W.P.(C).No.13419 of 2009 :: 2 :: respondent. The award of the work was made in favour of the 5th respondent, after the writ petition was instituted. The decision taken by the respondent not to pre-qualify the petitioner has been challenged in this writ petition. 3. A counter affidavit has been filed on behalf of respondents 1 to 3. The 5th respondent has filed a counter affidavit and an additional counter affidavit. The petitioner has filed a reply affidavit. 4. I heard Mr.K.Gopalakrishna Kurup, learned counsel for the petitioner, learned Senior Counsel Mrs.Seemanthini for the 5th respondent and the learned Government Pleader. 5. The reasons for not pre-qualifying the petitioner are given in paragraph 5 of the counter affidavit filed on behalf of respondents 1 to 3, which reads as follows: “It is submitted that the technical bids will be opened on the stipulated ate as prescribed in the tender notice and it will be scrutinized by the tendering authority and W.P.(C).No.13419 of 2009 :: 3 :: thereafter it will be sent to the Chief engineers' Committee consists of 4 Chief Engineers i.e. (1) Chief Engineer (Road and Bridges), (2) Chief Engineer for buildings (3) Chief Engineer (National Highway) and (4) Chief Engineer for Design. Thereafter the Chief Engineers' Committee will scrutinize the technical bids submitted by the contractors and thereafter they will publish the list of qualified bidders qualified to undertake the work. Accordingly, the technical bids submitted by the petitioner was verified by the Chief Engineers' Committee and they found that the petitioner had not furnished any supporting documents to prove the qualification of his technical persons and also not furnished any details such as experience of the above technical personnel and other details in the Schedule 'D'. It is also found that the annual turnover certificate obtained from the Chartered Accountant produced by the petitioner is too low when compared with the project cost of Rs.380 lakhs. Therefore the petitioner had not achieved the required target in Chief Engineers Pre-qualification Committee held on 20.4.2009 and the above committee disqualified the petitioner from the above work.” W.P.(C).No.13419 of 2009 :: 4 :: 6. Two reasons are therefore, given essentially by respondents 1 to 3 for not pre- qualifying the petitioner for the work in question. Firstly, he had not furnished any documents to prove the qualification of his technical personnel and he has not furnished the expertise of the technical personnel and other details in Schedule C. 7. According to the petitioner, there is no such requirement spelt out from Ext.P5. It is, therefore, that after hearing the counsel for some time, that I had called for the original tender document submitted by the petitioner as also by the 5th respondent. Schedule C of the tender documents submitted by the petitioner requires details of personnel with the applicant. The requirement insofar as Schedule C is concerned, is mentioned in the instructions to bidders as Clause 9.14(e) of the instructions to the applicants, which reads as follows: W.P.(C).No.13419 of 2009 :: 5 :: “The qualification and experience of key personnel proposed for administration and execution of the contract both on and off site in the form at prescribed in Schedule C”. 8. I have gone through the tender documents submitted by the petitioner and I find that the allegations raised by the respondents in this regard qua the petitioner seems to be correct. No doubt, he has given the names of the Branch Manager and Works Manager. He has given the names of Engineering Graduates employed by him. But the respondents cannot be faulted with for treating the details supplied by the petitioner as inadequate in the light of the categoric direction given in the instructions to the applicants. The details of the personnel as contemplated in Schedule C are those details, which are mentioned in Clause 9.14(e). The qualification of the personnel and standing should have been given to enable the tender processing authority to consider the technical W.P.(C).No.13419 of 2009 :: 6 :: capacity of the tenderer to undertake and complete the work of the magnitude. It cannot be said that the requirements are of insignificant nature. At any rate, it is not as if the tender notification contains a clause for dispensing with such details. 9. I also find that the petitioner has understood those requirements correctly by stating that the details are separately attached. But, I do not find a separate attachment to the tender documents giving the requisite details. 10. The next ground stated by the respondents to treat the petitioner as not pre- qualified is that the annual turnover certificate obtained from the competent authority and produced by the petitioner is too low when compared with the project cost of Rs.380 lakhs. The certificates produced by the petitioner, along with his tender documents, consist of the profit and loss account and balance sheet for the three years ending on W.P.(C).No.13419 of 2009 :: 7 :: 31.3.2008, 31.3.2007 and 31.3.2006 as certified by the competent authority. I do not think that the respondents have taken a perverse view, when they find that the annual turnover certificate obtained from the competent authority produced by the petitioner shows that the turnover of the petitioner is too low when compared with the project cost of Rs.380 lakhs and the petitioner has not achieved the required target. Clause 9.14(a) of the instructions to the applicants reads as follows: “To be eligible for award of contract, bidders shall provide evidence satisfactory to the Employer, notwithstanding any previously conducted prequalification of potential bidders, of their capability and adequacy of resources effectively, to carry out the subject contract. To this and all bids submitted shall include the following information. Copies of original documents defining the constitution of legal status, place of registration and principal place of business of the company of firm or partnership or, if a joint venture of each party there to constituting the tenderer.” W.P.(C).No.13419 of 2009 :: 8 :: 11. A contractor may be pre-qualified upto the limit of his pre-qualified capacity. The details given by the petitioner in Schedule B dealing with the financial statement shows that the authorized capital of the petitioner was Rs.98.49 lakhs. The financial position is Rs.196.05 lakhs. The current liabilities is Rs.97.56 lakhs and the working capacity is Rs.96.78 lakhs. The total net worth is Rs.1.01 Crores. The value of the works done by the petitioner during the last three years is also given in Schedule B. The estimate of the work undertaken by the petitioner for 3 years prior to the tender is to be shown in the schedule. The estimate of the present work is Rs.381 lakhs. In these circumstances, it cannot be said that the respondents have committed any gross error in treating the petitioner as not pre- qualified for the work in question. 12. At any rate, I am of the view that the view cannot be taken by the tender processing W.P.(C).No.13419 of 2009 :: 9 :: authority is totally unreasonable or perverse so as to warrant interference by this court. I find no merit in this writ petition. Accordingly, the same is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy//