IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 32896 of 2009(F) --------------------------------------- PETITIONERS: --------------------- 1. P.AHAMMED KUTTY, PWD CONTRACTOR, PALLIYALIL HOUSE, VELLILA, MANKADA, MALAPPURAM-679 324. 2. P.K.SULPHIKER, GOVT.CONTRACTOR, KOLATHIKKAL HOUSE, KIZHUPARAMBA P.O., AREACODE, MALAPPURAM. BY ADVS. SRI.ELVIN PETER P.J, SMT.NIDHI BALACHANDRAN, SMT.POOJA SURENDRAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, P.W.D.ROADS AND BRIDGES, THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, P.W.D.ROADS AND BRIDGES, NORTH CIRCLE, CALICUT. R1 TO R3 BY GOVERNMENT PLEADER SRI. V. MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32896/2009-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CONDITIONS INCORPORATED IN THE PRE-QUALIFICATION DOCUMENT. EXT.P.2: COPY OF THE MINUTES OF THE PROCEEDINGS OF THE CHIEF ENGINEERS COMMITTEE FOR PRE-QUALIFICATION DTD. 11/11/2009 ISSUED BY THE R.2. EXCLUDING THE TENDER SUBMITTED BY THE PETITIONERS. EXT.P.3: COPY OF THE ORDER, G.O. DTD. 09/06/1999 ALONG WITH THE APPENDIX, ISSUED BY THE GOVERNMENT. EXT.P.4: COPY OF THE ORDER, G.O. DTD.07/07/1987 ISSUED BY THE GOVERNMENT. EXT.P.5: COPY OF THE COMMUNICATION DTD. 13/05/2010 SENT BY THE R.3. TO THE R.2. EXT.P.6: COPY OF THE LETTER DTD. 22/03/2010 SUBMITTED BY M/S. P.M.R. CONSTRUCTION COMPANY TO THE CHIEF ENGINEER. EXT.P.7: COPY OF THE LETTER DTD. 22/03/2010 SUBMITTED BY THE CHIEF ENGINEER TO THE GOVERNMENT. RESPONDENTS' EXHIBITS & ANNXURE: EXT.R2.A: COPY OF THE TENDER DOCUMENT. EXT.R2.B: RELEVANT OPERATION OF THE STANDARD BID DOCUMENT OF NH WORK. ANNEXURE A: COPY OF THE G.O. DT. 31/03/2010. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.32896 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of August, 2010 J U D G M E N T By Ext.R2 (a) notification inviting tenders, the 3rd respondent invited tenders for the work of widening and strengthening the Tirur – Kadalundi road. The petitioners submitted a tender as a joint venture. The petitioners' bid along with the bids of others were considered for pre- qualification. By Ext.P2 the pre-qualification committee disqualified the petitioners on the following reasons which is evident from Ext.P2. “ Reasons for disqualification of Sri. P.A. Ahammedkutty & P.K. Construction While inviting P.Q. tender, SE, NC, Kozhikode has not mentioned regarding the invitation of tender through “joint Venture” and not furnished norms to be followed for the “joint Venture” tender. More over, the tender is issued to Sri. P.A. Ahammedkutty only. But P.Q. tender submitted by both Sri. P. Ahammedkutty & P.K. Construction. Hence the Chief Engineers Committee decided to reject the application. The application shall stand rejected. After the detailed evaluation by the Committee it is decided to pre-qualify all the tenderers for this work except Sri. P.Ahammedkutty, he is not pre-qualified for this work” W.P.(C)No.32896 of 2009 -2- 2. The petitioners are challenging the disqualification of the petitioners for taking part in the tender proceedings. According to the petitioners, as is clear from Ext.R2 (a) notification inviting tenders, the tenders have to be in accordance with G.O.(MS) No.52/87/PW & T dated 07.07.1987, which has been specifically referred to in Ext.R2 (a). Petitioners have produced that Government order as Ext.P4. According to the petitioners, the form of pre-qualification document is attached to that Government order which was the tender document supplied to the petitioners, in which the petitioners had submitted their tender. Petitioners contend that a reading of the pre-qualification document in which the petitioners had submitted tenders makes it abundantly clear that the same contemplated tenders by joint ventures also. It is further contended that clause 9.13 of the pre- qualification document specifically lays down the norms for submission of joint venture tenders. Therefore according to the petitioners the reasons that joint venture is not W.P.(C)No.32896 of 2009 -3- permitted and norms for joint venture tenders are not laid down are against the tender documents themselves. It is further contended that the 3rd objection to the effect that the tender document was issued only to the 1st petitioner whereas the tender has been submitted by the joint venture is also unsustainable since there is no prohibition in a joint venture submitting a tender document in the tender form purchased by one of the partners of the joint venture. Petitioners therefore submit that, the reasons stated in Ext.P2 for disqualifying the petitioners in the tender proceedings is clearly against the tender document themselves and therefore liable to be quashed. 3. Counter affidavit, additional counter affidavit, additional affidavit and a statement has been filed in the writ petition by the 2nd respondent. Today an additional counter affidavit has also been filed. The 2nd respondent would contend that Ext.R2(a) notification, which was to be published does not contemplate tenders by a joint venture and therefore joint venture tenders cannot be considered W.P.(C)No.32896 of 2009 -4- for pre-qualification in this particular tender. Of course the 2nd respondent originally relied upon Ext.R2(b) which is issued by the Government of India wherein joint venture is expressly excluded. But now it is admitted that Ext.R2 (b) is not relevant for considering the validity of the petitioners' tender. 4. I have considered the rival contentions in detail. Before going into the merits of the contentions, I may also note the subsequent events which happened after filing of the writ petition pursuant to interim orders in this writ petition. Originally there was an interim order not to award the work to anybody. Subsequently this court directed that the petitioners' tender shall also be provisionally considered subject to the result of the writ petition. Accordingly the price bids of all the tenderers were opened and the petitioners' was the lowest price bid namely 32.4% above the estimate rate. The next in line was M/s. P.M.R. Construction Company who quoted 32.8% above the estimate rate. But the Government issued government W.P.(C)No.32896 of 2009 -5- order for the said work in favour of M/s. P.M.R. Construction Company at 18% above the estimate rate. By Ext.P6 the said contractor informed the 2nd respondent that he had not agreed for the rate of 18% above the estimate rate and his tender should be accepted at 30% above the estimate rate. By Ext.P7 the 2nd respondent had recommended the case of the said contractor to the Government recommending award of contract at 30% above the estimate rate. It also appears that after the recommendation of the 2nd respondent which is dated 22.03.2010, on 31.03.2010 the Government issued Government order as GO (Rt) No.519/2010/PWD for the said work in favour of M/s. P.M.R. Construction Company at the rate of 18% above the estimate rate. From the statement dated 07.07.2010 it is also revealed that the 3rd respondent conducted negotiations with the petitioners and the petitioners informed the department that they are willing to carry out the work at the rate of 17.90% above the estimate rate. W.P.(C)No.32896 of 2009 -6- 5. Now I shall proceed to consider the contentions of the parties on the validity of the disqualification of the petitioners from taking part in the tender proceedings. As is clear from the relevant portion of Ext.P2 quoted above, three reasons are mentioned for disqualifying the petitioners. The first is that, the tender notification does not mention invitation of tender through joint venture. The second is that, norms to be followed for joint venture tender has not been furnished by the Superintending Engineer. The 3rd is that, the tender form was issued only to the 1st petitioner and the tender has been submitted by the joint venture which is not permissible. Admittedly, the tender process started by the 3rd respondent issuing Ext.R2 (a) letter to the Director of Public Relations directing the Director to publish the Pre-qualification-cum-Tender Notice No.35/2009 annexed to Ext.R2(a). In Ext.R2 (a) G.O. (MS) 52/87/ PW & T dated 07.07.1987 is shown as the reference. That Government order has been produced by the petitioners as Ext.P4. In fact the pre-qualification document W.P.(C)No.32896 of 2009 -7- attached to Ext.P4 is the one which has been issued to the petitioners in which they have submitted their tender. Clause No.1.0 of the pre-qualification document appended to Ext.P4 as Annexure “E” reads thus: “Bids for contractor or prequalification are invited for a project which includes the construction/Reconstruction/Rehabilitation of ROAD/BRIDGE/BUILDING The details of contract together with their estimates costs are given in Section 4 hereunder. General contractors booked up by specialist sub-contractors or alternatively, Joint ventures of consortia, who wish to bid for the work should apply for prequalification in the manner set out in this document. The Tender Documents will be issued subsequently only to those parties selected by the Employer/Engineer as having necessary qualifications/suitability to perform the contract (s) satisfactorily.” (underlining supplied) It does not require hair splitting interpretation to conclude that the same expressly provides for not only joint ventures but also tenders by general contractors supported by specialist sub contractors. When the tender document issued to the tenderers themselves speaks of submission of tenders by joint ventures tenders also, I fail to understand the logic of the contention of the 2nd respondent that this particular tender was not open to joint ventures. Therefore I have no hesitation to hold that, for this tender, the tender W.P.(C)No.32896 of 2009 -8- documents themselves contemplated submission of tenders by joint ventures as well. Therefore there is no merit in the first objection raised in Ext.P2. 6. Clause 9.13 of the same tender documents reads thus: “9.13 If the application is made by a group of firms, it shall be accompanied by a legal document signed by all parties to the joint venture/consortium confirming therein a clear and definite manner the proposed administrative arrangements for the management and execution of the contract, the delineation of duties, responsibilities and scope of work to be undertaken by each such party, the authorized representative of the joint venture, and an undertaking that the several parties are jointly and severally liable to the Employer for the performance of the contract together with details of experience and past performance of each of the parties to the joint venture on works of a similar nature within the past five years, current works on hand and other contractual commitments.” That paragraph also shows that the tender documents themselves prescribe the norms for submission of tender by joint ventures. That being so, there is no merit in the 2nd objection as well. Regarding the 3rd objection, of course there is no prescription either way in any of the tender documents. In other words there is neither permission nor prohibition in tenders being submitted by joint ventures in tender form purchased by one of the partners of the joint W.P.(C)No.32896 of 2009 -9- venture. I am of opinion that, it is illogical to reject a tender on the ground that the tender form was submitted by only one of the partners of the joint venture especially when there is no proscription against submission of joint venture tenders using tender documents purchased by one of the partners of the joint ventures. Therefore none of the three objections mentioned in Ext.P2 are valid for disqualifying the petitioners. 7. Of course some other new reasons are also now put forward in the counter affidavit, which I am not inclined to go into, in so far as the petitioners' tender has been rejected only on the ground that the joint venture tenders are not permissible. 8. There is a public interest aspect also in this writ petition. Admittedly the lowest tender is that of the petitioners and they have agreed to do the work at the rate of 17.90% above the estimate rate. The next is M/s. P.M.R. Construction Company who have quoted 32.8% above the estimate rate. But going by Ext.P6 they are prepared to do W.P.(C)No.32896 of 2009 -10- it only for 30% above the estimate rate. The tender documents have been supplied to the petitioner after ascertaining his eligibility on the basis of documents submitted by the 1st petitioner. As such the 1st petitioner is alone is eligible even without the junction of the 2nd petitioner. That being so, when the petitioners are prepared to do the work at 17.90% above estimate rate, I am at a complete loss to understand why the respondents 2 & 3 are avoiding the petitioners altogether on such unsustainable reasons to accept a far higher bid. 9. In view of the above discussion, I am satisfied that, the reasons given in Ext.P2 for disqualifying the petitioners from taking part in the tender proceedings are unsustainable and accordingly they are quashed. The respondents 2 & 3 are directed to reconsider the matter after taking into account the tender of the petitioners at the rate of 17.90% above the estimate rate now offered by them and take a final decision in the matter as expeditiously as possible at any rate within a period of two months from the W.P.(C)No.32896 of 2009 -11- date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/