1. This Writ Petition is filed seeking the following prayers.
I) Issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the bid submitted by the Joint Venture of respondents 4 and 5 in pursuance to Exhibit P1 is non responsive and direct the Kerala Water Authority to finalize the tender proceedings after excluding the tender submitted by the Joint Venture of the 4th and 5th respondents;
(i(A)) Issue a writ of mandamus, or other appropriate writ or order, declaring that the decision to finalise the tender proceedings and award the work in favour of the tender submitted by the joint venture of the 4th and 5th respondents during the pendency of this Writ Petition is arbitrary and illegal as the bid of the joint venture of the 4th and 5th respondents is nonresponsive.
2. The petitioner is aggrieved by the action of the respondents 1 to 3 in awarding the contract, for which tender was invited by Ext.P1, to the joint venture between respondents 4 and 5.
3. Heard Sri. George Poonthottam, the learned Senior Counsel for the petitioner, Sri. Ramesh Babu, the learned Senior Counsel for the 4th respondent, Sri. Benjamin Paul, the learned Standing Counsel for the Kerala Water Authority as well as Smt. Jeena Joseph, the learned counsel for the 5th respondent.
4. It is submitted by the learned counsel for the petitioner that Ext.P1 notice inviting tender was specific as to the requirements for pre-qualification. It was stated that the tenders are to be submitted electronically and attested copies of all documents should be submitted by scanning and uploading. The originals/attested copy of the documents should be produced within a period of three days of the opening of the tender. It is stated that the last date for submission of tender, though initially fixed as 08.04.2019, was subsequently extended to 22.05.2019.
5. The petitioner submitted its bid on 22.05.2019, which was acknowledged by the respondents. It is submitted that the 4th respondent had submitted a bid on 21.05.2019 on the basis of a joint venture agreement between respondents 4 and 5. It is contended by the learned Senior Counsel for the petitioner that Ext.P5 power of attorney, authorizing Mr. Reji Markose, General Manager (Marketing) of the 5th respondent, to enter into a joint venture agreement had been executed by its Managing Director at Gurugram in Uttar Pradesh on 30.04.2019. However, the said document was notarized at Thiruvananthapuram on 21.05.2019 and signature of Mr.Reji Markose, in whose favour the power of attorney was executed, has not been attested. Further, the signature of witnesses was absent in Ext.P5.
6. With regard to Ext.P6 joint venture agreement, it is contended that since in Ext.P5, the name of Sri. Reji Markose is not expressed to be for and on behalf of the 4th respondent, it is not a proper joint venture agreement between the 4th and 5th respondents. It is stated that the attestation of Ext.P6 by the Notary Public is also defective.
7. With regard to Ext.P7 general Power of Attorney executed by respondents 4 and 5 authorising the Managing Director to sign the tender, it is stated that, the said power of attorney is also defective, in as much as it is not seen to be executed for and on behalf of the 5th respondent.
8. With regard to forms for identification and financial data sheets submitted by respondents 4 and 5, it is stated that Exts.P8 and P9 are not signed. It is contended that form Q6 which provides for the details of the personnel who will be employed by the tenderer also is unsigned and does not bear any signature and designation and the seal of the company is conspicuously absent. It is stated that the copies of form Q8 in Exts. P11 and P12 are also unsigned and does not bear the seal of the company.
9. It is further submitted that Form Q8 was with regard to record of litigation and that filing of WP(C) No.1374 of 2018 by the 4th respondent against the Kerala Water Authority was suppressed in the form submitted by the 4th respondent. It was stated that the respondent has no litigation with respect to the subject and that the said declaration was patently incorrect in view of pendency of WP(C) No.1374 of 2018.
10. It is submitted that the petitioner had preferred a complaint pointing out that the tender submitted by respondents 4 and 5 jointly was defective and that the joint venture was not prequalified to participate in the tender proceedings.
11. However, Ext.P15 reply was given by the Water Authority stating that the relevant aspects had been verified and it was found that respondents 4 and 5 are eligible to participate in the tender. It is stated that the price bids were thereafter opened and the work was awarded to the joint venture of respondents 4 and 5 which is under challenge.
12. The learned Senior Counsel places reliance on the formats Q4, Q6 and Q8 provided in Ext.P2 to point out that serious discrepancies vitiated the bid documents produced by respondents 4 and 5. It is contended that in view of the fact that, Ext.P1 specifically stated that the information should be submitted in the formats and in no other form, the respondents ought not to have accepted the bid submitted by respondents 4 and 5 and pre-qualification of the joint venture of respondents 4 and 5 is therefore completely vitiated.
13. A counter affidavit has been placed on record by respondents 1 to 3. It is stated therein that the work tendered was of extremely urgent nature and the completion of the work of providing water from the Neyyar Dam to Thiruvananthapuram city was a higher priority work. It is stated in paragraphs 9 and 10 of the counter affidavit of the respondents 1 to 3 as follows:-
9. The tendered work is technically more complex with floating intake structure with submersible centrifugal pumpsets which is innovative technology going to be implemented in KWA for the first time. Even though four bidders participated in the prebid meeting for the above tender and many other firms outside Kerala made enquiry over phone and by email, only two bidders submitted the bids.
10. On evaluating the technical bids submitted by both the bidders, Special Committee directed to obtain certain clarifications/documents from both bidders for satisfying the NIT conditions. The 4th respondent submitted all the clarification/ documents called for. But the petitioner did not turn up and submitted the called for details. But both bidders (petitioner and fourth respondent) were prequalified even though the petitioner did not submit the clarification since the defects are not in the rejection clause as per NIT condition and are seen as curable mistakes. Also if one of the bidders were qualified the tender would have become single tender and is to be cancelled being single tender in first tender call as pre prevailing rules in KWA. For retendering the work, next tendering procedures can be started only after getting revised administrative sanction, technical sanction etc. which will take a further two years time. If a severe drought occurs just like the drought occurred in 2017 it will be difficulty to manage with the present scheme with Peppara as source. True copy of the letter dated 04.07.2019 issued by the Superintending Engineer to the petitioner to cure the defects in the documents produced by the petitioner is produced herewith and marked as Exhibit R1(a).
14. Respondents 4 and 5 also placed counter affidavits on record. It is stated that the defects pointed out by the petitioner are trivial or technical in nature and that even if the existence of such defects are admitted, it would make no difference to the outcome of the case, since the respondents' joint venture had all the requisite qualifications to participate in the tender and this aspect had been verified and found correct by the tendering authority. It is further submitted that ,in response to a notice issued by the Kerala Water Authority, respondents 4 and 5 had corrected and revised the documents, while the petitioner had chosen not to respond to the clarification letter. It is further contended that the tender had been invited as early as on 08.04.2019. The last date for submission of bid documents was 22.05.2019. The technical bid was opened on 24.05.2019. The bids were forwarded to the Chief Engineer on 13.06.2019 to decide on the pre-qualification. A special committee constituted for the purpose took a decision to prequalify both the tenderers on 21.06.2019. Thereafter, notices were issued to the petitioner point out six defects in the bid documents submitted and seeking clarifications with regard to the same on 04.07.2019. No reply was submitted by the petitioner. Similar notices had been issued to respondents 4 and 5 as well on 02.07.2019. The contesting respondents clarified all the aspects and produced revised documents as necessary.
15. It is stated that the petitioner has raised an additional ground in the reply affidavit that there were litigations pending between the 4th respondent and the Water Authority and that it was in suppression of the said fact that the bid had been submitted. The learned senior counsel for the 4th respondent would contend that there was no pending litigation between the parties and W.P.(C) No.1374 of 2018 referred to by the petitioner had been disposed of on 19.03.2019 and subsequently orders had also been passed pursuant thereto. It is further submitted that the question in the form was specifically with regard to any dispute with previous clients during the last 10 years and since the Water Authority was the current client, who was well aware of disposal of W.P.(C) No.1374 of 2018, the nonmentioning of the said writ petition in the form was perfectly in order. It is also stated that the bid of the joint venture of R4 and R5 was 6.79% below the PAC, while that of the petitioner was 5% above which amounts to a difference of Rs.7,06,91,937/-.
16. I have considered the contentions advanced. The allegations raised by the writ petitioner against the pre-qualification of respondents 4 and 5 are essentially with regard to defects in the bid documents. The Water Authority in its counter affidavit has specifically stated that in response to an opportunity granted to the 4 th & 5th respondents, the major defects noted in the bid documents had been rectified and revised documents had been produced by the joint venture to the satisfaction of the Water Authority. It is also contended that W.P.(C) No.1374 of 2018 filed by the 4th respondent had been disposed of directing the Managing Director of the Water Authority to consider and pass orders on representation submitted by the 4th respondent and that orders had subsequently been passed on the said representation. It is contended that in view of the specific questions in the form, there was no discrepancy in the answers given by the 4th respondent.
17. Having considered the contentions advanced, I am of the opinion that the Water Authority, who is the tender issuing authority, is the competent authority to decide on the question of prequalification of a entity participating in the tender. In the instant case, the contention of the petitioner with regard to the prequalification is confined to questions of technical flaws in the bid and documents accompanying it. When the tender inviting authority takes a contention that the defects have been subsequently rectified by the tenderer or that the defects are so trivial or hyper technical in nature, I am of the opinion that it would not be proper for this Court, in the absence of any allegation as to the mala fide or extraneous consideration, to enter into an enquiry as to the meeting of the prequalification criteria by the successful bidder. The Water Authority has supported the case of respondents 4 and 5 that the bid documents as well as the formats had been signed electronically before uploading the same and that the hard copies contain the signature and seal as required. It is further contended that the power of attorney produced as Ext.P7 as well as the joint venture agreement was signed by an authorised signatories specifically empowered on that behalf, for and on behalf of 4th & 5th respondents. In the above view of the matter, since the tender inviting authority has taken a stand that all relevant matters had been taken into account by it, I am of the opinion that this Court would not be justified in further de
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lving in to the factual aspects. 18. Moreover, it is an admitted fact that the last date for submission of tender was on 22.05.2019. The technical bid was opened on 24.05.2019. A decision to accept both the bids as pre qualified was taken on 21.06.2019. After obtaining clarification, the decision to pre qualify both the bidders was confirmed on 27.07.2019. Both the bidders were informed accordingly. There was no challenge against the acceptance of technical bid of respondents 4 and 5 at that juncture by the petitioner. It appears that the financial bid was opened on 16.08.2019 and the work was awarded to the joint venture of the respondents 4 and 5 on 18.09.2019. It was only on 17.09.2019, long after a decision had been taken by the respondents, to accept the bid submitted by respondents 4 and 5 as pre qualified, that this Writ Petition had been filed. The petitioner apparently waited till the opening of the financial bid to see whether the petitioner would be the successful bidder and it was only after finding that this was not so that, this Writ Petition had been filed. In the facts and circumstances as stated above, I am of the opinion that any interference with the decision of the respondents to pre-qualify respondents 4 and 5 as a joint venture to participate in the bid would be completely unjustified. The Writ Petition fails and is accordingly dismissed.