(Prayer: These writ petitions are filed under Article 226 of the Constitution of India praying to set aside the resolution passed by the Respondent No.2 Committee in its 7th Meeting held on 26.05.2017 Vide Annexure-N and etc.)
1. The petitioner has made the following prayers before this Court:-
a) Issue a writ of certiorari or order or direction to set aside the resolution passed by the 2nd respondent committee in its 7th Meeting held on 26.05.2017 vide Annexure-'N' in so far as it relates to reduction of 225 and 95 DUs in respect of package II and IV respectively in pursuance to the Tender Notification.
b) Issue a writ of mandamus directing the 3rd respondent to issue LOA and work order based on the resolution passed by the 2nd respondent committed in its meeting held on 18.02.2017 vide Annexure-'F' and forbear the respondent in awarding contract in favour of any other person other than the petitioner in respect of construction of 893 DUs in package II and 457 DUs in package IV respectively, in pursuance to the Tender Notification.
2. The brief facts of the case are that the Karnataka Slum Development Board ("the Board", for short) had invited tenders on 27.10.2014, for construction of houses including infrastructure in various slums of Bengaluru, Mysuru, and Madhugiri, under the 'Rajiv Awas Yojna' ("RAY", for short). Since the petitioner was eager to participate in the tender process, on 02.01.2015, the petitioner had submitted his bids on Package II and IV pertaining to Bangalore City Slums in Rajajinagar, Mahalakshmipuram, and T. Dasarahalli area. According to the petitioner, it remitted EMD, and complied with all the other conditions of the Tender. Subsequently, the Scheme was subsumed under the Scheme Pradhan Mantri Awas Housing ("PMAH", for short). In order to bring transparency to the tender process, the Government had constituted a State level Sanctioning and Monitoring Committee ("the Committee", for short). In its Sixth Meeting, held on 18.02.2017, the Committee approved the proposal of the Board to award construction of houses covered under eleven packages to the lowest evaluated bidders with certain conditions.
3. According to the petitioner, it was the lowest bidder in Package II and IV. Therefore, its tender was approved. According to the petitioner, while the Letter of Acceptance and Work Order were issued for the remaining nine tenderers, the Work Order and Letter of Acceptance were not issued to the petitioner, with regard to Package II and IV. Subsequently, on 26.05.2017, in its Seventh Meeting, the Committee approved reduction of dwelling units to be constructed in Package II and IV, and directed the Board to submit a detailed project report. Therefore, on 16.10.2017, the Board submitted a detailed project report. But, since the Committee was not satisfied, it again directed the Board to submit a report. Since the petitioner was aggrieved by the delay of issuance of Letter of Approval and the Work Order, it submitted a representation on 27.11.2017, before the Department of Housing, and the State Level Sanctioning & Monitoring Committee, the respondent Nos.1 and 2. However, even the representations have not elicited any response. For, so far, the work order was not issued to the petitioner. Hence, this petition before this Court.
4. Mr. Laxminarayana, the learned Senior Counsel for the petitioner, has raised the following pleas, before this court:-
Firstly, that the Tender Accepting Committee had approved the tender application submitted by the petitioner. However, in the Sixth meeting of the Committee, a decision was taken to approve the bid of the lowest evaluated bidder subject to certain conditions. Therefore, keeping in mind the conditions approved by the Committee, the petitioner's consent was sought by the Board by its letter dated 24.03.2017, and another letter also dated 24.03.2017 (Annexure-'F' and 'G'). Considering the conditions prescribed by the Board, by letter dated 06.04.2017, the petitioner had accepted the conditions.
Secondly, relying on Section 13 of the Karnataka Transparency in Public Procurements Act, 1999, ("the Act", for short), the learned Senior Counsel submits that once a tender has been approved, the same could not have been ignored. Therefore, the respondents are not justified in not issuing the work order in favour of the petitioner. Therefore, the decision taken by the Committee dated 26.05.2017, for reducing the number of dwelling houses, and omission on the part of the respondent in not issuing the Letter of Acceptance and Work Order, is clearly unsustainable.
Thirdly, relying on Rule 26 of the Karnataka Transparency in Public Procurements Rules, 2000 ("the Rules", for short), the learned Senior Counsel has emphasized that, as soon as the tenderer, qualified to perform the contract is identified, in accordance with Section 13, the Tender Accepting Authority is under a legal duty to accept the tender, and communicate the acceptance of the tender to the successful bidder. Therefore, Rule 26 of the Rules is being violated by the respondents.
5. On the other hand, Mr. S. P. Sathisha, the learned counsel for the respondent No.3, has pleaded that a tender is nothing but an offer on one side, inviting offers from the other side. As long as the situation continues to be an offer, and counter-offer, the petitioner is not justified in seeking relief against the respondent, to issue the Letter of Acceptance and Work Order, to the petitioner.
Secondly, merely because tender may have been approved, but until and unless it is accepted unequivocally, the petitioner cannot have the right to claim that work order should be issued to it.
Thirdly, the issue with regard to acceptance of tender and grant of work order continues to be in the realm of possibilities. For, after the tender bids were considered, it was noticed that Ninety-five slum dwellers have already constructed their own houses. Thus, the number of units which need to be constructed was reduced. Therefore, the respondent No.3 had sought the consent of the Committee, the respondent No.2. The Committee had approved the report of the number of dwelling houses. Subsequently, by letter dated 30.01.2018, the respondent No.3 had also sought the opinion of the Committee, whether the letter of acceptance, and the work order should be issued to the petitioner, or not ? Whether the respondent No.3 should be permitted to re-tender the entire project? Therefore, according to the learned counsel, everything continues to exist in the realm of possibilities. Hence, the petitioner can neither challenge the decision taken by the Committee to reduce the number of dwelling houses, nor seek a writ of mandamus, to direct the respondent No.3 to issue the Letter of Acceptance and Work Order.
6. Heard the learned counsel for the parties, and perused the records.
7. It is, indeed, trite to state that tender is a situation, where offers and counter-offers are made. Moreover, there is no requirement that the lowest bidder has to be necessarily accepted by the respondent. For acceptance of a bid, other factors affect the decision, rather than just the financial aspect. Therefore, in catena of cases, the Hon'ble Supreme Court has clearly opined that even a lowest bidder does not have the right, or to claim that his bid should be accepted by the Tender Accepting Authority. Moreover, a bare perusal of the facts narrated above, clearly reveals that even after the tender was approved, no order of acceptance was passed in favour of the petitioner. In fact, the respondent No.3 had to seek permission of the Committee to reduce the number of dwelling units. Since the respondent No.3 has given cogent reasons for wanting to reduce the number of dwelling units, the decision of the Committee dated 26.05.2017, cannot be faulted.
8. Section 13 of the Act, is as under:-
13. Acceptance of Tender -
The Tender Accepting Authority shall, after following such procedure as may be prescribed pass order accepting the tender and shall communicate the information relating to acceptance of tender together with a comparative analysis and reasons for accepting of tender to the procurement entity and the Tender Bulletin Officer:
Provided that where the Tender Accepting Authority consists of single officer who is due to retire within the next six months, from the date fixed for the acceptance for tender, he shall not act to accept the tender without obtaining prior approval of the Procurement Entity:
Provided further that subject to such general or special order as may be issued by the Government from time to time, the Tender Accepting Authority may before passing order accepting a tender negotiate with lowest tenderer.
9. A bare perusal of the said Section clearly reveals that the provision imposes certain duties upon the Tender Accepting Authority. The provision requires that the Tender Accepting Authority after following certain procedure, should pass an order, accepting the tender, and shall communicate the information relating to acceptance of the tender Procurement Entity and the Tender Bulletin Officer. However, in the present case, there is no order accepting the tender process by the Tender Accepting Authority. Moreover, Section 14 of the Act, permits the Tender Accepting Authority to reject all the Tenders on the ground of changes in the scope of procurement, failure of anticipated financial resource, accidents, calamities or any other ground at any time before passing the order of acceptance under Section 13.
10. Rule 26 of the Rules is as under:-
26. Preparation of evaluation report and award of tenders - (1) Tender Scrutiny Committee or the officer inviting tender shall prepare detailed evaluation report which shall be considered by the Tender Accepting Authority before taking a final decision on the tender.
(2) As soon as the tenderer qualified to perform the contract is identified, in accordance with Section 13, the Tender Accepting Authority shall pass orders accepting the tender and communicate the order of acceptance to the successful tenders. The Tender Accepting Authority shall also send to the Tender Bulletin Officer a statement of evaluation of the tenders with a comparative statement of tenders received and decision thereon for publication in the Tender Bulletin.
(3) Within such reasonable time as may be indicated in the tender documents, the tenderor whose tender has been accepted will be required to execute the contract agreement in the specified format.
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n case the successful tenderer fails to execute necessary agreement under sub-rule (3) within the period specified, then Earnest Money Deposit shall be forfeited and his tender held as non-responsive. 11. A bare perusal of the Rule clearly reveals that the Tender Scrutiny Committee is required to provide a detailed evaluation report before taking a decision on the tender. According to sub-rule (2) of Rule 26 of the Rules, as soon as the tenderer, qualified to perform the contract, is identified in accordance with Section 13, the Tender Accepting Authority is required to pass an order, accepting the tender and to communicate the same to the successful bidder. However, in the present case, the said stage has not even been reached as the Tender Accepting Authority has not passed any order. 12. Thus, at best, the petitioner has an inchoate right of consideration. But it does not have a right to seek a writ of mandamus to direct the respondent to accept the bid, and to issue the Letter of Acceptance, and Work Order in its favour. 13. For the reasons stated above, this Court does not find any merit in the present writ petitions. They are hereby dismissed.