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2009 DIGILAW 809 (KER)

Joemon Joseph v. Harbour Engineering Department

2009-08-25

THOTTATHIL B.RADHAKRISHNAN

body2009
Judgment : 1. The Government of Kerala issued administrative sanction for the construction of Kasaragod Fishery Harbour and technical sanction was issued by the Chief Engineer of the Harbour Engineering Department for the construction of Breakwater and Shore Protection Wall as part of the Rashtriya Krishi Vikas Yojana. Following that, the Superintending Engineer, Harbour Engineering, North Circle, Kozhikode invited pre-qualification tenders for selecting contractors for that work. In response to that tender notification, seven pre-qualification tenders were received. They were scrutinised by the Superintending Engineer and placed before the pre-qualification committee. That committee verified the pre-qualification documents on 20.5.2009 and concluded that only three tenderers, including the additional 6th respondent herein, have the required experience as per the notice inviting tenders (hereinafter, 'NIT', for short) in executing similar nature of work amounting to more than 40% of the PAC of the work, in relation to which, NIT was issued. This led to the issuance of Ext.P6 proceedings by the Chief Engineer. 2. The petitioner is one among those found to be not eligible in terms of the decision contained in Ext.P6. He, therefore, filed this writ petition on 25.5.2009 challenging his exclusion at the pre-qualification stage and obtained an interim order of stay of actual award of contract. That interim order continues as of now. With the passage of time, the official respondents concluded the proceedings looking into the financial bids and it was noticed that the additional 6th respondent had quoted the lowest. The official respondents are yet to conclude on their choice as to who shall be awarded the work. The additional 6th respondent, on his own volition, applied for impleadment in these proceedings, obviously since he was the lowest tenderer. His application for impleadment was allowed. On his coming on record, the writ petitioner stood also with leave having been granted by this Court to amend the writ petition challenging the pre-qualification clearance given to the 6th respondent. Thus, the scope of the writ petition was enlarged to that extent. 3. In answer to the writ petition, the official respondents have placed a counter affidavit through the Superintending Engineer, the third respondent. The additional 6th respondent has also filed counter affidavit and placed documents in support of his contentions as to his eligibility for the pre- qualification. 4. Thus, the scope of the writ petition was enlarged to that extent. 3. In answer to the writ petition, the official respondents have placed a counter affidavit through the Superintending Engineer, the third respondent. The additional 6th respondent has also filed counter affidavit and placed documents in support of his contentions as to his eligibility for the pre- qualification. 4. From the aforesaid, the issues that arise for decision in this writ petition have to be identified as; (i) the sustainability of the petitioner's challenge to his exclusion in the pre-qualification round; (ii) his challenge to the 6th respondent's inclusion after the pre-qualification and (iii) whether this Court would, in exercise of Article 226 of the Constitution, interfere in the matter. 5. Heard learned senior counsel for the petitioner, learned Government Pleader and learned counsel appearing for the 6th respondent. Reference was made to a series of judgments of the Apex Court laying down broad parameters of writ jurisdiction and the exercise of authority in writ jurisdiction in relation to contracts, particularly at the instance of a person who has been found to be unqualified; and distinction between contracts in public realm and in private realm, as also the justiciability of the decision of a public authority in relation to a contract. Similarly, references were made to certain judgments touching on one of the crucial aspects arising for decision in this case, to wit, the bone of contention on merits, which is as to whether the work that the petitioner held out as an experience is essentially one which is similar to the work covered by the NIT. The decision of the Apex Court in Siemon Public Communications Pvt. Ltd. v. Union of India [AIR 2009 SC 1204], Villianur Iyarkkai Padukappu Maiyam v. Union of India [JT 2009(8) SC 339], Raunaq International Ltd. v. I.V.R. Constructions Ltd. [AIR 1999 SC 393] and Ramana Dayaram Shetty v. The International Airport Authority of India [AIR 1979 SC 1628] were referred to by the learned counsel on either side. 6. 6. On assimilation of the aforesaid precedents, the crux of the law laid by the Apex Court is that contractual matters involving Government and other public bodies are essentially commercial transactions, however, that in such transactions, the courts would loath interfere, except in cases where glaring illegality resulting in arbitrariness is demonstrated though procedural fairness, transparency and other yardsticks for judicial review of administrative action should also stand satisfied. The law, as settled by the Apex Court, is certain that the courts, in judicial review in exercise of writ jurisdiction, would not interfere unless the action taken by the public authority is one contrasting the public interest and mere competitive contentions on merits of the transaction would be insufficient for the writ court to step in and interfere with the policy decisions and commercial decisions of Government and other public authorities in relation to contracts. The decision in Raunaq International Ltd. (supra) was also specifically referred to, to point out that if the one challenging the award of contract is shown to be one who is unqualified to be in the field of choice, he shall not be heard to contend as against any of the competitors. This is firstly because it is not for the writ court to consider the competitive claims and to decide as to who shall be awarded the contract. The jurisdiction is confined to a review of the files to ascertain whether due procedure has been followed and whether the administrative decision has been taken with the required bench mark of fairness, application of mind, reasonableness etc. and to see that the decision awarding a contract is not ultimately perverse, unconscionable to a reasonable prudent man and is not one against public interest. 7. With the aforesaid principles of law in mind, it needs to be taken that the work in question is one about which a multi-level decision making process has been undertaken even before finalising the tender documents. The prescription as to pre-qualification and other relevant details have been fixed after concluding on the nature of the contract and the official details as to drawings etc. The work relates to the construction of breakwaters and shore protection wall. The prescription as to pre-qualification and other relevant details have been fixed after concluding on the nature of the contract and the official details as to drawings etc. The work relates to the construction of breakwaters and shore protection wall. Adverting to Ext.P3 tender schedule, it can be seen that the construction of breakwaters and shore protection wall for the Kasaragod Fishery Harbour gets classified into the construction of North Breakwater, South Breakwater, Shore Protection Wall and Construction of Approach Road to the breakwater, the details of which are put in four Appendices, A to D. 8. The petitioner attacks his exclusion in the pre-qualification round on the plea that while the pre-qualification as prescribed was that one should have satisfactorily completed at least one major similar civil work, he has been excluded on the premise that the previous work done by him, as evidenced by Ext.P4, is not a similar work. This is ultimately the issue on which the petitioner's claim for being considered as qualified has to be tested. 9. In support of the writ petition, learned senior counsel for the petitioner referred to the decision of the Apex Court in Nat Steel Equipment Pvt. Ltd. v. Collector of Central Excise [AIR 1988 SC 631] to show that the word "similar" is a significant expression and does not mean identical. It means, corresponding to or resembling to any other, somewhat liking or having a general likeness. The word "similar" is one of a wider impact than the word "same" and therefore, it is argued on behalf of the petitioner that the work evidenced by Ext.P4 is one which should have been treated as similar to the work covered by the NIT. The decision of the Apex Court in Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. [1997 (1) SCC 53] was cited to state that the procedure to be followed in the matter of acceptance of a tender and the consideration of the tenders received should be transparent, fair and open and that whatever procedure the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. 10. 10. Per contra, learned counsel appearing for the 6th respondent, supporting the exclusion of the petitioner at the pre-qualification stage, pointed out that a study of Ext.P4 as also another certificate relied on by the petitioner along with his tender document which is available at page 71 of the petitioner's original tender document as placed before this Court by the writ petitioner, would categorically show that the work which the petitioner claims to have done earlier for the TIDEL PARK Limited has no comparison with the work covered by the NIT and elaborately described under the tender schedule Ext.P3. 11. The decisions of the Supreme Court referred to earlier stand to advise me as precedents in law, that in matters relating to policy, including expertise in technical matters, it is not for the Court to substitute its wisdom. If the Court is to design the breakwater or to consider the competence of a person to construct a breakwater and a sea wall, that would, only be, not part of judicial function, but would be usurping the technical function of the engineers. Such an exercise would only be to step into the arena which is exclusively for the Government and the departmental officials who are treated to be experts to deal with such matters. This is the logic of saying that the courts have only to ensure that those who are bestowed with public authority have done what they ought to do and what is expected of them in the context of their public function. 12. Ext.P4 which is available at page No.69 in the tender document of the petitioner and another certificate dated 6.9.2008 which is available at page 71 of that document would show that the petitioner carried out the work for TIDEL PARK Ltd. That work was called "Mass Earthwork excavation for Information Technology Park" at Villankurichi, Coimbatore. Ext.P4 shows that the contractor (petitioner) has carried out the handling of 2, 10,000 Cum of Hard Rock. This item includes the Rock Blasting, Loading of blasted rubble to trucks, Transportation of rubble of various sizes and dumping the rubble at the earmarked areas. The certificate at page 71 of the petitioner's tender document gives a further description classifying the work into four categories, quantum wise. This item includes the Rock Blasting, Loading of blasted rubble to trucks, Transportation of rubble of various sizes and dumping the rubble at the earmarked areas. The certificate at page 71 of the petitioner's tender document gives a further description classifying the work into four categories, quantum wise. The first is earth work excavation in all kinds of soil except in disintegrated/hard rock; second is excavation in disintegrated/weathered/soft rock by mechanical means and disposal; third is general excavation in hard rock with fissures/boulders by chiseling/wedging/breaking by use of approved chemicals to the required level and disposal and the fourth is excavation in hard rock/boulders with fissures/ boulders by controlled blasting to the required level and disposal. Reverting to Ext.P3, the tender schedule of the petitioner covered by NIT, of which we are concerned, as already noticed, the work gets classified into four. Appendix A relates to South Breakwater and Appendix B relates to North breakwater. It is clear that the work includes supply of granite, core of rubble etc. and separating them in uniform layers at such thickness as is prescribed in the tender schedule to form different layers called filter layers, armour layers etc. to obtain the structure which has to ultimately stand in the sea. The drawings which were placed before me in the presence of counsel and explained over by Sri.K.Abdul Majeed, Assistant Executive Engineer, Office of the Superintending Engineer, amply show that the technical expertise that has to go into the work covered by NIT is of a highly sophisticated nature which require planned placing and laying of different sizes of materials, including granite, different similar pieces of blasted rocks, handling huge and heavy pieces ranging from 1 to 5 tones and also of laying them in such a manner as is required for the technical purpose of sustaining finished breakwaters in the sea to obtain the objective sought to be achieved, viz., augmentation of the Kasaragod Fishery Harbour. This cannot be compared, even from a common man's view point, to what could be seen from the certificate at page 71 of the tender document of the petitioner which would show that the thrust of the expertise gained was in the matter of excavation and not in the matter of laying. This cannot be compared, even from a common man's view point, to what could be seen from the certificate at page 71 of the tender document of the petitioner which would show that the thrust of the expertise gained was in the matter of excavation and not in the matter of laying. The word "disposal" used in the certificate at page 71 to the petitioner's tender document clearly indicates that the thrust was on the excavation and the disposal was to be made by dumping the rubble at the earmarked areas as evidenced by the second paragraph of the certificate. This by itself makes it crystal clear that the expertise that the petitioner holds out, was in relation to excavation of granite etc. rather than laying of granites, rubble etc of different sizes in terms of any particular technical prescription. Beyond that is the fact that the work projected by the petitioner as experience was carried out, not in the sea but on land, while the work covered by NIT is to be carried out in the sea. With this fact situation, it is not right for the writ court to say that the decision making process has, in any manner, been deflected or has been done in an arbitrary fashion to exclude the petitioner from the field of choice. If I venture to look into the plea on facts, as regards the petitioner's challenge to the pre-qualification of the addition 6th respondent, the fundamental plea is that the material relied on as a certificate of the previous work done by the 6th respondent does not, in fact, satisfy the bench mark prescribed in the NIT. The petitioner's contention is that Ext.P10 certificate shows only that the 6th respondent had conveyed the entire agreement quantity well within the agreement period of completion. Ext.P10 shows that the agreement quantity was 2,27,472 metric tons and the executed quantity is 2,86,839 MT. This obviously shows that after the initial agreement, there was a further escalation in the quantum of the work to be done in so far as it relates to the contract covered by Ext.P10 certificate. What was relevant is not the excess quantity or additional work, but the fact that the 6th respondent had completed the agreed quantity of work before the cut off date. Ext.P10 shows that he had "conveyed the entire agreement quantity". What was relevant is not the excess quantity or additional work, but the fact that the 6th respondent had completed the agreed quantity of work before the cut off date. Ext.P10 shows that he had "conveyed the entire agreement quantity". If I were to advert to Exts.P15 and P16 produced by the petitioner himself, Ext.P16 contains the clear statement by the Government of Puducherry that the 6th respondent herein had completed the quantum of work as per the agreement before the extended period. Therefore, there is no ambiguity about what has been certified by the Government of Puducherry. The certification is regarding the completion of the work and not merely supply of any material. 13. This leaves two issues. Firstly, it is pointed out by the petitioner that the work carried out by the 6th respondent for the Puducherry Government, as per Ext.P4 certificate, had only a pre-qualification of some work on land and not on sea. That would have been a matter for the Government of Puducherry to take note of. At any rate, this is an irrelevant material or fact for the case in hand. Secondly, it is pointed out that the materials dug out by the petitioner through the machinery of the Right to Information Act would disclose that the work done by the 6th respondent for the Puducherry Government is itself subject matter of some vigilance enquiry etc. That is not a matter to gain attention of the writ court challenging the exclusion of the petitioner at the stage of pre-qualification. Learned Government Pleader has rightly indicated that such a material would not be left unnoticed by the Government as and when the question of awarding and concluding the contract would be ultimately considered. 14. The further plea of the petitioner is that the financial bid, when opened, showed a difference of 2 = crores between the offer made by the petitioner and the offer of the 6th respondent. It is pointed out that the petitioner's bid would have been the lowest. It is not the principle of law that the lowest bid is to be accepted. The first and foremost is the nature of the bid, which the case in hand, is the pre-qualification bid. There is no mandate that the Government shall always accept the lowest rate. It is pointed out that the petitioner's bid would have been the lowest. It is not the principle of law that the lowest bid is to be accepted. The first and foremost is the nature of the bid, which the case in hand, is the pre-qualification bid. There is no mandate that the Government shall always accept the lowest rate. It will be well within the prudence and competence of the Government to accept even higher rates provided circumstances warrant, having regard to the technical and other relevant aspects which may arise for consideration. For the aforesaid reasons, this writ petition fails. The same is accordingly dismissed. No costs.