Karnataka High Court
M/S Power Mech Projects Ltd vs K P C Gas Power Corporation Ltd on 22 February, 2024
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
W.A. No.749/2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. P.S. DINESH KUMAR, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT APPEAL NO.749 OF 2022 (GM-TEN)
BETWEEN:
M/S . POWER MECH PROJECTS LTD
FLAT NO.201, YESHWANTH RESIDENCY
WIDIA COLONY, MIYAPUR
HYDERABAD-500 049
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR. B. LAVAN KUMAR ...APPELLANT
(BY SHRI. V. BHARATH KUMAR, ADVOCATE)
AND:
1. KPC GAS POWER CORPORATION LTD
SHAKTI BHAVAN
RACE COURSE ROAD
BENGALURU-560 001
REPRESENTED BY ITS
MANAGING DIRECTOR
2. ADDITIONAL CHIEF SECRETARY
ENERGY DEPARTMENT
(APPELLATE AUTHORITY)
SHAKTHI BHAVAN
RACE COURSE ROAD
BENGALURU-560 001
W.A. No.749/2022
2
3. O AND M SOLUTIONS PVT. LTD
PLOT NO.24/1A
CHANDAKA INDUSTRIAL AREA
KITT CAMPUS, PATIA
BHUBANESWAR-751 021
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR. ARUN KUMAR CHAURASIA ...RESPONDENTS
(BY SHRI. J.N. AJAY, ADVOCATE FOR R1;
SHRI. SUDEV HEGDE, AGA FOR R2;
SHRI. R.V.S. NAIK, SENIOR ADVOCATE FOR
SHRI. NITIN PRASAD, ADVOCATE FOR R3)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 03.08.2022
PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN
MATTER BEARING WP No.19159/2021
THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, CHIEF JUSTICE, PRONOUNCED THE
FOLLOWING:-
JUDGMENT
This appeal is filed by the unsuccessful petitioner in
W.P. No.19159/2021 challenging the judgment dated August
03, 2022.
2. Heard Shri. Bharath Kumar, learned Advocate for
the appellant, Shri. Ajay J N, learned Advocate for Respondent
No.1, Shri. Sudev Hegde, learned Advocate for the State and
Shri. V.S.Naik, learned Senior Advocate for Respondent No.3.
3. Briefly stated the facts of the case are, KPC1
issued a Tender Notification for "Operation & Maintenance
Contract" for 1X370 MW Gas Combined Cycle Power Plant at
Yelahanka, Bengaluru. The last date for submission of bid
was 15.02.2021. There were two bidders, namely, M/s Power
Mech Projects Ltd.2 and O & M Solutions Pvt. Ltd.3
4. In respect of O & M Solutions, the KPC had received
certain information with regard to O & M Solutions work done
in Andhra Pradesh. The KPC sought for explanation and the
explanation subjected by O & M Solutions was found plausible
and the tender process was continued and financial bid was
opened.
5. Power Mech Ltd. challenged inclusion of O & M
Solutions before the Tribunal. The Tribunal allowed the
application and ordered for a fresh tender. Aggrieved, O & M
KPC Gas Power Corporation Limited
Power Mech Ltd
O& M Solutions
Solutions filed W.P.No. 19159 of 2021 and it has been
allowed. Aggrieved, Power Mech Ltd. has preferred this
appeal.
6. Shri. Bharath Kumar, for M/s Power Mech Projects
Ltd., submitted that:
O & M Solutions had intentionally suppressed the
letters dated 04.12.2020, issued by its earlier
contractor;
the tender ought to have been rejected as per
Clause 10(c) of the tender which requires that the
tender shall be rejected if the tenderers past
performance is not satisfactory.
7. Shri. Nayak, argued in favour of the impugned
judgment and order.
8. Opposing the appeal, Shri. Ajay, submitted that
there is a direction from the Apex Court in Civil Appeals No.
5810-5811/22 to conduct a six month trial before July 2024,
which cannot be done unless the tender is finalised.
9. We have heard rival contentions and perused the
records.
10. Undisputed facts of the case are, the KPC issued a
Tender Notification for "Operation & Maintenance Contract for
1X370 MW Gas Combined Cycle Power Plant" at Yelahanka,
Bengaluru. Power Mech Ltd. was in the tender fray, along
with O & M Solutions. The KPC sought explanation from O & M
Solutions with reagrd to its work in Andhra Pradesh. The
explanation offered was found plausible. The tender process
was continued.
11. The main grievance of Power Mech Ltd. is that, the
earlier contract of O & M Solutions with APGPCL4 was
terminated on the ground that APGPCL was not happy with
the services of O & M Solutions and therefore according to
Clause 10(c) of the instant tender, the bid of O & M Solutions
ought to have been rejected.
Andhra Pradesh Gas Power Corporation Limited
12. The letter issued by APGPCL reads as follows:
"Dear Sir,
Sub: APGPCL-Vijjeswaram-Performance of M/s O&M
Solutions (P) Ltd & authenticity of our letter reg.
Ref: 1. APGPCL Lr. No.APGPCL/HO/MD/OMS/D.No.479/21,
Dt.01.02.2021
2. Your Lr. No.CE(O &M) YCCPP/O&M/1906,
Dt.04.03.2021 received on 08.03.2021
@@@
With reference to your letter (2) cited above, as per your
request we are herewith furnish the following information.
1. The letter (1) cited above and in your letter
reference is issued by the APGPCL on closing of M/s
O&M Solutions (P) Ltd O&M contract.
2. APGPCL is not happy since they have not meeting
the terms and conditions of O&M contract. Hence
terminated by 31st March 2021.
This is for your favour of information."
13. Clause 10(c) of the tender issued by the KPC
reads as follows:
a) Not in the prescribed form
b) From any black-listed firm
c) From a tenderer whose past performance is not
satisfactory.
d) Not in conformity with KPCGPCL/YCCPP's requirement
as per tender terms and conditions.
e) One whose validity period is less than that specified in
the tender document.
f) Incomplete and or incorrectly submitted.
g) Conditional
h) On any other ground/s or reason/s not covered above
but detrimental to the interest of KPCGPCL/YCCPP and
comes to the knowledge / notice of KPCGPCL/YCCPP's
at any stage during tender process, without assigning
any reason for the same to the Tenderer.
i) The tender will be rejected, if the tenderer has not
uploaded in the e-portal an undertaking in the form of
a notarized affidavit (as per format Annexure-L2
enclosed) declaring that during the past five financial
years i.e., 2015-16, 2016-17, 2017-18, 2018-19 &
2019-20 and the period up to the date of submission
of bid,
Their EMD has not been forfeited.
None of their contracts have been terminated/
foreclosed on account of their default in
KPCL/KPCGPAL or elsewhere
They have not been anytime blacklisted/subject to
procedure initiated for blacklisting for participating
in the tenders issued by KPCL/KPCGPCL or
Government or Central, State PSUs or any other
utility in India."
14. It is not in dispute that the KPC after receiving
records from APGPCL called for explanation from O & M
Solutions and the explanation was accepted. Thus, it clear
that the KPC was satisfied with the explanation. The learned
Single Judge in para 4(d) of the impugned order has rightly
recorded that the satisfaction of the tender calling body is
important and not that of the competitors nor the Appellate
Authority.
15. The decision to select the bidders vests with the
KPC and it is purely executive in nature. Admittedly, the KPC
has isssued the tender and knows what is the best for its
Institution. It is settled that Courts shall not interfere with the
decisions involving technical evaluations.
16. In the light of the above discussion, we are at one
view taken by the learned Single Judge and accordingly, this
appeal is dismissed.
No costs.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
SPS
