Kerala High Court

M/S.Kingdom Protection Services ... vs The Registrar on 11 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE N.NAGARESH

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                      WP(C).No.24881 OF 2020(I)


PETITIONER:

               M/s.KINGDOM PROTECTION SERVICES PRIVATE LIMITED,
               D.NO.41/2445,
               SREEKALA ROAD,
               NEAR ERNAKULAM MEDICAL CENTRE,
               VENNALA.P.O,
               KOCHI-682028,
               REPRESENTED BY ITS DIRECTOR REJI.K.RAJAN.

               BY ADVS.
               SRI.M.JITHESH MENON
               SMT.K.INDU (POURNAMI)
               SRI.R.BRIJESH
               SRI.P.G.MAHESHKUMAR

RESPONDENTS:

      1        THE REGISTRAR,
               COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
               COCHIN UNIVERSITY.P.O,
               KALAMASSERY,
               ERNAKULAM, KOCHI-682022.

      2        GROUP VII GUARDS(INDIA)PVT.LTD,
               C.C.32/426, PALLLISSERY ROAD,
               NEAR PALLLISSERY JUNCTION,
               PALARIVATTOM,
               KOCHI-682025,
               REPRESENTED BY ITS AUTHORISED OFFICER.

               R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY
               R2 BY ADV. SRI.A.C.DEVY

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)No.24881/2020

                                   2




                              JUDGMENT

Dated this the 11th day of January, 2021

The petitioner a company running security services

is before this Court seeking to direct the 1st respondent to

allot work of supply of security personnel to the petitioner

for the year 2019-2020, in view of the fact that petitioner

is the lowest bidder.

2. The petitioner states that the 1st respondent

invited tenders for supply of security personnel for the

year 2019-2020. The petitioner was the successful

bidder and he was awarded the work of supplying the

security personnel to the University for the year 2019-

2020. Ext.P2 agreement was entered into. The period of

Ext.P2 agreement expired on 30.01.2020.

3. As Ext.P2 was expiring, the 1st respondent

invited fresh tenders for the work, the petitioner submitted WP(C)No.24881/2020

his bid. However, due to the outbreak of Covid-19

pandemic, the said tender proceedings could not be

finalised. The petitioner was granted extension of

contract in the meanwhile.

4. On 13.07.2020, the 1st respondent issued

Ext.P4 notification inviting bids for the work. Ext.P4

contained technical specifications and other

requirements. Ext.P4 specifically required that the rates

for service should be quoted "rate per head for 8 hours

duty per day (not inclusive of GST)" and it was made

clear that otherwise the tender/quotation will be

summarily rejected. Ext.P4 further stated that the

agencies submitting the quotation should have own

approved training centres to train the guards or should

have Memorandum Of Understanding signed with

approved training centres based at Kerala. The technical

specifications further required that the agency should

have a minimum of 10 years experience in the field and WP(C)No.24881/2020

that preference will be given to the companies have full

operation in Kerala with Head Quarters at Ernakulam.

Ext.P4 further stipulated that agencies should provide

minimum wages to the guards as per The Minimum

Wages Act.

5. The petitioner contended that among the five

agencies who bid pursuant to Ext.P4, only 2 agencies

including the petitioner quoted the rates as required in

the technical specifications. Three of the bidders did not

quote 'the rate per head for 8 hours duty per day' as

required under Ext.P4. Among the agencies who quoted

properly, the petitioner was the lowest bidder.

6. The petitioner understood that the contract

was going to be awarded to the 2nd respondent. The

petitioner was served with Ext.P11 letter of the 1 st

respondent, requiring the petitioner to continue his

service only till 14.11.2020.

7. The learned counsel for the petitioner WP(C)No.24881/2020

submitted that the award of work proposed to be made in

favour of the 2nd respondent, is absolutely illegal and

highly arbitrary. The proposed award in favour of the 2 nd

respondent is against the conditions contained in Ext.P4.

In the circumstances unless this Hon'ble Court interferes

in the matter, the petitioner will be put to irrecoverable

loss.

8. The 1st respondent filed a counter affidavit and

defended the writ petition. The 1 st respondent stated that

though there was a condition in the notification that the

rate per head for 8 hours duty per day (not inclusive of

GST) shall be quoted, only the petitioner and another

agency quoted the rates in that manner. Other bidders

quoted the rates on monthly/yearly basis. The five

agencies short listed by the technical evaluation

committee quoted rates adopting different yardstick.

Therefore the financial evaluation committee decided to

seek clarifications from those agencies in order to have a WP(C)No.24881/2020

reasonable comparison of rates.

9. Clarifications from those agencies were

obtained. On the basis of the said information, the rate

per head for 8 hours duty per day quoted was tabulated.

Thereupon it was found that the rate quoted by the 2 nd

respondent was the lowest. The financial evaluation

committee recommended to award the work to the 2 nd

respondent.

10. The Standing Counsel for the 1st respondent

submitted that a comparative assessment of the rates

quoted by the 2nd respondent and the petitioner shows

that the rate quoted by the 2 nd respondent is much less

than the rate quoted by the petitioner. There is a

difference of Rs.6 Lakhs per annum between the rates

quoted.

11. Heard the learned counsel for the petitioner

and learned Standing Counsel appearing for the 1 st

respondent and the counsel appearing for the 2 nd WP(C)No.24881/2020

respondent.

12. The prime grievance of the petitioner is that

quoting 'the rate per head for 8 hours duty per day (not

inclusive of GST)' was a mandatory condition as per

Ext.P4. Ext.P4 provided that if rate per head for 8 hours

duty per day is not quoted, quotation will be summarily

rejected. It has to be noted that on opening the bid the

1st respondent found that majority among the short listed

bidders did not quote the rate per head for 8 hours duty

per day. It is in such circumstances, the 1 st respondent

decide to obtain explanation regarding the rates quoted

by them.

13. The opportunity was not given to the 2 nd

respondent alone. On receipt of the requisite information,

the 1st respondent found that the rates quoted by the 2 nd

respondent is Rs.646.64/- and Rs.757.56/- for guard and

supervisor and the rates quoted by the petitioner is

Rs.662.57/- and Rs.789.7268/- respectively. The rate WP(C)No.24881/2020

quoted by the 2nd respondent was much advantageous to

the 1st respondent and if the said bid is accepted, the 1 st

respondent will be saving an amount of Rs.6 Lakhs per

annum.

14. The opportunity given by the 1 st respondent to

explain the rates quoted by the bidders has not legally

prejudiced the petitioner. The petitioner has no case that

the 2nd respondent or any other bidder who were given

such opportunity, have reduced the amount originally

quoted by them, to the prejudice of the petitioner.

15. The further contention of the petitioner is that

the technical specification made mention in Ext.P4

requires that the agencies providing security personals

should own approved training centers to train the guards

or should have Memorandum of Understanding signed

with approved training centers based at kerala. The

technical specifications also stipulated that companies

having full-fledged operational based in Kerala with Head WP(C)No.24881/2020

Quarter at Ernakulam will be preferred.

16. In this regard the 1st respondent pointed out

that the 2nd respondent has signed a Memorandum of

Understanding with M/s. Sparta Training Centre for

providing training of its personnel. The 2 nd respondent

has branch office at Palarivattom and its operations are

controlled by the Palarivattom branch office. The 1 st

respondent found that the training facility under M/s.

Sparta Training centre is sufficient enough. The technical

specifications given in Ext.P4 does not state that

exclusive preference will be given to companies having

full-fledged operational base in Kerala with Head quarters

at Ernakulam. The question of granting preference

comes only when the merit of the bids are equal in other

respects. In this case the bid amount of the 2 nd

respondent was found far less than that of the petitioner.

17. The Hon'ble Apex Court in Maa Binda

Railway [2014 3 SCC 760] has held that bidders

participating in the tender process cannot insist that their

bid/tenders should be accepted simply because a bid is

the highest or lowest. The Hon'ble Apex Court further

held that the scope of judicial review in matters relating to

award of contract by the State and its instrumentalities is

limited. Award of contract is essentially a commercial

transaction, which must be determined on the basis of

consideration of data relevant to such commercial

decision.

18. The Hon'ble Apex Court again held in Jagdish

Mandal v. State of Orissa and others [2007 14 SCC

517] that judicial review of administrative action is

intended to prevent arbitrariness, irrationality,

unreasonableness, bias and malafides. Its purpose is to

check whether choice or decision is made "Lawfully" and

not to check whether choice or decision is "Sound".

in commercial transaction.

Considering the circumstances under which

the 2nd respondent was selected by the 1 st respondent

and considering the law laid down by the Hon'ble Apex

Court in the afore judgment, this Court is of the

considered opinion that the action of the 1st respondent in

awarding the work to the 2nd respondent is in the interest

of the 1st respondent-University and is amply justified.

This Court therefore finds no reason to interfere with the

award of tender to the 2nd respondent. The writ petition

fails and accordingly it is dismissed.

Sd/-

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION PURSUANT TO CHANGE OF NAME ISSUED BY THE REGISTRAR OF COMPANIES DATED 17.01.2019

EXHIBIT P2 TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY DATED 1.2.2019

EXHIBIT P3 TRUE COPY OF THE LETTERS ISSUED BY THE 1ST RESPONDENT DATED 2.3.2020.

EXHIBIT P3(A) TRUE COPY OF THE LETTERS ISSUED BY THE 1ST RESPONDENT DATED 3.4.2020

EXHIBIT P3(B) TRUE COPY OF THE LETTERS ISSUED BY THE 1ST RESPONDENT DATED 27.5.2020

EXHIBIT P3(C) TRUE COPY OF THE LETERS ISSUED BY THE 1ST RESPONDENT DATED 24.6.2020

EXHIBIT P3(D) TRUE COPY OF THE LETTERS ISSUED BY THE 1ST RESPONDENT DATED 1-10-2020

EXHIBIT P4 TRUE COPY OF THE BID FORM ALONG WITH THE GENERAL TERMS AND CONDITIONS, AND TECHNICAL SPECIFICATIONS

EXHIBIT P5 TRUE COPY OF THE RATES WHICH WERE QUOTED BY THE BIDDERS AND WHICH WAS REFLECTED IN THE GOVERNMENT E TENDERING.

     EXHIBIT P6       TRUE COPY OF THE BILL OF QUANTITY
                      SUMMARY DETAILS WHICH WOULD SHOW
                      THE HIGHEST AND LOWEST BID

     EXHIBIT P7       TRUE COPY OF THE LETTER ISSUED BY
                      THE    1ST    RESPONDENT    DATED
 WP(C)No.24881/2020




                      27.10.2020.

     EXHIBIT P8       TRUE COPY OF THE LETTER ISSUED BY
                      THE    PETITIONER   TO    THE 1ST
                      RESPONDENT DATED 11/11/2020.

     RESPONDENTS' EXHIBITS:


     EXHIBIT R1(A)    TRUE COPY OF THE MINUTES OF THE

MEETING OF THE FINANCIAL EVALUATION COMMITTEE HELD ON 7.10.2020

EXHIBIT R1(B) TRUE COPY OF THE EMAIL DATED 21.10.2020

EXHIBIT R1(C) TRUE COPY OF THE COST BREAK UP SUBMITTED BY THE 2ND RESPONDENT