Converge Sports Infra (Opc) Pvt ... vs Union Of India
2021 Latest Caselaw 22106 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                   WP(C) NO. 7262 OF 2020
PETITIONER:

          CONVERGE SPORTS INFRA (OPC) PVT LIMITED
          1ST FLOOR, 28/3825 B, S.A ROAD, KADAVANTHARA,
          ERNAKULAM REPRESENTED BY THE MANAGING DIRECTOR MR.
          MATHEW KURIAN. I.F, TRINITY CASTLE, EDAPALLY P.O,
          KOCHI 682 024, KERALA.

          BY ADV RAJIT

RESPONDENTS:

    1     UNION OF INDIA
          REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE,
          NEW DELHI 110 030

    2     FLAG OFFICER COMMANDING-IN-CHIEF,
          SOUTHERN NAVAL COMMAND, WILLINGTON ISLAND, KOCHI
          682 004.

    3     INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE
          (NAVY),
          SOUTHERN NAVAL COMMAND, NAVAL AIRCRAFT YARD, KOCHI
          682 004, REPRESENTED BY THE COMMODORE
          SUPERINTENDENT

    4     CHIEF OF STAFF,
          SOUTHERN NAVAL COMMAND, WILLINGTON ISLAND, KOCHI
          682 004

    5     COMMODORE SUPERINTENDENT ,
          NAVAL AIRCRAFT YARD, KOCHI 682 004

    6     COMMAND SPORTS OFFICER,
          SOUTHERN NAVAL COMMAND, KOCHI 682 004

    7     ADVANCE SPORT TECHNOLOGY LLP,
          2277, RAJA PARK, RANI BAGH, DELHI 110 034.
 W.P.(C).No.7262/2020

                             2


    8      GREAT SPORTS TECH LTD, 101,
           PLOT NO. 52, ST NO. 2, CHIKOTI GARDENS,
           BEGUMPET, HYDERABAD 500 016

    9      SHIV NARESH SPORTS PVT LTD,
           E-23 , KARAM PURA (NEAR POST OFFICE), NEW DELHI
           110 015.

    10     SYNCOTTS INTERNATIONAL J 219,
           LANE W-15, WESTERNB AVENUE, SAINIK FARMS, NEW
           DELHI 110 080.

           BY ADVS.
           SHRI.P.VIJAYAKUMAR, ASG OF INDIA
           SRI.SUVIN R.MENON, CGC


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.7262/2020

                                      3


                     P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                      W.P.(C).No.7262 of 2020
               ----------------------------------------------
            Dated this the 05th day of November, 2021


                              JUDGMENT

This writ petition is filed with following prayers:

i. Call for the records leading to Ext.P8 and quash Ext.P7 and Ext.P8 issued by the 5th respondent, by issuance of a writ of certiorari, or any other appropriate writ, order or direction.

ii. Issue a Writ of Mandamus or any other appropriate Writ order or direction commanding the respondents 1 to 6 to cancel the tender called for as per Ext.P2 and Ext.P3 and issue a fresh tender notification for the work sought to be completed as per Ext.P2 and Ext.P3.

iii. Declare that the respondents 1 to 6 cannot proceed with the tender process as notified in Ext.P2 and Ext.P3 after the expiry of the period of bid validity.

iv. Issue a Writ of Mandamus or any other appropriate Writ order or direction commanding the respondents 1 to 6 to consider the bid submitted by the petitioner towards the work notified in Ext.P2 and Ext.P3.

v. To grant such other and further relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the above case. W.P.(C).No.7262/2020

2. According to the petitioner, the petitioner company

is an authorised representative of a German Company called

M/S Polytan, which company is a pioneer in synthetic sports

surfaces since 1969. Ext.P1 is a resolution of Polytan, by

which it has been resolved by the Board of the Company to

authorise the representative of Polytan, which is the petitioner

herein, to bid for the work of providing and laying IAAF

certified 400 meter 8 lane synthetic athletic track surface of

full PUR system at the Command Stadium, Southern Naval

Command, Naval Base, Kochi, Kerala, India. According to the

petitioner, Polytan offers full range of products for outdoor

sports surfaces: from polymeric running tracks, synthetic

pitches, shock absorbing surfaces to highly developed

artificial turf systems, etc. As per Ext.P2 request for proposal,

bids were invited for providing and laying IAAF (International

Association of Athletics Federation) certified 400 meter 8 lane

synthetic athletic track surface of full PUR system from IAAF

approved synthetic athletic track surface manufacturers/

subsidiary companies having valid product approval certificate

from IAAF (and not from their agents or distributors or

dealers) and for the related works at the Command Stadium, W.P.(C).No.7262/2020

Southern Naval Command, Naval Base, Kochi. Subsequently

the 5th respondent issued a corrigendum to Ext.P2 whereby

certain changes were brought into Ext.P2 and the last date

and time for depositing the bid was shifted to 29.08.2019 at

15.30 hours and the time and date for opening the bids was

30.08.2019 at 15.30 hours. Ext.P3 is the corrigendum. As per

Exts.P2 and P3, the bid can be submitted only by IAAF

approved synthetic athletic track surface manufacturers/

subsidiary companies and the validity of the bids would

remain valid till 180 days. It is the case of the petitioner that

respondents 1 to 5 have uploaded the tender details through

the e-procurement system for organisations under MoD.

Ext.P4 is the e-procurement system for organisations under

MoD uploaded by the 3rd respondent.

3. The petitioner along with respondents 7 to 10

submitted their bids in response to Exts.P2 to P4. According

to the petitioner, he was the only qualified bidder since the

petitioner submitted the bid as the authorised representative

of the manufacturer. The petitioner relied on Ext.P1 board

resolution of the manufacturer Polytan. Ext.P5 is the bid

acknowledgment. In Ext.P5, the bidder name is mentioned as W.P.(C).No.7262/2020

Converge Sports Infra (Authorised Representative of Polytan).

The bid list details were uploaded by the 3 rd respondent in

their website and in the said details it can be seen that the bid

was submitted by the petitioner as the authorised

representative of the manufacturer. Ext.P6 is the bid list

details. In Ext.P6 also, Serial No.2 is Converge Sports Infra

(Authorized Representative of Polytan). The 5 th respondent

rejected the technical bid submitted by the petitioner and

accepted the bid submitted by respondents 7 to 10. Ext.P7 is

the details/tender summary report. The 2 nd respondent issued

a communication to the 5th respondent informing him that

approval has been granted towards technical evaluation

committee report and respondents 7 to 10 have been declared

as technically qualified firms and the commercial bids were

directed to be opened. Ext.P8 is the communication.

According to the petitioner, respondents 7 to 10 do not fall

within the category of manufacturers or subsidiary company

of the manufacturers. It is also the case of the petitioner that

respondents 7 to 10 are Indian agents/representative of

manufacturers based outside India. Certain documents are

produced as Exts.P9 to P12 to prove the same. Based on W.P.(C).No.7262/2020

Ext.P9 to P11, it is submitted that respondents 7 to 11 have

bid in their individual capacity and were not qualified in terms

of the conditions prescribed in Exts.P2 to P4. Aggrieved by the

rejection of the technical bid of the petitioner, this writ

petition is filed.

4. Heard the counsel for the petitioner and the

Central Government Counsel (CGC).

5. The counsel for the petitioner reiterated his

contentions in the writ petition. The counsel takes me

through Ext.R1(a) which is the technical evaluation committee

report. In Ext.R1(a), the reason for rejecting the application is

specifically mentioned which is as follows:

"Further, 02 in number class II full PUR IAAF certificates submitted by M/s.Converge Sports Infra for track building projects undertaken in India have been found to be work undertaken by M/s.Polytan, Germany (Original Equipment Manufacturer) which is in contravention with the RFP for the subject case."

6. Moreover, in the tech evaluation matrix, it is stated

that the details of two completed/ongoing track building

projects undertaken in India (Full PUR system with synthetic

track projects in India with their respective "IAAF" W.P.(C).No.7262/2020

certificates) is not available to the petitioner. The counsel

takes me through Ext.P1 once again and submitted that it is a

company board resolution. The counsel submitted that it has

been resolved by the board to authorise their representative in

India, M/s. Converge Sports Infra (OPC) Pvt. Ltd, 28/3825 B,

S.A. Road, Kadavanthra P.O., Kochi, to bid for the work of

providing and laying IAAF certified 400 meter 8 lane synthetic

athletic track surface of full PUR system at the Command

Stadium. The counsel submitted that Ext.P1 is a company

board resolution. The counsel also takes me through Ext.P13

produced along with the reply affidavit filed by the petitioner

in which it is stated that the work will be done by Polytan itself

including laying of track and installation. On the other hand,

the CGC submitted that the authorities considered the bid

submitted by the petitioner and rejected the same because

Polytan is not a bidder. The CGC submitted that suppose

Polytan is not a bidder, there will be difficulty to the

respondents to proceed further, if there in any action to be

taken against the successful bidder. According to the CGC,

the petitioner has not produced any certificate showing that

they have got any IAAF certificate. On the other hand, the W.P.(C).No.7262/2020

counsel for the petitioner submitted that the petitioner has no

case that they have any IAAF certificate and their case is that

the petitioner is only acting on behalf of Polytan and Polytan

itself is the person who will do the entire work.

7. I considered the contention of the petitioner and

the respondents. I heard the counsel for the petitioner and

the CGC on 29.10.2021 and reserved the case for judgment.

After going through the records, I posted this case as 'to be

spoken' and directed the CGC to produce the entire file

relating to this matter. The file is produced as directed by this

Court. I perused the file and allowed the parties to argue the

matter again. On a perusal of the file, it can be seen that

Polytan Company itself sent a letter to the CDRPK, Chief

Manager (Material) in which it is stated that the name,

address and contact of the authorised signatory and Power of

Attorney as the petitioner. In the file another letter from

Polytan is also seen in which also it is stated that the company

authorised Mr.Mathew Kurian, Managing Director, M/s.

Converge Sports Infra (OPC) Pvt. Ltd, 28/3825 B, S.A. Road,

Kadavanthra P.O., Kochi, Kerala to submit the tender listed

above and to act on behalf of Polytan. Moreover, I perused W.P.(C).No.7262/2020

Ext.P1 which is also seen in the file. It will be better to extract

Ext.P1 Company Board Resolution:

"It has been resolved by the board to authorize our representative in India M/S.Converge Sports Infra (OPC) Pvt Ltd, 28/3825 B, S.A. Road, Kadavanthara P.O, Kochi-682 020, Kerala India to bid for the work of providing and laying IAAF certified 400 meter 8 lane synthetic athletic track surface of full PUR system at the Command Stadium, Southern Naval Command, Naval Base, Kochi, Kerala, India. M/S Converge Sports Infra (OPC) Pvt Ltd is authorized to act on our behalf in bidding and executing the project."

8. Thereafter I perused the technical evaluation

committee report, which is marked as Ext.R1(a). The only

reason to reject the bid of the petitioner as per Ext.R1(a) is

like this:

"Further, 02 in number class II full PUR IAAF certificates submitted by M/s.Converge Sports Infra for track building projects undertaken in India have been found to be work undertaken by M/s.Polytan, Germany (Original Equipment Manufacturer) which is in contravention with the RFP for the subject case."

9. So, the only reasons to reject the bid of the

petitioner is that the IAAF certificate submitted by W.P.(C).No.7262/2020

M/s.Converge Sports Infra for track building projects

undertaken in India have been found to be work undertaken

by M/s.Polytan, Germany. But, here is a case where the

petitioner has no case that they have undertaken any such

work. Their case, as evident by Ext.P1 document also, is that

they are only the authorised person to sign the documents on

behalf of Polytan. Therefore the case of the petitioner is that

Polytan itself is the bidder and the petitioner is only acting on

behalf of Polytan. The counsel for the petitioner also submitted

before this Court that Polytan Company is ready to supply

further documents, if any, to show that they themselves are

doing the work and if any disputes arises in connection with

the work, the authorities can consult Polytan itself. The

counsel for the petitioner submitted that if an opportunity is

given, the petitioner is ready to produce such documents as

required by the respondents to show that Polytan itself is the

bidder and the terms and conditions in Ext.P2 is binding to the

Polytan Company. If that is the case, I am of the view that

there can be a direction to the respondents to reconsider the

rejection of the technical bid of the petitioner alone and liberty

can be given to the respondents to reconsider the matter after W.P.(C).No.7262/2020

giving an opportunity to the petitioner. If the petitioner

produce adequate documents to show that Polytan itself is

doing the work, the respondents can accept the same and take

appropriate decision in accordance to law. When the petitioner

submit before this Court that they are not the agents or

distributors or dealers, but they are only acting on behalf of

Polytan, I think a reconsideration on the side of the

respondents is necessary. I make it clear that I leave open all

the contentions of the petitioner and the respondents.

Therefore, this writ petition is disposed in the following

manner:

1. The rejection of the technical bid as per

Ext.R1(a) and Ext.P7 of the petitioner alone is

set aside.

2. The technical evaluation committee of the

official respondents will reconsider the bid

submitted by the petitioner in accordance to

law, within three weeks from the date of

receipt of a copy of this judgment.

3. The technical evaluation committee can direct

the petitioner to produce adequate documents W.P.(C).No.7262/2020

to show that the work is going to be done by

Polytan Company itself and they are

answerable for the same and further they are

bound by the conditions in Ext.P2.

4. All other contentions of the petitioner and the

respondents in this writ petition are left open.

Sd/-

                                           P.V.KUNHIKRISHNAN
JV                                                JUDGE
 W.P.(C).No.7262/2020





                 APPENDIX OF WP(C) 7262/2020

PETITIONER EXHIBITS
EXHIBIT P1        TRUE COPY OF THE COMPANY BOARD
                  RESOLUTION.
EXHIBIT P2        TRUE COPY OF THE REQUEST FOR PROPOSAL

(RFP) NO LP/0219/800(F)/2015-16 DATED 01-07-2019.

EXHIBIT P3        TRUE COPY OF CORRIGENDUM
EXHIBIT P4        TRUE COPY OF THE PROCUREMENT SYSTEM
                  FOR ORGANIZATIONS UNDER MOD UPLOADED
                  BY THE 3RD RESPONDENT
EXHIBIT P5        TRUE COPY OF THE BID ACKNOWLEDGEMENT
                  ISSUED BY THE 3RD RESPONDENT
EXHIBIT P6        TRUE COPY OF THE BID DETAILS PUBLISHED
                  BY THE 3RD RESPONDENT
EXHIBIT P7        TRUE COPY OF THE DETAILS/TENDER
                  SUMMARY REPORT UPLOADED BY THE 3RD
                  RESPONDENT
EXHIBIT P8        TRUE COPY COMMUNICATION BEARING NO
                  SP/2140.31(iii) DATED 03-03-2020
EXHIBIT P9        TRUE COPY OF THE LETTER OF SUBMITTAL
                  (ANX 1) OF THE 7TH RESPONDENT.
EXHIBIT P10       TRUE COPY OF THE LETTER OF SUBMITTAL
                  (ANX 1) OF THE 8TH RESPONDENT
EXHIBIT P11       TRUE COPY OF THE LETTER OF SUBMITTAL
                  (ANX 1) OF THE 9TH RESPONDENT
EXHIBIT P12       TRUE COPY OF THE LETTER OF SUBMITTAL
                  (ANX 1) OF THE 10TH RESPONDENT.
EXHIBIT P13       TRUE COPY OF HTE LETTER WRITTEN BY THE

PETITIONER DATED 15.10.2019 ALONG WITH ENCLOSURES RESPONDENTS' EXHIBITS

EXHIBIT R1(A) COPY OF THE TECHNICAL EVALUATION COMMITTEE REPORT DATED 26.02.2020 EXHIBIT R1(B) COPY OF THE CERTIFICATE DATED 09.11.2015 ISSUED BY TEH INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 7TH RESPONDENT EXHIBIT R1(C) COPY OF THE CERTIFICATE DATED 17.02.2016 ISSUED BY THE INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS W.P.(C).No.7262/2020

SUBMITTED BY THE 7TH RESPONDENT EXHIBIT R1(D) COPY OF THE CERTIFICATE DATED 07.07.2017 ISSUED BY INTERNATIONAL ASSOCIATIONOF ATHLETICS FEDERATIONS SUBMITTED BY THE 8TH RESPONDENT EXHIBIT R1(E) COPY OF THE CERTIFICATE DATED 30.12.2018 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS DEDERATIONS SUBMITTED BY THE 8TH RESPONDENT EXHIBIT R1(F) COPY OF THE COMPLETION CUM PERFORMANCE CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER, PWD, BIDHANAGAR WEST DIVISION, KOLKATA SUBMITTED BY THE 8TH RESPONDENT EXHIBIT R1(G) COPY OF THE CERTIFICATE DATED 01.07.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 9TH RESPONDENT EXHIBIT R1(H) COPY OF THE CERTIFICATE DATED 13.08.2019 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 9TH RESPONDENT EXHIBIT R1(I) COPY OF THE CERTIFICATE DATED 19.09.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 10TH RESPONDENT EXHIBIT R1(J) COPY OF THE CERTIFICATE DATED 13.07.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE 10TH RESPONDENT EXHIBIT R1(K) COPY OF THE CERTIFICATE DATED 30.03.2017 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE PETITIONER EXHIBIT R1(L) COPY OF THE CERTIFICATE DATED 28.05.2013 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE PETITIONER EXHIBIT R1(M) COPY OF THE CERTIFICATE DATED 09.02.2015 ISSUED BY INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS SUBMITTED BY THE PETITIONER