Kerala High Court
Anish Markose vs The State Of Kerala on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
WP(C) NO. 17381 OF 2021
PETITIONER:
ANISH MARKOSE,
AGED 40 YEARS,
S/O MARKOSE, OMBALAYIL HOUSE,
KOLENCHERRY, ERNAKULAM DISTRICT-682311,
AUTHORIZED SIGNATORY OF ANTECH-PRL(JV)
(A JOINT VENTURE ASSOCIATION ANTECH CONSTRUCTION
COMPANY AND PRL PROJECT AND INFRASTRUCTURE LTD.),
OMBALAYIL, KOLENCHERRY, ERNAKULAM.
BY ADVS.
SRI.SAJEEV KUMAR K.GOPAL
SRI.ASWATHY BABU
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO THE
GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE SECRETARY TO THE GOVERNMENT,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 THE KERALA STATE TRANSPORT PROJECT,
TC 11/339, SREEBALA BUILDING,
KESTON ROAD, NANDANCODE, KOWDIAR.P.O,
THIRUVANANTHAPURAM-695003,
REPRESENTED BY THE PROJECT DIRECTOR.
4 THE CHIEF ENGINEER,
KERALA STATE TRANSPORT PROJECT,
TC 11/ 339, SREEBALA BUILDING KESTON ROAD,
NANDANCODE, KOWDIAR.P.O,
THIRUVANANTHAPURAM-695003.
WP(C) No.17381/2021
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5 THE PROJECT DIRECTOR
KERALA STATE TRANSPORT PROJECT, TC 11/339,
SREEBALA BUILDING, KESTON ROAD,
NANDANCODE, KOWDIAR.P.O, THIRUVANANTHAPURAM-
695003.
6 M/S MARY MATHA INFRASTRUCTURE PVT.LTD,
MARY MATHA SQUARE, ARAKUZHA ROAD,
MUVATTUPUZHA.P.O, ERNAKULAM DISTRICT-686661.
BY ADVS.
P.SHANES METHAR FOR R6
SRI.K.V.MANOJKUMAR, SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.17381/2021
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JUDGMENT
~~~~~~~~~
Dated this the 9th day of November, 2021
The petitioner, who is authorised signatory of
ANTECH-PRL(JV), Ernakulam, has approached this Court
seeking to direct respondents 2 to 5 to forthwith publish the
pre-qualification evaluation of the bidders with respect to the
work, namely Rehabilitation and Upgradation of Vadayar -
Chanthapalam - Mulakkulam Road and Vadayar
Kallattippalam - Muttuchira Road in Kottayam District vide Bid
No.KSTP/KFW/RKI/PKG-IV/Work/Rd-2 forthwith. The
petitioner has also sought to direct the respondents not to
award the said work to the 6 th respondent who is not
pre-qualified for the work.
2. The 3rd respondent-Kerala State Transport Project
invited bid for the work of Rehabilitation and Upgradation of
Vadayar - Chanthapalam - Mulakkulam Road and Vadayar
Kallattippalam - Muttuchira Road in Kottayam District vide Bid
WP(C) No.17381/2021
No.KSTP/KFW/RKI/PKG-IV/Work/Rd-2, for a length of 22.476
Km. The petitioner satisfied Clause 4.2(b) of Ext.P2 which are
the qualification and evaluation criteria. The 6 th respondent
does not have the required experience under Clause 4.2(b),
contended the petitioner. The 6 th respondent has not
produced any documents along with their tender, in proof of
their experience.
3. When the financial bid was opened, the 6 th
respondent was found to be in L1 position and the petitioner
was L2. The petitioner submits that the 6 th respondent does
not have requisite experience and respondents 3 to 5 have
not provided the pre-qualification documents in the
e-procurement portal.
4. The petitioner submitted Ext.P4 representation to
upload the pre-qualification evaluation of bidders. The
petitioner again represented to the 2 nd respondent as per
Ext.P5 pointing out that pre-qualification documents were not
made available, that the 6th respondent does not have the
pre-qualification and requesting not to award work to the 6 th
WP(C) No.17381/2021
respondent. Apprehending that the work will be awarded to
the 6th respondent in spite of want of qualification and
experience, the petitioner has filed this writ petition.
5. The 4th respondent filed a statement in the writ
petition. The 4th respondent stated that the 6 th respondent is a
single entity and the qualification on requirement of a single
entity is specified in Clause 4.2(b). For establishing
experience, the bidder can demonstrate their arrangement to
deploy specialised agency with sufficient machinery or they
can submit an undertaking to procure own machinery for the
purpose of carrying out the work. As per the technical
evaluation, the 6th respondent was found qualified and well
experienced.
6. The 4th respondent stated that the evaluation of
bidders was done by M/s.Louis Berger which is the German
Bank approved project management consultancy. The
technical evaluation report was forwarded to the German
Bank, which was approved by the Bank as per
Annexure-R4(h).
WP(C) No.17381/2021
7. The 6th respondent filed a counter affidavit. The 6 th
respondent stated that they are qualified and successful
bidders and are entitled to award of the work. The 6 th
respondent satisfies all eligibility criteria prescribed for the
work.
8. After perusing the pleadings and hearing the
arguments, it appears that the grievance raised by the
petitioner is relating to Clause 4.2(b) of Ext.P2 bidding
document which provides the requirement as to construction
experience in key activities. The allegation is that the 6 th
respondent does not satisfy the experience required of single
entity bidders. Clause 4.2(b) to the extent it is applicable to
single entity bidders is as follows:-
No. Subject Requirement Single Entity
2 works of INR 48.75 Crores (Forty
Eight Crores Seventy Five Lakhs
only) or 3 works of INR 39 Crores
(Thirty Nine Crores only)
WP(C) No.17381/2021
4.2(b) Construction For the above or any other Must meet
Experience contracts completed and under requirements. For
in key implementation as prime contractor, items 6 and 7,
activities joint venture member, management alternatively, the
contractor or subcontractor on or bidder shall
after the first day of the year during demonstrate their
the period stipulated in 4.2(a) arrangement to
above, a minimum construction deploy specialised
experience in the following key agency with
activities successfully completed: sufficient
1. Bituminous Concrete: 800 cum machinery or to
per year submit an
2. Dense Bituminous Macadam: undertaking to
950 cum per year procure own
3. Wet Mix Macadam: 400 cum per machinery for the
year purpose for
4. Granular Sub-base 12400 per carrying out PQC
year and DLC and
5. Minor Bridge: At least 1 No. 10 m engage
span per year experienced
6. PQC M 40 grade 14750 cum per technicians in the
year relevant field.
7. DLC: 7700 cum per year
8. RCC: 11300 cum per year
The allegation of the petitioner is that the 6 th respondent does
not satisfy the requisite experience enumerated at Item Nos.4,
6 and 7.
9. The learned counsel for the petitioner argued that
the 6th respondent does not have the requisite 12400 cubic
metres per year experience of Granular Sub-base, 14750
cubic metres per year experience in PQC M 40 grade and
7700 cubic metres per year experience in DLC. Clause 4.2(b)
WP(C) No.17381/2021
contains "must meet requirements" and therefore there cannot
be any relaxation. The project is of ₹111 Crores and it cannot
be given to any entity which does not have requisite
experience. The learned counsel for the petitioner further
argued that there is a vigilance report connected with identical
work bid by the 6th respondent and the vigilance report clearly
indicates that there are no documents to show that the 6 th
respondent satisfies the requisite experience. The vigilance
report also has found fault with other authorities who have
approved the bid submitted by the 6 th respondent. The
learned counsel for the petitioner further pointed out that in
spite of the findings in the vigilance report and substantial
allegation made in the writ petition, neither the 4 th respondent
nor the 6th respondent has produced even a scrap of paper
before this Court to prove their credentials.
10. The learned Senior Government Pleader resisted
the writ petition and stated that the selection was done as per
an evaluation report which found the 6 th respondent as
competent to undertake the work. The work in question is an
WP(C) No.17381/2021
external aided project funded by German Bank. The 6 th
respondent has undergone through a multi layer scrutiny and
was found to be qualified. As far as publication of documents
relating to experience, a party participating in a bid has no
right to demand that all the documents should be uploaded in
public domain.
11. The learned Senior Counsel assisted by the
counsel for the 6th respondent submitted that the 6 th
respondent has passed stringent scrutiny in the matter of
qualification and experience. The scrutiny was made by
agencies who have technical knowledge in the field
concerned. The courts should show a lot of restraint in the
matter of interference in contractual matters and that too when
technical issues are involved. The authority who issues the
tender is the best judge to determine the qualification and
experience of bidders. The courts should not interfere in such
matters unless it is established that the decision taken by the
authorities are manifestly arbitrary. The learned Senior
Counsel further pointed out that the petitioner has no prayer in
WP(C) No.17381/2021
the writ petition to award the work to him. The intention of the
petitioner is only to thwart the ongoing tendering process and
force the authorities to make a re-tender of the same work.
The work has to be completed in a time bound manner, within
18 months. Three months have already lapsed. In the
circumstances of the case, the writ petition should be
dismissed.
12. I have heard the learned counsel for the petitioner,
the learned Government Pleader representing respondents 1
to 5 and the learned Senior Counsel assisted by the counsel
for the 6th respondent.
13. The allegation of the petitioner is that the 6 th
respondent does not satisfy the experience conditions relating
to the following areas:-
(i) Item No.4 Granular Sub-base 12400
cubic metre per year
(ii) Item No.6 PQC M 40 Grade: 14750
cubic metre per year
(iii) Item No.7 DLC : 7700 cubic metre per
year
WP(C) No.17381/2021
Clause 4.2(b) of Ext.P2 would show that for Item Nos.6 and 7,
alternatively, the bidder can demonstrate their arrangement to
deploy specialised agency with sufficient machinery or can
submit an undertaking to procure own machinery for the
purpose for carrying out PQC and DLC and engage
experienced technicians in the relevant field. Such an
alternate requirement/option has been given to single entities.
The 6th respondent is a single entity. Ext.P2 bidding document
itself gives a relaxed option to single entities. If they do not
have the requisite experience in PQC and DLC, they can get
the work done deploying specialised agency with sufficient
machinery. Such single entities, alternatively, can submit an
undertaking to procure own machinery for the purpose of
carrying out PQC and DLC and engage experienced
technicians in the relevant field.
14. When Ext.P2 bidding document for procurement of
the works itself gives such options to the single entity bidders,
the petitioner cannot be heard to contend that those are "must
meet requirements" and the construction experience should
WP(C) No.17381/2021
be satisfied by single entity themselves. The 6 th respondent
has given their undertaking as contemplated under Clause
4.2(b) along with their bid. Therefore, the argument of the
petitioner based on Item No.6 and 7 of Clause 4.2(b) of Ext.P2
is only to be rejected.
15. As regards Item No.4, it requires experience in
Granular Sub-base of a quantity of 12400 cubic metres per
year. The 6th respondent has stated that they have executed
more than 12400 cubic metres in a year, together as a prime
contractor and a sub contractor, of Granular Sub-base during
the relevant period. The 6th respondent would further submit
that Wet Mix Macadam (WMM) work means and includes
laying and compacting clean, crushed, graded, aggregate and
granular material pre-mixed with water, to a dense mass on a
required GSD layer. Therefore, technically, the experience in
Item No.4 is always taken together with Item No.3. The 6 th
respondent has executed 85704.63 cubic metres of Item No.3
work.
WP(C) No.17381/2021
16. The 4th respondent has produced Ext.R4(b) which
is the technical evaluation report. With regard to requirement
of Granular Sub-base, as against the requirement of 12400
cubic metres per year, the 6th respondent has compliance of
15818 cubic metres, in the year 2019-'20. As far as the
petitioner is concerned, the petitioner has compliance of
30022 cubic metres, which is the average quantity of five
years. Therefore, going by the technical evaluation report, the
6th respondent satisfies the requirement under Item No.4 of
Clause 4.2(b).
17. In this regard, it has to be kept in mind that the
project is an external aided project. The bids and the
technical qualifications of the bidders have undergone a three
stage scrutiny. One by M/s.Louis Berger who are the
technical experts appointed by the German Bank. The 3 rd
respondent-Kerala State Transport Project has also
scrutinised and verified the qualifications. Thereafter, the
German Bank has also considered the qualifications and has
arrived at Ext.R4(b) report, after a thorough scrutiny and
WP(C) No.17381/2021
evaluation. When the authority which tendered the work and
the technical experts well-versed in the field have found that
the 6th respondent satisfies the requisite experience, it would
be inappropriate for this Court to come to a conclusion to the
contrary, unless of course, there are compelling
circumstances.
18. The Hon'ble Apex Court has held in the judgment in
Silppi Constructions Contractors v. Union of India and
another [(2020) 16 SCC 489] that the Courts should exercise
a lot of restraints while exercising their powers of judicial
review in contractual or commercial matters. The courts must
realise their limitations and the havoc which needless
interference in commercial matters can cause. In contracts
involving technical issues, the courts should be even more
reluctant because most Judges do not have the necessary
expertise to adjudicate upon technical issues beyond their
domain. The courts should give way to the opinion of experts
unless the decision is totally arbitrary or unreasonable. The
courts should not use a magnifying glass to scan tenders and
WP(C) No.17381/2021
make every small mistakes appear like a big blunder. The
courts must give "fair play in the joints" to Government and
Public Sector Undertakings in matters of contract.
19. The learned counsel for the petitioner pointed out
that vigilance wing of Pubic Works Department has made an
enquiry into the Nemmara Nelliampathy Road tender under
the Re-Build Kerala Project undertaken by the KSTP and
came to a conclusion that there is no document submitted by
the 6th respondent in proof of any work done legally, executing
any agreements with the Government and that the PMC
Consultants and KSTP Officials who drafted the technical
evaluation report could not explain the same. Therefore,
when there is a vigilance report against respondents 3 to 6
doubting the technical qualification of the 6 th respondent, the
present work involving ₹111 Crores cannot be awarded to the
6th respondent.
20. It has to be noted that the report is drafted by a
vigilance enquiry team in respect of another work. As regards
the present work, as stated above, the tendering authority and
WP(C) No.17381/2021
the technical experts have scrutinised the records and found
that the 6th respondent satisfies the eligibility conditions. As
held by the Hon'ble Apex Court, the authority which floats the
contracts or tender and has authored the tender documents is
the best Judge as to how the document have to be
interpreted. The courts will only interfere to prevent
arbitrariness, irrationality, bias, malafides or perversity.
Therefore, it will be improper to interfere with the tendering
process on the basis of a preliminary report made by the
vigilance officers of the Public Works Department in respect of
another work.
For all the afore reasons, the writ petition is devoid
of any merit and is liable to be dismissed. The writ petition is
accordingly dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/06.11.2021
WP(C) No.17381/2021
APPENDIX OF WP(C) 17381/2021
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY FOR
LEAD MEMBER OF THE JOINT VENTURE
Exhibit P2 TRUE COPY OF SECION III, QUALIFICATION
AND EVALUATION CRITERIA OF BIDDING
DOCUMENT FOR PROCUREMENT OF WORK.
Exhibit P3 TRUE COPY OF THE TENDER SUMMARY REPORT
DATED 14.08.2021 FROM THE E-TENDERING
SYSTEM, GOVERNMENT OF KERALA.
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED
28.07.2021 SUBMITTED BY ANTECH-PRL(JV)
THROUGH ITS AUTHORIZED SIGNATORY.
Exhibit P5 TRUE COPY OF THE REPRESENTATION
SUBMITTED M/S ANTECH PRL(JV) THROUGH
ITS AUTHORIZED SIGNATORY DATED
24.08.2021 BEFORE THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS:
Exhibit R6(a) TRUE COPY OF THE RELEVANT PAGES OF THE
SECTION II. QUALIFICATION AND BID DATA
SHEET.
Exhibit R6(b) TRUE COPY OF THE RELEVANT PAGE
(CORRIGENDUM - 5) OF THE WORK
REHABILITATION AND UP GRADATION OF
MOOKKANNUR - EZHATTUMUGHAM ROAD AND
BLACHIPPARA - PALLISSERY ROAD (LENGTH
19.950 KM) IN ERNAKULAM DISTRICT
(KSTP/KFW/RKI PKG-III/WORK/RD-I).
Exhibit R6(c) TRUE COPY OF THE RELEVANT PAGE (SECTION
III - EVALUATION AND QUALIFICATION
CRITERIA, CLAUSE 4.2(b) FOR WORK
REHABILITATION AND UP GADATION OF
VADAYAR CHANDAPPALAM MULAKKULAM ROAD
AND VADAYAR KALLATTIPPALAM MUTTUCHIRA
ROAD (LEMGTH OF 22.476 KM) IN KOTTAYAM
DISTRICT.
ANNEXURE-R4(a) THE RELEVANT PAGE SHOWING CLASUE 4.2(b)
WP(C) No.17381/2021
ANNEXURE-R4(b) COPY OF THE EVALUATION DONE BY THE
GERMMAN BANK APPROVED PROJECT
MANAGEMENT CONSULTANCY M/S.LOUIS
BERGER.
ANNEXURE-R4(c) TRUE COPY OF THE APPROVAL OF THE GERMAN
BANK DATED 03.05.2021
ANNEXURE-R4(d) TRUE COPY OF THE EVALUATION.
ANNEXURE-R4(e) TRUE COPY OF THE APPROVAL OF THE GERMAN
BANK DATED 27.05.2021
ANNEXURE-R4(f) TRUE COPY OF CLAUSE 2.5.2.
ANNEXURE-R4(g) TRUE COPY OF THE LETTER ISSUED TO NIC
KERALA STATE CENTRE (e-TENDER PORTAL)
ANNEXURE-R4(h) TRUE COPY OF THE FINAL APPROVAL GIVEN
BY THE GERMAN BANK DATED 28.06.2021.
SR
