Anish Markose vs State Of Kerala

N. Nagaresh, J

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 6th respondent who is not pre-qualified for the work.

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 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 6th respondent does not have the required experience under Clause 4.2(b), contended the petitioner. The 6th respondent has not produced any documents along with their tender, in proof of their experience.

When  the  financial  bid  was  opened,  the  6th respondent was found to be in L1 position and the petitioner was L2. The petitioner submits that the 6th respondent does not have requisite experience and respondents 3 to 5 have not provided the pre-qualification documents in the e-procurement portal.

The petitioner submitted Ext.P4 representation to upload the pre-qualification evaluation of bidders. The petitioner again represented to the 2nd 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 6th 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.

The 4th respondent filed a statement in the writ petition. The 4th respondent stated that the 6th 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.

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).

The 6th respondent filed a counter affidavit.  The 6th respondent stated that they are qualified and successful bidders and are entitled to award of the work. The 6th respondent satisfies all eligibility criteria prescribed for the work.

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 6th 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)

4.2(b)

Construction Experience in             key

activities

For    the    above    or    any    other contracts    completed    and    under implementation as prime contractor, joint venture member, management contractor  or  subcontractor  on  or after the first day of the year during the    period    stipulated    in    4.2(a) above,    a    minimum    construction experience   in   the   following   key activities successfully completed:

Bituminous  Concrete:  800  cum per year

Dense   Bituminous   Macadam: 950 cum per year

Wet Mix Macadam: 400 cum per year

Granular   Sub-base   12400   per year

Minor Bridge: At least 1 No. 10 m span per year

PQC M 40 grade 14750 cum per year

DLC: 7700 cum per year

RCC: 11300 cum per year

Must              meet requirements.  For items   6   and   7, alternatively,    the bidder            shall demonstrate   their arrangement      to deploy specialised agency            with sufficient machinery   or   to submit               an

undertaking        to procure           own machinery  for  the purpose            for carrying  out  PQC and     DLC     and engage experienced technicians  in  the relevant field.

The allegation of the petitioner is that the 6th respondent does not satisfy the requisite experience enumerated at Item Nos.4, 6 and 7.

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) 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 6th respondent satisfies the requisite experience. The vigilance report also has found fault with other authorities who have approved the bid submitted by the 6th 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 4th respondent nor the 6th respondent has produced even a scrap of paper before this Court to prove their credentials.

The learned Senior Government Pleader resisted the writ petition and stated that the selection was done as per an evaluation report which found the 6th respondent as competent to undertake the work. The work in question is an external aided project funded by German Bank. The 6th 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.

The learned Senior Counsel assisted by the counsel for the 6th respondent submitted that the 6th 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 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.

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.

The  allegation  of  the  petitioner  is  that  the  6th 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

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.

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 be satisfied by single entity themselves. The 6th 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.

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 6th respondent has executed 85704.63 cubic metres of Item No.3 work.

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).

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 3rd 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 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.

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 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.

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 6th respondent, the present work involving ₹111 Crores cannot be awarded to the 6th respondent.

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 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.