M/S. AISHWARYA INFRASTRUCTURES AND DEVELOPERS Vs STATE OF KARNATAKA

The petitioner in W.P.NO.7881/2017 is assailing

the order dated 16.02.2017 whereby the Government

through the said order has cancelled the earlier tender

process and ordered retendering of the work relating to

Malleswaram Ward Nos.35 and 45 Mathikere

subdivision. The petitioner in W.P.No.9569/2017 is

also assailing the very same order. The petitioner in

W.P.No.6402/2016 is assailing the order dated

21.11.2016 ordering retender for Gandhinagar Division.

Insofar as the Tender Accepting Authority (''TAA'' for

short) rejecting the tender of the petitioner and

considering the bid of the L2 tenderer is also assailed.

In W.P.No.62068/2016 the petitioner is seeking

consideration of the bid of the petitioner relating to

Chamarajpet sub-division and issue work order in that

regard. In W.P.Nos.12735/2017, 12736/2017 and

W.P.No.6293/2017, the petitioner is seeking review and

recall of the earlier order dated 04.08.2016 passed by

this Court in W.P.No.30127/2016, W.P. No.30635/2016

and W.P.No.28986/2016.

Since all these petitions relate to the earlier

tender notification which has the genesis for the present

dispute, the petitions are considered together.

The petitioners in W.P.Nos.7881/2017,

60402/2016 and 62068/2016 viz., M/s Aishwarya

Infrastructure and Developers (''M/s. AID'' for short) and

the petitioners in W.P.Nos.9569/2017, 12735/2017,

12736/2017, 6293/2017- Sri M.S.Venkatesh were among

the contractors who had responded to the tender

notification issued by the Bruhat Bengaluru

Mahanagara Palike (''BBMP'' for short) which had been

floated through the tender notification dated 25.02.2016

for carrying out the comprehensive development of the

roads including drain, footpath and asphalting in the

different wards of Malleswaram, Gandhinagar and

Chamarajapet divisions. The bids of both the said

contractors were found technically qualified and the

financial bid was opened. The financial bid of M/s.AID

was found to be the lowest and as such was classified

as L1. The financial bid of Sri M.S.Venkatesh was

found to be L2.

The said L2 bidder raised certain queries at

that stage due to which the revaluation of the technical

bids of M/s. AID was made. In the process M/s. AID

was held not technically qualified and the bid was

rejected through the endorsement dated 07.05.2016.

Being aggrieved by such action, they were before this

Court in W.P.No.28986/2016. In respect of a similar

action taken relating to the other divisions, the petitions

in W.P.Nos.30127/2016 and 30635/2016 were filed.

This Court on taking note of the contentions, including

the objection that had been raised by the BBMP and the

manner of consideration made, was of the opinion that

the procedure followed by the Tender Scrutiny

Committee (''TSC'' for short) to reevaluate in the manner

as done was not justified. The procedure as

contemplated in law viz., the consideration to be made

by the TAA based on the evaluation made by the TSC

was emphasized and in that view the impugned

endorsement was set aside and the BBMP was directed

to proceed from the stage where the financial bid had

been opened. A similar consideration had been made in

W.P.No.30605/2016, the connected petition. The said

L2 Tenderer Sri M.S.Venkatesh was not a party to the

said proceedings and it is in that view presently the writ

petitions in W.P.No.6293/2017, W.P.No.12735/2017

and W.P.No.12736/2017 are filed seeking recall/review

of the said earlier orders passed by this Court. Insofar

as the official respondents are concerned, in view of the

said orders passed in the earlier writ petitions, they

have proceeded further in the matter and the present

impugned action has been taken.

At the outset, since in W.P.No.6293/2017,

W.P.No.12735/2017 and W.P.No.12736/2017 the

petitioner has sought for recall of the order dated

04.08.2016 passed in W.P.No.28986/2016,

W.P.No.30127/2016 and W.P.No.30635/2016, whether

the prayer is to be accepted in that regard is to be

decided as it will have a bearing on the consideration on

other aspects. The petitioner Sri M.S. Venkatesh was

also the tenderer in the earlier process and was placed

at L2 as already noticed above. Though the TSC at the

first instance had found the bid of M/s.AID as

technically qualified, the re-evaluation was made in view

of the objection raised by Sri M.S. Venkatesh which in

fact had been noticed by this Court at the earlier

instance. Firstly, the objection of another tenderer at

that stage would not arise. Secondly even after this

Court had through the order dated 04.08.2016 directed

the further consideration to be made as indicated in the

order, at that stage, Sri M.S. Venkatesh did not make

out any grievance but waited till the entire process was

completed and a decision was taken. The decision to

challenge is taken only when it was ordered to retender

the work and after M/s.AID challenged that process.

That apart, it is to be noticed that in the earlier

petitions in W.P.No.28986/2016 and connected

petitions the Tender Inviting Authority (''TIA'' for short)

was a party to the petition, which had urged the very

same contentions which is now sought to be urged by

Sri. M.S.Venkatesh relating to M/s. AID not satisfying

the condition of pre-requisite qualification contained in

Clause 3.2(b) of the tender documents and that the re-

examination had been made by the TSC at the instance

of Sri M.S.Venkatesh. This Court having adverted to

that aspect of the matter was not very much concerned

about the decision itself, but keeping in view the scope

of judicial review in a writ petition relating to certiorari

proceedings had found fault with the procedure adopted

by the TSC to arrive at its decision and it is in that view

the clock was set back to the stage at which the error in

procedure was committed and directed to proceed

further in the matter. The tender process not being

completed and the work not having been awarded to

Sri M.S.Venkatesh at that stage, no right had accrued

in his favour to entitle a right of hearing in the earlier

petitions before this Court and as such he was not

required to be heard. In that circumstance, reviewing or

recalling the earlier orders dated 04.08.2016 passed in

W.P.No.28986/2016, W.P.No.30127/2016 and W.P. No.

30635/2016 at his instance does not arise even at this

point in time. Accordingly the petitions in W.P. No.

6293/2017, W.P. No. 12735/2017 and W.P. No.

12736/2017 lack merit and the prayer made therein is

liable to be rejected.

In the above backdrop, the composite issue

that arises in the combination of the prayers contained

in the remaining petitions is as to whether in that

circumstance, M/s. AID should have been given the

benefit of the work order due to the directions contained

in the earlier order dated 04.08.2016 in W.P.

No.28986/2016 and connected petitions or whether the

TAA and the TSC were justified in the procedure

adopted by them after disposal of the earlier petitions?

Further the issue is also as to whether if such

procedure is held justified and if M/s. AID was rightly

held excluded, in that circumstance should the work

order have been given to Sri M.S.Venkatesh who was

the only other tenderer who had qualified in the

technical evaluation and thus was the L2 tenderer in

the analysis of the financial bid? If not, whether the

ultimate decision of the Government to direct

retendering the same work was justified or not ?

To determine the above aspects, the true

purport of the order dated 04.08.2016 passed in W.P.

No. 28986/2016, the reasons of which was adopted for

disposal in W.P.Nos.30127/2016 and 30635/2016 is to

be taken note and be kept in perspective. Incidentally

since the very Bench of this Court had decided the

earlier set of writ petitions, what weighed in the mind of

this Court and to what extent the consideration was

made therein is not far to seek. In that regard while

answering the first aspect to decline the prayer to recall

or review the order, it has been clearly indicated that

what was kept in view was the examination of the

correctness or otherwise of the procedure adopted in the

decision making process and not so much the decision

itself. In that view, the endorsement dated 07.05.2016

issued rejecting the technical bid of M/s.AID on making

a second evaluation by the TSC itself and the

circumstance under which it was done and the

procedure that was followed was found fault with, the

endorsement was accordingly quashed and the TAA was

directed to proceed from that stage onwards.

For better appreciation, it is appropriate to

reproduce the relevant portion of the order in W.P.

No.28986/2016 which is as hereunder;

"8. Therefore, if in that light the evaluation as has been made, keeping in view the nature of the observations made in the note sheets which directs reconsideration is kept in view, the consideration as made purportedly by the Committee appears to be only to satisfy the decision, which had already been taken to disqualify the petitioner as contained in the note sheet and to thereafter consider the sole bidder, who would be in the field. Hence, if the subsequent evaluation as made is considered in the background of the evaluation, which was made by the Committee, at the first instance it is seen that with regard to the work experience to be satisfied as provided under Clause 3.2(b), the Committee in fact had referred to the total cost of the work that had been undertaken by the petitioner as well as the other tenderer Sri.M.S.Venkatesh and thereafter has held that both of them would meet the eligibility criteria only after such evaluation the financial bid was

opened. If that be the position, the nature of the subsequent consideration made would indicate that the same is done only with an object of disqualifying the petitioner, in view of the note that had already been put up. That apart, the re- evaluation also does not indicate that any other additional consideration had been made by the Committee except stating that he does not meet the eligibility criteria for which no basis is indicated.

9.Hence, in the said circumstances when the Committee had found the petitioner to be eligible at the first instance and in that light, the financial bid had been open and the petitioner was found to be L1, the respondents re-visiting the aspect regarding the technical evaluation once again without strong basis will not be acceptable. Such action would indicate that the same has not been done with a bonafide intention of evaluating the bids in an appropriate manner, but is only to disqualify the petitioner by raising such issues belatedly with a malafide intention.

In addition what is also to be kept in view is that, as rightly pointed out by the learned Senior Counsel for the petitioner, a Technical Evaluation

Committee had evaluated the tender documents and found the petitioner to be eligible. It is only the Tender Accepting Authority, which could have either accepted or rejected such evaluation for reasons to be recorded and not an Executing Engineer as has been done and that too by raising a note for approval seeking for a re-evaluation. Therefore, if all these aspects are kept in view, the endorsement dated 07.05.2016 at Annexure ''J'' cannot be sustained. If that be the position, the second evaluation as made, based on which such endorsement has been issued also would not be sustainable."

(Emphasis is supplied herein)

The consideration as made in

W.P.No.28986/2016 will leave no room for doubt that

this Court did not approve the procedure adopted

where, after the evaluation was made by the TSC a note

was put up as at Annexure-L to that petition relating to

the non satisfaction of the condition contained in clause

3.2(b) of the tender documents. Based only on the same

the TSC which had become functus officio in so far as

the technical and financial evaluation stage in the

process had at that stage re-assumed the role once over

again, that too after the financial bid had been opened.

It is in that view this Court had held, from that stage

onwards it was the prerogative of the TAA and not for

the TSC to reverse the process based on a note of the

Executive Engineer. The fact that this Court had clearly

indicated that the TAA could have either accepted or

rejected for reasons to be recorded will make it clear

that this Court had not determined the absolute right in

favour of M/s.AID to be issued with the work order as

they were L1 tenderer but allowed the process to be

taken forward from the stage wherein the financial bid

had been evaluated to thereafter be done in accordance

with law by the TAA.

If that be the position, what was desired by

this Court was that the report of the technical and the

financial evaluation which was already made by the TSC

was to be collated and be taken to the next stage by

submitting it to the TAA who was required to process

the same from that stage. The direction issued by this

Court had not circumscribed the consideration to be

made by the TAA in any particular manner. Therefore,

as per the protocol for tender evaluation, TAA can

reassess the documents in the backdrop of the

evaluation report of the TSC, the material available on

record and take a decision regarding evaluation which

can also be different from the one taken by the TSC or it

may also be open to the TAA to send it back to the TSC

for re-evaluation, if it is not satisfied with the evaluation

made. However, such decision taken will be for the

reasons to be recorded which will be open for judicial

scrutiny in the appellate or such other forum where the

remedy is provided in law.

In that light, the consideration in that regard

being the similar in respect of the work in the different

divisions which are the subject matter herein, the

consideration as made relating to the Gandhinagar sub

division and raised in W.P.No.60402/2016 is taken note

for decision making in these petitions. The

consideration made after the direction in the earlier

petition is as seen in Annexure M and M1. Though the

same would record as the proceedings dated 11.11.2016

of the TSC, the body of the proceedings will indicate

that detailed reference is made to the order dated

04.08.2016 passed in W.P.No.28986/2016 in its correct

perspective and in that light has recorded that the

committee which has considered the matter is itself the

TAA and in that view having assessed the material has

taken the independent decision that M/s. AID does not

satisfy the criteria as the documents are found to be

fabricated and has decided that the work be given to the

L2 tenderer Sri M.S.Venkatesh, which decision is to be

implemented after approval of the Government keeping

in view the scheme under which the work is

undertaken.

Therefore, in so far as the procedure that is

followed by the BBMP subsequent to the earlier order

dated 04.08.2016 of this Court, there is no legal flaw

committed. With regard to the subject of the decision

itself, in holding that the documents submitted by

M/s.AID being fabricated and therefore the Work

Qualification Certificate dated 03.03.2016 did not

satisfy the qualification criteria, extensive arguments

are addressed by the learned senior counsel for M/s.AID

and is also contended that the very same certificate is

accepted by the BBMP to award the work to them in

Byatarayanapura Division and the learned counsel for

Sri M.S.Venkatesh, on the other hand refers to the said

certificate with reference to the tender cost indicated

therein and would seek to point out that the work

undertaken as per the other tenders and the bills paid

to M/s.AID, would not match up to the value indicated

therein. The learned counsel though would also refer to

certain aspects to indicate the manner in which it has

been fabricated, I do not propose to analyse the said

contentions to render a finding on that aspect herein.

That is for the reason, firstly such seriously disputed

questions of fact which may require evidence to be

recorded cannot be gone into in the limited scope

available to this Court in a writ petition. Secondly, if on

such conclusion in the impugned order the work order

was actually awarded to the L2 tenderer, M/s.AID

would have had the remedy of assailing it in an appeal

as provided under Section 16 of KTPP Act wherein the

re-appreciation of the material was possible. Further, in

the present circumstance the decision is also to initiate

action in accordance with law, including against the

official of BBMP who is stated to have aided the

fabrication and as such it would not be appropriate for

a writ Court to dwell into those aspects as the defence is

to be putforth in such proceedings.

Hence, for all the above reasons, it cannot be

said that the action taken by BBMP pursuant to the

earlier order is in any way contrary to the direction

issued therein and as such merely because this Court

had directed to proceed from the stage of opening the

financial bid, it does not mean that it was mandated in

the order of this Court that M/s.AID being the L1

tenderer was to be awarded the work. Hence the prayer

made in W.P. Nos. 60402/2016 and 62068/2016 is also

not sustainable.

The issue which therefore remains for

consideration is as to whether the decision taken by the

Government to direct the BBMP to retender the work in question is justified. On that aspect, in so far as the

grievance put forth by M/s.AID in W.P. No. 7881/2017

the same would not require this Court to advert to

further details since in the circumstance where the right

for award of work as claimed by M/s. AID has been

declined, the question of M/s. AID being aggrieved by

the decision to retender will not arise. The learned

counsel for Sri M.S.Venkatesh while assailing the action

taken to retender the very work which the BBMP being

TAA had decided that it be awarded to the

Sri M.S.Venkatesh as he was the L2 tenderer when

M/s. AID though the L1 tenderer had not qualified in

the technical evaluation would refer to the provision

contained in Section 14 of KTPP Act with regard to the

limited scope available therein to cancel the tender or

order retender in terms of Section 15 of KTPP Act. In

that circumstance, it is contended that the action taken

is not justified.

In that regard, it is seen that after the BBMP

had sent the file to the Government seeking for approval

of the further action, the Addl. Secretary to the Urban

Development Department (BBMP) has placed it before

the Principal Secretary, Urban Development Department

through the communication dated 08.11.2016

(Annexure R1). The Principal Secretary on verification of

the file has noted as follows,

"In view of the fact that the tender process is vitiated, it is ordered to retender the works".

The BBMP having acceded to the same has

retendered one of the works, the further process of

which is held up due to these petitions and the

retendering of the other works are kept on hold due to

the pendency of these petitions. One of the Residents

Welfare Association has filed I.A.No.2/2017 in

W.P.No.7881/2017 seeking to implead themselves so as

to highlight the hardship being faced by the general

public due to the delay in completion of the work as the

road condition has deteriorated in the area where the

work was to be undertaken.

The objection statement filed on behalf of the

Government would indicate that the Government on

keeping in view the entire sequence of events which led

to the earlier round of writ petition and the manner in

which the tender process had been undertaken was of

the opinion that the entire process of transparency

under KTPP Act is not followed by the TIA and TAA

during the process of tender and considering that the

tender for asphalting major roads in the centre of the

city was invited on 24.02.2016 and a year had passed

without progress, a conscious decision was taken to

cancel the tender process as the tender had not been

awarded in favour of any bidder and no right had been

created. Reference is made to the power available under

Sections 14 and 15 of the KTPP Act.

In the above background as noticed, the

litigation with regard to the tender process commenced

with the petition in W.P.No.28986/2016 at a stage when

the tender process had not even been completed. On

the evaluation of the technical and financial bid having

been done, one of the tenderers Sri M.S.Venkatesh had

raised objection with regard to the documents relied on

by the other tenderer M/s. AID and the consideration

made thereafter was as if an adversarial litigation was

being adjudicated in the tender process itself. The

nature of the allegations and counter allegations made

in that regard relating to the evaluation process with

reference to the tender documents will indicate that

Rule 23 of the KTPP Rules 2000 was followed more in

breach since the confidentiality was not maintained.

Further the learned counsel for Sri M.S.Venkatesh, the

L2 tenderer while opposing the prayer made by M/s.AID

seeking for issue of the work order in their favour

pursuant to the tender evaluation made on 24.07.2016

has referred to the TSC proceedings as at Annexures-D

and D1 in W.P.No.60402/2016, to point out the

irregularity in the proceedings wherein the

Superintending Engineer has not signed the

proceedings while the Executive Engineer who has

signed was at the verge of retirement. The learned

counsel has also referred to Rule 23 to point out that

the confidentiality has not been maintained as

otherwise M/s. AID could not have produced the

documents along with the earlier writ petition. The said

contentions in my opinion would act as double edged

sword. It is the very same irregular proceedings dated

24.07.2016 under which Sri M.S.Venkatesh was also

held to be technically qualified and as such the benefit

of such proceedings cannot be available to either of the

parties. Hence if all these aspects of the matter are kept

in view, as rightly observed by the Government, the

entire process was contrary to the requirement under

the KTPP Act and the conclusion that the tender

process was vitiated is justified so as to cancel the

process and retender the work. Hence

W.P.No.9569/2017 would also fail.

The impleading applications are disposed of

without specific orders though the contentions urged

therein has formed part of the consideration.

In the result, the W.P.Nos.7881/2017

60402/2016, 62068/2016, 6293/2017, 9569/2017,

12735/2017 and 12736/2017 are dismissed with

no order as to costs.