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Judgment
N.Nagaresh, J
The petitioner who is an A Class Civil Contractor is before this court aggrieved by the arbitrariness and impropriety committed by the 2nd respondent in altering the BOQ of the bid/tender by issuing a corrigendum shortly before the last date for submission of tenders, which has prejudiced the bidders of their rights in the final selection process.
The petitioner states that the 2nd respondent-Chief Engineer (SC&M), KSEB Ltd. issued Ext.P3 tender notification inviting on-line tenders for manufacture and supply of pre-stressed concrete poles (PSC Poles) to different Electrical Circles under the respondents 1 and 2. The Sl.No. 45.0 of the original Bill of Quantity (BOQ) was for manufacture and supply of 8m 200 Kg PSC Poles to Electrical Circles Shornur, Tirur, Vadakara, Palakkad, Nilambur, Manjeri, and Kozhikode. The Sl.No.46.0 was for manufacture and supply of the same material at Kannur, Kasaragod, Srikandapuram and Kalpetta.
The petitioner has a production unit at Palakkad and hence the petitioner submitted tender for Sl.No.45.0 alone. The technical evaluation bid was opened on 06.10.2021 and the petitioner was declared technically qualified. After the opening of price bid, the petitioner was eligible to be declared as L3. On 08.10.2021, the petitioner was served with Ext.P5 communication requiring to state their rock bottom rate for North Malabar Region. The petitioner submitted Ext.P6 reply dated 11.10.2021.
The petitioner was thereafter informed as per Ext.P7 that Ext.P8 corrigendum was issued to the tender notification on 18.08.2021 by which BOQ was changed altering the Electrical Circles and hence the bid of the petitioner can be considered only for North Malabar Region consisting of Kannur, Kasaragod, Srikandapuram and Kalpetta Electrical Circles. The petitioner submits that the corrigendum was issued belatedly and consequential changes were not effected in BOQ Template or tender form. Ext.P8 corrigendum is ex facile illegal, contended the petitioner.
Issuance of corrigendum to alter BOQ of tender is unheard of, and that too without changing the BOQ Template. No purpose is achieved by the corrigendum. Failure of respondents to alter the BOQ Template after the Corrigendum has vitiated the tender process. Therefore, it is only fair and proper to cancel the whole selection process. The petitioner therefore seeks to declare that Ext.P8 corrigendum as illegal and arbitrary and to direct the 2nd respondent to consider the bid submitted by the petitioner as one under Sl.No.45.0 of the original BOQ.
The respondents 1 and 2 filed Statement and contested the writ petition. The respondents stated that Ext.P8 corrigendum made certain corrections in the schedule of quantity, tender specifications and BOQ on noticing certain errors. By the corrigendum, quantities have not been changed for the region. There is no change in the Regions and the corresponding BOQ quantities. Only certain Electrical Circles were swapped.
It was not possible to alter the BOQ format in the e-tender platform once the tender submission start date is passed. The change in BOQ format would have entailed cancelling the whole tender process. PSC Poles were needed on emergency basis and the respondents could not have restarted the process by cancelling the tender proceedings already initiated. There is acute shortage of PSC polls. Bidders had opportunity to submit modified tender, in tune with the changes brought about as per Ext.P8.
Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents.
In the original Ext.P3 tender, Sl.No. 45.0 of the original Bill of Quantity (BOQ) was for manufacture and supply of 8m 200 Kg PSC Poles to Electrical Circles Shornur, Tirur, Vadakkanayi, Palakkad, Nilambur, Manjeri, and Kozhikode. The Ext.P8 corrigendum altered the Electrical Circles and hence the bid of the petitioner can be considered only for North Malabar Region consisting of Kannur, Kasaragod, Srikandapuram and Kalpetta Electrical Circles.
The Corrigendum was issued on 18.08 2021. The last date for on-line submission of tender was 24.08.2021. Therefore, all bidders had sufficient time to submit modified tender. Other bidders submitted modified bids in respect of Sl.No.45.0 of the BOQ. The petitioner did not. The argument of the petitioner is that the BOQ Templates were not changed and hence the petitioner could not submit tender as per alterations made as per Ext.P8. The said argument cannot be accepted as the petitioner very well could have bid for Sl.No.45.0. The alterations in the Electrical Circles were notified as per Ext.P8. In fact, other bidders made bids on the basis of altered bids or they were ready to confirm their bids already made before Ext.P8, for supply to the changed Electrical Circles. The petitioner did not.
The stand of the petitioner in this writ petition appears to be that since the respondents have notified the Electrical Circles under Sl.No.45.0 in Ext.P3 and since the petitioner has made his bids for supply to those Electrical Circles, he has a right to get his bid considered for those Electrical Circles. The said proposition cannot be accepted. The tendering authority is the final authority in the tendering process. Merely because a Tender Notification has been issued specifying certain supply circles, the petitioner does not get a vested right to bid and supply to those circles. The tendering authority has a right to make modifications in the notification, as per his/their requirements.
The tendering in respect of PSC Poles in the areas in question were already belated due to certain litigations and there was acute shortage of poles in the area. A retendering was found not feasible due to the emergency requirements and hence a corrigendum was issued. The petitioner did not modify his bid in tune with the corrigendum, when others did. The respondents 1 and 2 have satisfactorily explained why the BOQ Templates could not have been modified after the corrigendum.
In the circumstances, this court do not find any reason to interfere with the tender proceedings initiated by the respondents as per Ext.P3. The writ petition is therefore dismissed.