Kelanchandra Polymers Chingavanam vs Aymanam Grama Panchayath and Others

V. Chitambaresh, J—The first respondent Panchayat invited tenders for the supply of water tanks from the eligible persons. Ext. P1 tender notification merely states that "all conditions relating to tender" would apply. the petitioner quoted at the rate of Rs. 1870/- per water tank. This is discernible from Ext. P3 tender form submitted by the petitioner.

There were three other tenderers for the supply of water tanks. The tender submitted by the third respondent was the second highest. The third respondent quoted at the rate of Rs. 1925/- per water tank. The other two tenders quoted at rates higher than the petitioner.

It appears that only the tender submitted by the third respondent was accepted. The tenders submitted by the other tenderers were rejected. The only reason stated is that the tender was not accompanied by a preliminary agreement in the proforma. Reliance is placed on Rule 10(3) of Ext. P5 rules in this regard.

Rule 11 of the same rules relied on by the Panchayat is to the following effect:--

"11. Entrustment of works by negotiation:-- (1) In case the rates in the tenders received on publication of the notice under Rule 9 seems not acceptable or if sufficient number of tenders are not received the work shall be retendered.

(2) If the rate in the tenders received on retender is seen not acceptable, negotiation shall be made by the consensus of the Panchayat with the contractor who has submitted the lowest rate of tender and subject to the provisions of sub-rule (14) of Rule 10, such offer shall be accepted.

(3) The Panchayat may, if it considers necessary, by negotiation entrust any work for execution, to a Government recognised, financially sound and experienced voluntary organisation or institution and the rates decided by the Panchayat on negotiation subject to the provisions of sub-rule (14) or Rule 10 shall be allowed to them."

Rule 11(1) is clear enough that the work shall be re-tendered if sufficient number of tenders are not received. In other words one valid tender alone shall not be considered and accepted. Such a provision can be seen even in the PWD Manual. The Panchayat was bound to retender when only one valid tender was seen.

True it is that a negotiation is possible under Rule 11(2) of Ext. P5 rules. Such negotiation is possible only after a re-tender is conducted. The Panchayat in the instant case did not conduct any re-tender. The Panchayat now states that the rate has been lowered to Rs. 1865/- per water tank on negotiation with the third respondent.

When Rule 10 of Ext. P5 rules is put against the petitioner, then Rule 11 should also be made applicable. There has been an infraction of Rule 11 of Ext. P5 rules. It was unjust to reject Ext. P3 tender on the basis of an innocuous statement in Ext. P1 notification. The agreement of the nature insisted on is not part of the tender agreement. The same is evident from Clause 2007.2 of Ext. R1(k) PWD Manual.

The whole process of tender lacks transparency and smacks of mala fide. The best course open is to direct a re-tender by the first respondent Panchayat [See Standard Metals Vs. Kerala Small Industries Development Corporation and Others, (2012) 2 KLJ 379 ].

I direct the first respondent to conduct a re-tender in regard to the supply of water tanks. I find that no formal order accepting the tender of the third respondent after negotiation is passed. This is in view of the interim order passed in this writ petition. The process of re-tender shall be completed within a period of two months.

The Writ Petition is allowed. No costs.