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Judgment
R.S. Ramanathan, J.—Heard both sides.
W.P. (MD) No. 2784 of 2008: The petitioner is a Diploma holder in Civil Engineering and a first class contractor of P.W.D. The petitioner is having experience in construction work and he has in the field for more than 20 years. He submitted tender, in response to the 2nd respondent''s tender notification, dated 27.12.2007, for construction of 7 Nos concrete platform with covered shed of total capacity 10,000 M.T. in TNSTC Ltd campus at Pillaiyarpatti village, Thanjavur Taluk in Thanjavur District. According to the petitioner, the tender was opened on 30.01.2008 and as per the tender quoted by various tenderers, the rate quoted by the petitioner was the lowest one. Nevertheless, his tender was not accepted and the 2nd respondent by his order, dated 08.03.2008 informed the petitioner, the tender for the work allotted to him, has been cancelled and directed the petitioner to get back the EMD, this order is challenged in this writ petition.
W.P.(MD) No. 3044 of 2008: The petitioner is a Diploma holder in Civil Engineering and a first class contractor of P.W.D. The petitioner is having experience in construction work and he has in the field for more than 20 years. He submitted tender, in response to the 2nd respondent''s tender notification, dated 27.12.2007, for construction of 7 Nos. concrete platform with covered shed of total capacity 10,000 M.T. in TNSTC Ltd campus at Punakulam village, Pudukottai District. According to the petitioner, the tender was opened on 30.01.2008 and as per the tender quoted by various tenderers, the rate quoted by the petitioner was the lowest one. Nevertheless, his tender was not accepted and the 2nd respondent by his order, dated 12.03.2008 informed the petitioner, the tender for the work allotted to him, has been cancelled and directed the petitioner to get back the EMD, this order is challenged in this writ petition. In the two writ petitions, the petitioner challenged the order of cancellation.
The respondent filed the detailed counter affidavit in W.P.(MD) No. 2384 of 2008 stating that the reason in not accepting the tender of the petitioner in respect of the 2nd item of tender notification and also questioned the capability of the petitioner in completing the project.
Mr. G. Arockiasamy, the learned Counsel appearing for the petitioner, contended that the respondents are discharging public functions and when they have rejected the petitioner''s tender, which is a lowest one they ought to have given sufficient and justiciable reasons in not accepting the petitioner''s tender and they should not have issued the impugned order, by simply stating that the tender for the above work is cancelled. He further challenged the allegation made by the respondents in the counter affidavit that the petitioner is not having rich experience and if the tender work is entrusted to the petitioner, he may not complete the work.
According to the learned Counsel appearing for the petitioner, the petitioner is a Diploma holder in Civil Engineering and he has got rich experience in such kind of work, including the truss fabrication work and he was always prompt in executing the work within the stipulated time and there is no complaint against the petitioner in respect of the quality of work completed by him on earlier occasions and the cancellation order passed by the respondent is arbitrary and is to be set aside.
It has been held by this Court on various occasions that the power of the court to review the order of the executive authority in such matter is very limited and the 2nd respondent, who are having qualification and experience are the best person to decide and unless the order is perverse, arbitrary or malafide in nature, this Court will not interfere with the decision taken by the respondents. In other words, this Court can only appreciate and evaluate the decision making process of the respondents and when there is no arbitrariness or malafide in the decision making process, this Court cannot act as appellate authority and review the order of the respondents in the matter of tender.
It is seen from the impugned order passed in these cases, the respondents had simply informed the petitioner that the tender for the work has been cancelled and directed the petitioner to get back the EMD. But no reason was stated in the impugned order and it is not brought to my notice by the petitioner, by producing the tender conditions that while rejecting the tender, the respondents should state the reason for not considering the petitioner''s tender, which is admittedly the lowest tender compared to other tenderers.
It is the accepted principle that in the matter of tender, no concluded contract has come into force, by submitting the tender by the petitioner in response to the tender notification and until the tender has been accepted by the respondents and the contract is issued in favour of the petitioner, no concluded contract has come into effect and therefore, it is always open to the respondents either to reject the tender of the parties or cancel the tender.
In this case, in the impugned order, it has been stated that the tender has been cancelled, no reason has been stated for cancellation. Further, no allegation has been made against the competency or ability of the petitioner in completing the work for disqualifying the petitioner, while rejecting the petitioner''s offer. Therefore, it cannot be stated that the respondents have acted in an arbitrary manner and having regard to the lowest tender quoted by the petitioner he ought to have been given the tender. 11.The learned Counsel appearing for the petitioner, however, submitted that though it is not incumbent on the part of the respondents to give the reason for rejecting the offer of the petitioner being the public authority, he ought to have stated the reason for not considering the case of the petitioner.
According to him, the respondents are the statutory authorities exercising the statutory functions and therefore, they should have stated the reason for rejecting the petitioner''s offer. He further submitted that even though no reason has been stated in the impugned order, the respondents have filed the counter affidavit wherein they have stated the reason for not giving the tender to the petitioner and they also questioned the competency and the expertise of the petitioner in completing the project and they doubted the capability of the petitioner and hence, the petitioner was not given any tender by imputing allegations against the expertise. which will amount to stigma in his carrier and it has got civil and evil consequences against him and hence, before passing such order, opportunity might have been given to the petitioner and therefore, the impugned order is liable to be set aside.
As stated supra, in the impugned order, no reason has been stated and at the risk of the repetition in the order passed by the respondents, it has only been stated that the tender work is cancelled. Therefore, no allegation has been made against the petitioner about his competency and capability in carrying out the work. Being the un-concluded contract, it is always open to the respondents either to accept or reject his offer. In this case, the respondents have only cancelled the tender and they have not stated that the petitioner''s tender was rejected. Therefore, from above word ''cancelled'' in the impugned order, it cannot be stated that by reason of the order, the petitioners suffered stigma and hence, without giving an opportunity, the authority should not have been passed the order cannot be accepted.
Further, in my opinion, it is the petitioner, who forced the respondents to come out with the reason for not considering the petitioner''s offer. In the counter affidavit, it has been stated in detail, the reason for not accepting the lowest quotation of the petitioner, in para 3 to 7 which is as follows: " it is submitted that as per the procedures laid down in Tamil Nadu Transparency in Tender ACT 1998 (Tamil Nadu Act 43 of 1998) and Tamil Nadu Transparency in Tender Rules, 2000. The Managing Director respondent 2, herein has informed A committee for opening and scrutiny of Tender consisting of the following officials.
1.Construction Engineer.
2.Financial Advisor and Chief Account Officer
3.Executive Engineer/Chennai Division
It is submitted that the tender was opened by the Tender Scrutiny Committee members on 30.01.2008 at 3.15 P.M. in the presence of the Tenderers. Out of four tenders received, tender furnished by Thiru. K. Durai Raj, Vaduvoor has been rejected since he is not qualified as per eligibility conditions and the tenders of other three qualified contractors were scrutinized with reference to the sanctioned estimate rates for the year 2007-2008.
From the comparative statement details comparison is furnished below:
Estimated value put to Tender Rs.75,68,333/- --------------------------------------------------------------------------------
Rate quoted by --------------------------------------------------------------------------------
Ms. V.R.R. Builders, Chennai Rs.85,91,250/- (+) 12.56% --------------------------------------------------------------------------------
Thiru. G. Velu, Thiruvallur Rs.87,19,230/- (+) Rs.11,50,897/- (+) 15.20% --------------------------------------------------------------------------------
Thiru.M.Manimaran, Pudukkottai Rs.72,12,460/- (Writ Petitioner) Rs.3,55,873/- (+)4.70%
It is submitted that the petitioner has quoted the lowest rates for a total amountRs.72, 2,460/- which is (-) 4.70% is Less than the Public Works Department Schedule of Rates for the year 2007-2008 of the Technically sanctioned estimate Rates for Rs.75,68,333/- (i.e.) Departmental value of work put to tender)
On verifying the rates quoted by the lowest tender for individual item it is noted that he has quoted unworkable rates for certain items mainly truss fabrication work, and laying Asbestos Cement Sheet roofing which is main part of this work.
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Item No Description Rate Quoted Department Rate % --------------------------------------------------------------------------------
Labour charges for Rs.8.00 per Rs.15 per Kg (-)46% fabrication of Mild Kg Steel angles and wind bracing for trusses
Labour charges for Rs.20.00 Per Rs.89.00 Per M2 (-) 77% roofing with Asbestos M2 Cement sheet --------------------------------------------------------------------------------
It is submitted that in order to get credential report of the petitioner, Assistant Executive Engineer/Trichy region of the respondent''s office has been instructed to obtain the previous performance report of the petitioner from Public Works Department. The Assistant Executive Engineer/Trichy, Region has reported that on enquiries with Public Works Department Division & Sub Division office, Pudukkottai and Circle office at Trichy, it has been informed that the petitioner has carried out only special repair works except one (or) two school building work and he is not having any experience in truss fabrication work.
I submit that on personal enquiry with officials of Public Works Department by the respondents office Assistant Executive Engineer/Trichy Region, it has been informed that the petitioner is not prompt in executing the work within the stipulated time in Public Works Department. Further, it is pointed out that the truss fabrication and Asbestos Cement sheet laying work is the finishing items of work. If the petitioner fails to complete the work in the final stage (due to unworkable rates for the above item) it may cause additional expenditure and time to the corporation to complete the work by engaging another tenderer which may not only result inconvenience to the respondent corporation but also loss to the corporation.
It is respectfully submitted that if the respondent award the work to the petitioner who is not having much experience in the work of fabrication of roof trusses, it may end up with non completion of work. The respondent corporation floating similar tenders for purchase and disposal of stocks, has already had bitter experience and suffered a lot in getting work done by similar contractors.
It is further submitted that this petitioner is not having previous experience in carrying out angle iron roof truss work which is a skilled structural fabrication works, in the absence of experience in dealing with the work the petitioner has quoted unworkable truss fabrication works and Asbestos Cement Sheet roofing. It explicitly shows that the petitioner has no knowledge of the above work and if the respondent Corporation entrust this work along with Corporation Materials worth Rs. 40 lakhs for fabrication works, there is high risk of not completing the work, besides the main reason for cancelling the tender is that accommodate the total cost of budgetary sanction of Rs. 1.50 crores for making the structure to with stand wind and seismic force. It is submitted the reason behind is that respondent corporation is supplying entire steel materials to the construction and the cost of steel has increased in double fold subsequent to this tender. Hence the respondent running under the subsidy of the Government is under constrain to complete the work with in the sanctioned amount by the Government.
Further, in the reported judgment in 2008 W L.R.156 in the case of P. Krishnan, Proprietor, Ms. Ambal Traders, 19/8, Aziz Mulk 5th Street, Thousand Lights, Chennai - 600 006 v. 1. The Commissioner, Panchayat Union, Sholavaram, Tiruvellore District. 2. The Project Officer, Directorate of Rural Development Authority, Thiruvellore District, 3. M/s. Usha International, No. 89 Mount Poonamallee High Road, Ramavaram, Chennai-600 089, following the order passed in W.P. No. 4769 of 2009, which was reported in (A. Soosai Mary v. Superintending Engineer, Public Works Department, Trichy (2007) 2 MLJ 787 wherein par-9 it has been held that "If a tender is given, it is merely an offer and only if it is accepted absolutely, any contract can come into force, otherwise, no right flows from such an offer. The principles of judicial review would apply to the exercise of contractual powers by the Government bodies in order to prevent arbitrariness or favouritism. Article 14 of the Constitution have to be kept in view when accepting or refusing the tender. However, there can be no question of infringement of Article 14 of the Constitution of India, when the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. As regards awarding of contract, what is paramount is public interest. It is open to the Government to reject event the highest bid at a tender where such rejection is not arbitrary or unreasonable or such rejection is in public interest and for valid and good reasons, In this case, no such arbitrariness was found".
No doubt, in this case, no reason has been stated for cancelling the tender. However, for the reasons stated above, in my opinion, the order of the respondents cannot be questioned on the ground that it is vitiated for not stating the reason and in the counter they have explained the reason for not accepting the tender of the petitioner, though he has quoted the lowest amount. Therefore, it cannot be stated that the decision of the respondents are arbitrary or unreasonable.
According to me, the respondents are competent persons to decide on the technical matters and this Court cannot interfere with the finding of the respondents in respect of those technical matters. Therefore, in my considered opinion, this Court cannot review the decision of the respondents by reason of the impugned order, no civil or evil consequence violated for the petitioner.
Hence, I do not see any merit in the writ petitions and the same are dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. No costs.