Mujeeb Rehman vs State Of Kerala

N. Nagaresh, J.

The petitioner, who is running a proprietorship concern named B.M. Traders, is before this Court seeking to declare that he is the valid bidder considering the fact that the petitioner alone has submitted Ext.P3 price schedule in the tender strictly following the stipulations in Ext.P2. The petitioner further seeks to declare that Ext.P4 submitted by the 3rd respondent is in patent violation of the tender conditions and therefore the tender submitted by the 3rd respondent cannot be accepted.

M/s.Kerala State Industrial Enterprises Limited (KSIE) floated Online e-tenders for the disposal of used plant and machinery, building and miscellaneous assets at Trivandrum Air Cargo Terminal. The petitioner submitted Ext.P2 e-tender. Tenders were opened on 24.09.2021. The status as published on 24.09.2021, was changed on 13.10.2021. In the said list, the petitioner's bid and the bid of the 3rd respondent were shown qualified whereas other bids were recorded as rejected.

Ext.P3 is the price schedule submitted by the petitioner and Ext.P4 is that of the 3rd respondent. According to the petitioner, his bid for ₹1,54,865.20 was the highest. As far as the 3rd respondent is concerned, the entries in the price schedule did not satisfy the requirements in the tender form. All columns in the price schedule were not filled by the 3rd respondent. The 3rd respondent did not fill GST Column. Basic rates and total amounts shown by the 3rd respondent were the same. The petitioner submitted Ext.P6 representation to the respondents pointing out these defects. But, the respondents did not act on Ext.P6. Therefore, the petitioner has approached this Court.

Respondents 1 and 2 filed counter affidavit and pointed out that as per Clause 5 under Section 4 in Ext.P2, the rates quoted by the bidders shall be exclusive of sales tax or any other applicable taxes. The bidders were required to quote the lump sum price payable to KSIE for the value of scrap generated on dismantling. Clause 14 also required that all quotations should be for the net amount accruable to the KSIE. It was also made clear that all duties and taxes shall be borne by the tenderer and that GST will be charged extra from the tenderer. In view of such conditions, the bid of the 3rd respondent cannot be treated as defective.

In his counter affidavit, the 3rd respondent stated that he has quoted total basic rate of ₹36,34,280/- whereas, the petitioner's total basic rate was only ₹32,11,140/-. Therefore, the quote of the 3rd respondent is the highest. The tender is under process and is yet to be finalised. The writ petition is therefore premature. The materials are stored near sea shore. Hence, any delay in finalisation of tender would damage the iron parts.

Heard the learned counsel for the petitioner, the learned Standing Counsel for the 2nd respondent, the learned counsel for the 3rd respondent and the learned Senior

The petitioner's contention is that the bid made by the 3rd respondent is incomplete and invalid, lacking necessary materials. Therefore, the petitioner's bid should be accepted. The defects alleged by the petitioner in the quote made by the 3rd respondent are that the GST column is defective, that basic rates, total amount without taxes and total amount with taxes are the same in the quote and that

the GST column is left vacant.

The requirements in Ext.P2 Notification are relevant in this regard. Clause 5 under Section 4 required that the rates quoted by the bidders should be exclusive of sales tax or any other applicable rates. Clause 16 under Section 5 provided that GST will be charged extra from the tenderer, as applicable. Since the quotation is offered as mixed lot, attracting different rates of GST, then the highest rate of GST will be charged for the whole lot. Clause 15 provided that State Excise Duty, Sales Tax/VAT/GST, Octroi, etc. shall be borne by the tenderer before taking delivery of the lot. In view of the afore provisions, it is crystal clear that quotes on GST and other taxes are not at all relevant in selecting and deciding the successful tenderer.

The  petitioner  would  contend  that  the  3rd respondent has not filled all the columns in tender form. The allegation is that the GST column is left blank by the 3rd respondent. The stand of respondents 1 and 2 is that this is because the respondents were using NIC e-tender website which has a facility for quoting GST rate and the general template of NIC could not have been altered by respondents 1 and 2.

The further allegation that basic rates, total amount without taxes and total amount with taxes are the same in the quote also cannot be a defect due to the fact that the latter two amounts are not relevant to select the highest bidder and those template columns could not have been altered by respondents 1 and 2. After all, from the bids/quotes made by the parties, respondents 1 and 2 can very well come to a conclusion as to who is the highest bidder, deserving the award of tender. In fact, the respondents have not finalised the bid so far.

In the circumstances, this Court finds no merit in the writ petition. The writ petition is therefore dismissed.