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The petitioner is the sole tenderer for the work invited as per Ext.P2. The petitioner quoted below the estimated Probable Amount of Contract (PAC). This was rejected. The petitioner's tender was not accepted and fresh tender was invited as per Ext.P8. Challenging the fresh tender and also seeking a direction to accept petitioner's tender this writ petition is filed.
2. The 2nd respondent has filed a counter affidavit. It is stated that all of the Contractors were abstained from the civil works from the tender process except the petitioner. The petitioner has quoted 1.50% of below the estimate PAC and in respect of Tender No.61 and Tender No.62 in Ext.P2. However it is submitted that pursuant to re-tender, certain persons have quoted much below the amount quoted by the petitioner. It is the case of the State that in public interest, re-tender was issued and there is no illegality in inviting re-tender.
3. The petitioner relies on Ext.P5 circular issued by the Government of Kerala dated 1.8.2012. In Ext.P5, it stipulates that single bid in the first tender with estimate PAC or Below ER can be accepted by the Tendering authority. Therefore, it is submitted that there is no discretion left with the authority in rejecting the tender and they are bound to accept the petitioner's tender.
4. Ext.P5 is the only enabling provision to accept the single tender. 'Merely because there was only single tender, it is not necessary to reject the same'. The stipulation as above would indicate that discretion is given to the authority in accepting single bid. However, it does not clothe any right on the tenderer to command the respondent to award the work. It is a settled position of the law that no tenderer can claim vested right to have his tender accepted. However the power to reject tender cannot be exercised arbitrarily and it must depend on cogent reasons. It is stated in the counter that it is on account of the abstination of all tenderers from the civil works, there were no other tenderer and re-tender was invited based on public interest.
5. In Food Corporation of India v. M/s. Kamdhenu cattle Feed Industries [1993 1 SCC 71] in paragraph 10 it held as follows:
“From the above, it is clear that even though the highest tenderer can claim no right to have his tender accepted, there being a power while inviting tenders to reject all the tenders, yet the power to reject all the tenders cannot be exercised arbitrarily and must depend for its validity on the existence of cogent reasons for such action. The object of inviting tenders for disposal of a commodity is to procure the highest price while giving equal opportunity to all the intending bidders to compete. Procuring the highest price for the commodity is undoubtedly in public interest since the amount so collected goes to the public fund. Accordingly, in adequacy of the price offered in the highest tender would be a cogent ground for negotiating with the tenderers giving them equal opportunity to revise their bids with a view to obtain the highest available price. The inadequacy may be for several reasons known in the commercial field. Inadequacy of the price quoted in the highest tender would be a question of fact in each case. Retaining the option to accept the highest tender, in case the negotiations do not yield a significantly higher offer would be fair to the tenders besides protecting the public interest. A procedure wherein resort is had to negotiations with the tenders for obtaining a significantly higher bid during the period when the offers in the tenders remain open for acceptance and rejection of the tenders only in the event of a significant higher bid being obtained during negotiations would ordinarily satisfy this requirement. This procedure involves giving due weight to the legitimate expectation of the highest bidder to have his tender accepted unless outbid by a higher offer, in which case acceptance of the highest offer within the time the offers remain open would be a reasonable exercise of power for public good”
6. The State invited fresh tender for the reason that there was abstination of the contractors and if full opportunity is given, they may offer lowest amount. The petitioner in fact had the opportunity to take part in the re-tender. The State acted in a bonafide manner to protect the public interest, merely because the petitioner was a single tenderer, he cannot demand that his tender should be accepted. The discretion exercised by the respondent is bona fide in the public interest. Therefore, I do not find any merit in this writ petition and accordingly the writ petition is dismissed. No costs.
A.MUHAMED MUSTAQUE, JUDGE jm/