KAILAS ν. REPUBLIC
(1988)3 CLR 274 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1988)3 CLR 274 1988 February 18 [LORIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION GEORGHIOS KAILAS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF FINANCE, Respondent. (Case No. 1066/85). Recourse for annulment-Parties-Court entitled to act expropriomotu and order amendment of the description of the respondent. Tenders-Consideration of, in a manner contrary to the principles of free competition or in an irregular manner-Ground for annulment. Tenders-Acceptance of a tender, which was not the lowest-Does not lead to annulment by itself, because in accordance with the terms of the invitation to submit tenders, the tender Board was not bound to accept the lowest or any tender. Tenders-Due inquiry-Complaint that there has not been a proper inquiry-Not substantiated. The sub judice decision was taken by the "Main Tender Board", and not by the Minister of Finance, referred to in the title of the recourse. By means of the recourse the applicants impugned the decision, whereby the contract for the printing of the book "Κυπριακά Δημώδη Άσματα" was awarded to another tenderer. Applicant's tender was the lowest. The main complaint was for lack of due inquiry. It must be noted that the applicants did not comply with termNo. 10 of the required specifications for the proposed printing, in that they did not submit together with their tender, specimens of the "Photosynthesis" corresponding to the relevant printing "type", referred to in the specifications. When they later submitted such specimens, it transpired that they were not of the "type" envisaged by the specification. In reaching the sub judice decision the Board considered the views of the Government Printing Office, the recommendations submitted by the Scientific Research Centre and the views of the authors of the book in question. Held, dismissing the recourse:
(1)The sub judice decision was taken by the "Main Tender Board". The description of the respondent in the title of the recourse should be amended accordingly.
(2)It is well settled that if the consideration of tenders takes place in a manner contrary to the principles of free competition or in an irregular manner affecting its outcome then the relevant decision has to be annulled. No such violation is alleged in this case.
(3)One must not loose sight of the fact that in the invitation of tenders it was clearly stated that the Board was not bound to accept the lowest or any other tender.
(4)The complaint as regards lack of due inquiry was not substantiated. Recourse dismissed. No order as to costs. Cases referred to: V Christodoulou v. Republic, 1 R.S.C.C. 1; Yiannaki v. Republic
(1965)3 C.L.R. 561; Medcon Construction and Others v. Republic
(1968)3 C.L.R. 535; Kounnas and Sons Ltd. v. Republic
(1972)3 C.L.R. 542; Christofides Trading Ltd v. Republic
(1985)3 C.L.R. 546. Recourse. Recourse against the decision to award the tender for printing the book"Κυπριακά Δημώδη Άσματα" to the interested party in preference to the tender of the applicant. A. Hadjiloannou, for the applicant. A. Vladimirou, for the respondent. Cur.adv. vult. LORIS J. read the following order and.judgment: ORDER The present recourse was filed against "the Republic, through the Ministry of Finance", apparently because the reply to the complaints of the applicant (vide Appendix "Z" attached to the opposition) emanates from the "Ministry of Finance". As, however, the competence concerned, under Regulations 21 and 22 of the Government Stores Regulations, is vested directly to the "Main Tender Board" which is not referred to at all in the title of the present recourse, I consider it more proper that the description of the Respondent should read: "The Republic through the Main Tender board, "and acting ex propiomotu I do hereby order that the title of the proceedings be treated as having been amended accordingly. I have taken this course in the light of the decision in Christodoulou and the Republic, 1 R.S.C.C. p.1, followed in ParaskeviYiannaki and the Republic, through the District Officer Nicosia-Kyrenia
(1965)3 C.L.R. 561 at p. 564, as I am of the opinion that the amendment at this stage, does not prejudice either of the parties in these proceedings, or the interests of justice, in any way. JUDGMENT The applicant by means of the present recourse, as amendedabove, challenges the decision of the Main Tender Board (Communicated to the applicant by letter addressed to him on 23.10.85 on behalf of the Accountant -General as President, of the Main Tender Board), whereby the contract for the printing of the book"Κυπριακά Δημώδη Άσματα" in respect of which tenders were invited on 17.4.85 was awarded to "Zayallis Press Ltd." in preference to the tender of the applicant and the other competitors. On 17.4.85 the Director - General of the Ministry of Education invited tenders for the printing of the above mentioned book (Vide appendix "A" attached to the opposition as well as relevant specifications as to proposed printing type attached thereto). Four tenders in all were submitted in response to the aforesaid invitation of tenders amongst which those of the applicant and "Zavallis Press Limited" (vide attachments to appendix B of the. opposition). The Director of the Scientific Research Centre after obtaining relevant information from all four applicants in connection with the proposed printing type and after enquiring with the Head of the Government Printing Office and obtaining his views on the matter, submitted his recommendations to the respondent Board (vide appendix B including annexes thereto). The respondent Board after considering the views forwarded to it as aforesaid and having heard MessrsMenelaos Christodoulou and Kl. Ioannides -the authors of the book to be printed-decided to prefer the tender of Zavallis Press Limited and awarded to the latter the tender in question (Vide appendix E attached to the opposition). The aforesaid decision of the Respondent Board was communicated to the applicant on 23.10.85. The applicant on 8.11.85 through his counsel, by letter of even date addressed to the respondent Board, sought explanations for the aforesaid decision submitting at the same time his complaints (vide appendix E attached to the opposition). On 14.11.85 a letter in reply was forwarded to the applicant on behalf of the respondent Board (vide appendix "Z" attached to the opposition). The applicant feeling aggrieved filed the present recourse praying for the annulment of the sub-judice decision of respondent Board. It is well settled that "if the consideration of tenders takes place in a manner contrary to the principles of free competition or in an irregular manner affecting its outcome then the relevant decision has to be annulled." (Medcon Constructions and others v. Republic
(1968)3 C.L.R. 535 and Kounnas and Sons Ltd and another v. Republic
(1972)3 C.L.R. 542- vide also in this connection Christofides Trading Ltd. v. Republic
(1985)3 C.L.R. 546). The recourse of the applicant is not alleging any violations governing the procedure regarding tenders nor does it challenge the .successful tenderer for any irregularity in the submission of his tender. The complaints of the applicant; as I was able to comprehend them, are to the effect that a proper inquiry was not carried out and as a result thereof the respondent Board acted under a misconception as to material facts; in addition the applicant maintains that his tender for the printing in question was lower than that of the successful tenderer. Furthermore there is a vague allegation to the effect that the sub-judice decision violated the principle of "fair administration" in that the successful tenderer was favourably treated, but there is nothing on record to substantiate the latter allegation. Before proceeding to examine the main complaint of the applicant, notably failure of the respondent Board to carry out due enquiry, I intend to dispose of briefly the complaint of the applicant to the effect that his tender for the printing in question was lower than that of the successful tenderer. It is an undisputed fact that the tender of the applicant was lower than that of Zavallis Press Ltd, the successful tenderer; in this connection we must not loose sight of the fact though, that inthe invitation for tenders (vide Appendix A - paragraph 4) it was clearly stated that the Board was not bound to accept the lowest or any other tender. Turning now to the issue of due inquiry: It is clear from the specifications as to the proposed printing type (vide relevant specifications attached to Appendix "A" ) that the printing of the said book could be made either by the "Monotype" or the "Photosynthesis" system. Those submitting tenders for the printing by the "Photosynthesis" system were required pursuant to paragraph 10 of the aforesaid specifications, to submit together with their tender, specimens of the "Photosynthesis" corresponding to the relevant printing "type", referred to in the specifications. The applicant failed to comply with the requisites of paragraph 10 above, of the specifications, although his tender made it clear that he intended to carry out the printing work by the system of "photosynthesis." At the instance of the Scientific Research Centre Mr. Menelaos Christodoulou, one of the members of the Research Centre, approached the applicant and urged him to submit the relevant printing "type". The applicant submitted some of the printing "types", which were not of the "type" envisaged by the respective specifications; furthermore he stated that, as regards the special symbols of the Cyprus Idiomatic dilect, he could only furnish "Upright" type and "Italics" only, contrary to the specifications appended to the invitation for tenders (vide in this connection the relevant material in Administrative files Exhibits 1 and 2 before me - also the report of Mr. Menelaos Christodoulou attached to the written address on behalf of the respondent, which directly contradict the vague allegations of the applicant set out in his affidavit of 26.5.87). The Scientific Research Center after examining all the tendersand after obtaining the views of the Head of the Government Printing Office in view, of the difficulties presented by the "photosynthesis" system, above, and the consequential inability of the applicant to comply with the specifications as to the type of printing accompanying the invitations for tenders, (vide Appendix "B" including annexes thereto) submitted his recommendations to the respondent Board, which having considered the views of the Government Printing Office, the recommendations submitted by the Scientific Research Centre and obviously after hearing the views of MessrsMenelaos Christodoulou and K1. Ioannides- the authors of the book in question - who were present (vide Appendix "C" ) decided to award the tender to Zavallis Press Ltd., who were to perform the printing work by the "monotype" printing system using printing "type" approved and recommended by the Scientific Research Centre (vide letter of Dr. Kyrris dated 6.9.85). It is abundantly clear from the above that a due inquiry has been carried out by the respondent Board, before reaching its decision which in the circumstances was reasonably open to it. In the result present recourse fails and is accordingly dismissed; in the circumstances I shall make no order as to costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο