(1987)19S7 Januarv 21 [SAWIDES J ] IN THE MATTER OF ARTICLE 146 OF THECONSTITUTION ANDRONIKOS NICOLAOU Applicant, ν THE REPUBLIC OF CYPRUS THROUGH 1 THE MINISTER OFFINANCE 2 THE TENDER BOARD Respondents (Case No 647/85) Tenders — Violation of conditionin the relevantinvitationfor tenders—Effect Constitutional Law — Equality — Constitution Art 28 1 — Acceptance of tender violatingacondition of the relevantinvitation for tenders— Amounts to mfnngement of Art 281 Recourse for annulment — Tenders — Awards — Award of contract to interested party annulled — Matter has to be re-examined by the Tender Board — It follows that the refusalto award the tender to the applicant cannot, also, be annulled 5 The applicant and the interested party were among the tenderers for the supply of shinglefor theconstruction ofStrovolos Avenue 10 Term 6 of the relevant invitation for tenders provided that «every tenderer must accompany his tender by a certificate of fitness » and that «any offer not accompanied by a certificate of fitness will not be taken into considerationThough the tender of the interested party was not accompanied by a certificate of fitness, but only with a certificate that the sample was under examination, and though such sample was later found to be unfit, the tender was awarded to the interested party 15 As a result the applicant filed this recourse seeking (a) The annulment of the said decision and (b) The annulment of the refusal to accept the 2 0 tender of applicant and assign the contract to him Held
(1)It is clear that the tender of the interested party was not in 3 C.L.R. 5 10 Nicolaou v. Republic compliance with the special conditions of the invitation for tenders: such tender could not have been accepted. The decision of the Tender Board was reached in an irregular manner and in a manner inconsistent with the pnnciple of free competition and the right of equality of treatment. It follows that the decision to award the tender to the interested party has to be annulled.
(2)Prayer (b) cannot be granted, because in the light of the annulment of the decision to accept the tender of the interested party, the matter has to be re-examined It is for the respondent Board to decide which tender it should accept. Sub judice decision annulled £50 costs in favour ofapplicant. Casesreferred to 15 Etena Fortigon Aftokmiton Ltd and Others ν The Republic [19S61 ,*• C.LR 2014: KM.C Motors Ltd v. Municipality of Lamaca
(1986)3 C L R 92b. Georghios Kounnas and Sons Ltd. and another ν The Republic
(1972)3 CL.R. 542 MedconConstruction and Others ν TheRepublic(196S) 3 CL R 20 535. J Ν Chnstofides Trading Ltd. ν The Republic
(1985)3 CLR 54b Recourse. Recourse against the decision of the respondents to accept the tender of interested party, for the supply of shingle for the 25 construction of Strovolos Avenue, instead of the tender of the applicant. K. Talarides, for the applicant. Af Photiou, for the respondent. Cur. adv. vult. 30 SAWIDES J. read the following judgment. By this recourse the applicant seeks the annulment of the decision of respondent 2 to accept the tender of the interested party. 587 S a w i d e s J. Nicolaou v.Republic
(1987)Papalazarou Bros. for the supply of shingle for the construction of Strovolos Avenue (prayer (a)) He further prays for a declaration that the refusal of respondent
(2)to accept the tender of applicant and assign the contract to him is null and void, (prayer (b)) The facts of the case are bnefly as followsOn the 18th Apnl, 1985 the District Engineer of the Public Works Department of Nicosia invited tenders for the supply of 10,000 c m of shingle for the construction of the foundations of Strovolos Avenue It was an express term of the invitation for 10 tenders that they should reach the office of the AccountantGeneral of the Republic not later than 9 a m of the 24th May. 1985 Under the special terms of the said invitation and in particular term 6, the tenders were subject to the following «Every tenderer must accompany his tender with a 15 certificate of fitness issued by the laboratones of the Public Works Department of Nicosia in accordance with the sample of the material offered which has to be delivered for examination in time any offer not accompanied by a certificate of fitness will not be taken into 20 consideration» (The underlining is mine) Both the applicant and the interested party were amongst those who submitted tenders for the supply of shingle All the tenders were considered by respondent 2 on the 24th of May, 25 1985 and the tender of the interested party was the one finally accepted by respondent 2 It iscommon ground that the tender of the interested party was not accompanied by a certificate of fitness m compliance with term 6 of the special terms of the invitation for tenders Instead, a certificate was attached to the 30 tender mentioning that the sample was under examination The decision of respondent 2 was communicated to the Director of the Public Works Department on the 27th May, 1985 On the same date a letter was addressed by the applicant to the chairman of respondent 2 protesting against the acceptance of 35 the offer of the interested party on the ground that his tender was not accompanied by a certificate of fitness in accordance with paragraph 6 of the special terms of the invitation for tenders By such letter he also alleged that the sample 588 5 3 CL.R. Nlcolaouv.Republic Sawides J. produced for e\arnination by the interested party was found unfit and therefore, his tender should have been rejected on this ground as well The Director of the Public Works Department by his letter 5 dated 28th May. 1985. addressed to the Accountant-General as chairman of respondent 2 informed himas follows 10 «1 refer to the aforesaid tender which was granted to PapaLazarou Brothers on 24 5 85 and 1 wish to inform you that the sample which the tenderer has produced has been found as unfit The aforesaid tenderer produced a second sample which again was found unfit For this reason 1 request that the tender should be granted to the next tenderer. Mr Andronikos Nicolaou» 15 By letter dated the 21st June 1985 respondent 2 informed the applicant that his tender could not be accepted by the Tender Board As a result, applicant filed the present recourse challenging the sub judice decision The application was based on the following grounds of law 20 1 The sub judice decision was taken in violation of the regular procedure for the examination and acceptance of tenders 2 The Tender Board acted in violation of term
(6)of the special terms on the basis of which the invitation for tenders 25 was made 3 The sub judice decision and/or omission is contrary to law andwas taken in excessand/orabuse of power 4 The sub judice decision and/or omission is illegal in that it violates the principles of good administration 30 The question which poses for consideration in this case is whether there was an irregulanty in the process of consideration of the tenders, affecting their outcome It is well settled that if the consideration of the tenders took place in a manner contrary to the pnnciple of free competition 35 or in an irregular manner affecting its outcome, then the relevant administrative decision has to be annulled (Etena Fortigon Aftoktmton Ltd & others ν Republic (Case No 40/ 589 SawidesJ. Nicolaou ν-Republic
(1987)86) in which judgment was delivered on 21 11 86* KMC Motors Ltd ν Municipality of Larnaca (Ca3Lj \'o 441/83) in which judgment was delivered on 16 9 I9t>bj " (both still unreported) Also Georghios Kounnas Μ Sons Ltd and another ν The Republic
(1972)3 C L R 542 in which 5 reference is made inter alia to the Conclusions from the Case Law of the Council of State in Greece (1929 - 1959) at pp 430 - 431 Case 1965/47 and Cases 2028/47 and 2029/47 at Ρ 431) Counselfortherespondentsadmittedthattheacceptanceof the 10 tenderof the interested party was madeinviolation ofspecial term 6 which was a material one as thespecial terms were a substantial prerequisite of the tenders and nota mere formality but objected to prayer (b) of the relief which, in his submission, could not be granted *•* In Medcon Construction & Others ν Republic
(1968)3 C L R 535, the Court in annulling the decision of the respondent accepting the tender of the interested party which was not in compliancewith certain conditionsof theinvitation for thetenders one of which was that the tender should be accompanied by a 20 certificate of fitness of the material,had this tosay atpp 544, 545 (perTnantafyHides, J , as hethen was) «It was not possible or permissible to treat the interested party as a tenderer at all, because, though the initial non compliance by the Interested Party with term 11 of the 25 invitation for tenders could have been waived - as itwas done - itwas expressly provided by term 13 thatany tender which would not be accompanied by a certificate of fitness, of the matenal offered, given by the District Engineer of the Public Works Department,would notbe taken intoaccount,anditis 30 common ground that the tender of the Interested Party was notaccompaniedby acertificate of fitness Thusthe interested party was treated as having submitted aVdlidtender,when by express provision intheinvitation for tendersthiscould notbe done,anditwas notpossible toputthingsnght,expostfacto,by 35 decidingthatthe contractwouldbe awardedtothe Interested Party provided that the quarry and crushing plant of the InterestedPartywould be inspectedandfound tobe fit for the purpose (see exhibit 7(a)) - see, also, Decisions of the Greek *Reportedin
(1986)3CLR 2014 *·Reportedm
(1986)3CLR 1925 590 3 C.L.R. 5 10 Nicolaou v. Republic S a w t d e s J. Council of State 531
(49)vol. B, p. 13, and 1403
(60)in Zacharopoulos Digest 1953 - 1960 vol. 1 a - k, p. 489. Moreover.-.tenderers were entitled to equality of treatment and toexempt the Interested Partyfrom compliance with the express requirement of term 13of the invitation for tenders. andfrom thesanctionforsuchnon-compliance,was.notonly contrary togood and properadministration and inabuse and excess of powers, but also contrary to the requirement for equality of treatment laid down by Article 28.1 of the Constitution.» Inthe case ofJ. N. ChristofidesTradingLtd. v.Republic
(1985)3C.L.R.546,theCourtannulledthedecisionoftheTender Board onthegroundthatthetenderwasnotaccompaniedbya certificate thatitcomplied withcertain prerequisites. .e „« Itisclearinthe circumstances ofthepresent casethatthe Board accepted the tender of the interested party which was not in compliance withthespecialconditionsoftheinvitation fortenders; such tender could not have been accepted. The decision of the Board was reached in an irregular manner which affected the outcome of the exercise of itsrelevant powers, and in a manner inconsistent with principles of free competition and the right of equality of treatment which issafeguarded by Article28.1 of our Constitution, hasbeenviolated.Therefore, thesubjudicedecision hastobe annulled. 25 As to the prayer under paragraph (b), 1 find that such prayer cannot be granted, inviewofthe factthatbytheannulment of the decision for the acceptance of the tender in question the matter has to be re-examined in the light of this decision and itisfor the respondent Board to decide which tender itshould accept. 30 Inthe resultthesubjudicedecision isannulled. In the circumstances of the case 1 allow £50. -against costs in favour ofthe applicant. Subjudice decision annulled. Respondents to 35 pay £50.-costs. 591