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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 2328
1985 December 23
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION
A. TRIKOMITIS LIMITED,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF FINANCE AND OTHERS,
Respondents.
(Case No. 480/84).
Administrative Law-Policy adopted by an administrative organ-The Court, as an administrative Court, does not enter into the question whether the policy is a proper one or not-Tender awarded to the interested party in furtherance of a policy for the protection of products of Cyprus companies-In view of the said principle this recourse whereby the said award was challenged has to be dismissed.
The applicant company was among the six tenderers who submitted a tender for the supply of one tipper-lorry truck vehicle for which tenders were invited through Notification in the Official Gazette.
The Ministerial Committee for tenders at its meeting on the 24.4.1984 considered the question of "The Grant of Protection to the Motor Industry" and decided that KMC (Motors) Ltd. is the only recognised motor industry and is entitled to 15% protection, and that "if any other company submits to the Ministry of Commerce and Industry an application the matter will be examined by this Ministry for protection".
On 21.6.1984 the Tender Board considered the tenders for the above mentioned tipper-lorry and having taken into consideration the protection to which KMC (Motors) Ltd. was entitled it awarded the tender to that company.
As a result, the applicant company who had submitted the cheapest tender, filed the present recourse, challenging the said award to KMC (Motors) Ltd.
Counsel for he applicant submitted that the said decision of the Ministerial Committee was wrong for a number of reasons including the fact that the term "car manufacturer" clearly implied that the car engine spare parts and body is manufactured in Cyprus. In that respect reference is made to the definition of the word "manufacturer" appearing in the Universal English Dictionary Counsel insisted that there was no difference in this respect between the Applicant Company and KMC (Motors) Ltd.
Held, dismissing the recourse:
(1) The submission that there was no difference between the applicant and the interested party cannot be accepted. The applicant company could have applied under the said decision of the Ministerial Committee to be considered as a recognised motor industry, but it never so applied. Such an application would have entailed an inquiry for the examination of all relevant facts.
(2) It is well settled that administrative Courts do not enter into the question as to whether or not a policy adopted by the administration is a proper one. It is clear that the sub judice decision was taken in furtherance of such a policy, namely the protection of products of Cyprus companies. It follows that this recourse has to be dismissed. (A passage in the judgment of Triantafyllides, P. in Carayiannis v. The Republic (1980) 3 C.L.R. 39 at p. 44 cited with approval).
Recourse dismissed.
Cases referred to:
Carayiannis v. The Republic (1980) 3 C.L.R. 39
Recourse.
Recourse against the decision to award the tender of one tipper-lorry truck vehicle to the interested party K.M.C. (Motors) Ltd.
G. Triantafyllides, for the applicant.
S. Georghiades, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. The applicant Company were among the six tenderers who submitted a tender for the supply of one tipper-lorry truck vehicle for which tenders were, invited through Notification in the Official Gazette of the Republic. The specifications for the said vehicle and, the other terms governing the matter are set out in Appendix "A" to the opposition, to the contents of which I need not refer as they are not in, issue in these proceedings.
The Ministerial Committee for Tenders at its meeting of the 24th April, 1984, considered the question of "The Grant of Protection to the. Motor Industry" and under that heading the following is recorded in the minutes of their meeting of that date. (Appendix "C").
"The whole subject discussed in depth. Having in mind all the facts which are set out in the report of the Committee that was set up for the purpose on 3rd February 1984, and the explanations of the Minister of Commerce and Industry it was decided that the Company K.M.C. (Motors) Ltd. is the only recognised, motor industry and is entitled to 15% protection.
If any other Company submits to the Ministry of Commerce and Industry an. application the matter will be examined by this Ministry for protection."
The Tender Board at its meeting of the 21st June, 1984 considered the Tenders in question along with the relevant - reports submitted to it according to the established procedure and took the following decision (Appendix. D).
"Supply of a tipper-lorry vehicle (Department of Electrical and Mechanical Services):- 5/84/17, dated 6.4.1984.
The report of the Director of the Department of Electrical and Mechanical Services under No. 5/84/17, dated 15.6.84, studied.
The Tender Board taking into consideration the percentage of protection (15%) for the local industry awarded the tender to Messrs K.M.C. (Motors) Ltd., as follows:
One tipper-lorry vehicle K.M.C. 11/16 R. diesel engine PERKINS 6.354 six, cylinder at the price of £14,450 duty free, delivery at the work shops of E.M.S."
This decision is the subject of this recourse and is challenged on the ground that the respondents acted in excess or abuse of power and were wrong in awarding the said vehicle to K.M.C. Motors Ltd., as they should have awarded it to the applicant Company whose tender was cheaper and more advantageous to the Republic. The report of the Director of the Department of Electrical and Mechanical Services (Appendix E) which was submitted to the Accountant-General in his capacity as President of the Tender Board, through the Technical Committee which approved same reads as follows:
"I wish to refer to the above tender and submit herebelow the views of my Department on the offers received.
Six tenders were received and they are tabulated in detail and appear on the attached table.
The lowest offer is No. 6 for a 'HINO KB322' tipper lorry at the price of £13,900. This vehicle is powered by a 9.838 cc engine developing 190 HP and has a payload of 9,700 kgs.
Following is tender No. 2 offering a KMC 11/16 R tipper lorry at the price of £14,450. This vehicle is powered by a 5,800 cc engine developing 132 HP and has a payload of 10,500 kgs.
The prices of the remaining tenders are considerably higher and therefore they are not examined any further.
Both tender No. 6 and tender No 2 are according to specification and meet our requirements.
The decision as to which vehicle should be purchased is left to the Tender Board."
Counsel for the applicants has pointed out that there appears to be a typing error in the price of the applicant Company being quoted as £13,900 instead of £13,700 but no issue is made out of this.
It was argued on behalf of the applicant. Company that from the said letter it became clear, that the lowest Tender was that of the applicant Company, that vehicle was powered by a. 9,838 cc engine developing 190 H.P. and at a pay load of 11.700 kgs and the second lowest Tender was that of K.M.C. Motors which was £750 more expensive than that of the applicants at £1 4,450; moreover the vehicle offered by K.M.C. (Motors)" Ltd. was powered by 5.800 cc engine developing 132 H.P. and at a. pay load of 10.950 kgs.
It was, however, conceded that both the above Tenders were within the specifications and although no direct recommendation was made to the Tender Board, counsel for the applicant Company urged that the Tender of the applicant Company being cheeper was preferred by the Department of Electrical and Mechanical Services to the other one.
It was further argued that the decision of the Ministerial Committee for Tender giving a 15% protection to KM.C. (Motors) Ltd., was wrong for a number or reasons including the fact that the term "car manufacturer" clearly implied that the car engine spare parts and body is manufactured in Cyprus in that respect reference is made to the definition of the word "manufacturer" appearing in the Universal English Dictionary.
The matter was further elaborated by counsel who insited on there being no difference between the applicant Company and K.M.C. Motors Ltd., in this respect. I do not subscribed to this view as the applicant. Company never applied to be considered as a recognised motor industry which they could have done and which as indicated in the Ministerial Committee earlier referred to in this judgment appearing in Appendix "C".
Indeed their recogntion as such would have entailed an inquiry which could only be done upon proper application being made and all relevant factors examined.
It is clear that the sub judice decision was reached in furtherance of a policy which counsel for the respondents stated that it was a measure intended to protect the products of Cyprus Companies, both for purposes of employment of local labour as well as for the protection of the Cyprus currency. I shall not go into the matter. As stated in a number of cases and summed up by Triantafyllides P. in Carayiannis v. The Republic (1980) 3 C.L.R. 39 at p. 44:
"It is well settled that administrative Courts do not enter into the question as to whether or not a policy adopted by an administrative organ is a proper one, because doing so would be beyond the limits of a jurisdiction such as that conferred on this Court by means of Article 146 of our Constitution (see, in this respect, inter alia, Savvidou v. The Republic (1970) 3 C.L.R. 118, 121, 122 and Pernaros v. The Republic, (1975) 3 C.L.R 175, 184, 185)."
On the totality of the circumstances before me and adopting fully the aforementioned principle that Administrative Courts do not enter into the question as to whether or not a policy adopted by an administrative organ is a proper one, the matter being beyond the limits of the Revisional Jurisdiction, of this Court, I have come to the conclusion that the present recourse should fail as the ground upon which the sub judice decision was reached was the adoption of this policy, and is hereby dismissed but in the circumstances there will be no order as to costs.
Recourse dismissed.
No order as to costs.