Case: M/s Srishaila Constructions Pvt. Ltd. vs. Union of India and others [WPA No. 6334 of 2020; IA No: CAN 1 of 2020]
The Calcutta High Court on 2nd February 2021, dismissed the writ petition on the ground that the petitioner’s prayer is an antithesis to the very spirit of a transparent tender process and, as such, the attempt ought to be deprecated.
Facts of the case:
The petitioner has made out a prima facie case alleging the respondent-authorities having been acted in contravention of the provisions of the concerned NIT in permitting the private respondent to participate in a tender process, despite the private respondent had filed its documents after the last date stipulated for doing so, while the petitioner was successful in the technical bid. The petitioner challenges the acceptance of the private respondent as an eligible bidder since the scope of work in both the tenders is identical and the private respondent came out ineligible in the first tender.
In compliance with the court’s order dated 20th January 2021, a report was given stating that no affidavit-in-opposition and reply has been filed by the advocates for the parties. Though, subsequently, it was detected, upon consultation with the Registrar of the Port Blair Circuit Bench of this Court, that an affidavit-in-opposition was filed in the form of a ‘Report’ on behalf of the respondent nos. 1 to 4, while no affidavit-in-reply could be traced to have been filed.
Petitioner’s arguments:
The petitioner argued that the second tender was floated for the specific purpose of including the private respondent, despite the latter having failed to be eligible in the first tender. Since the petitioner was the only successful bidder in the first tender, the second tender ought to be awarded to him as well.
The petitioner pleaded that the second tender was issued, upon cancellation of the first tender, during the pendency of the writ petition. Further, it was submitted that the petitioner is not challenging the second tender in its entirety but merely challenges the acceptance of the bid of the private respondent since the said respondent failed in the first tender, issued for the self-same work.
Therefore, the petitioner contended that the private respondent ought not to have been permitted in the second tender issued by the respondent-authorities in the matter of construction of Eastern side jetty on bored pile foundation at Kadamath Island in the Andamans.
Respondent’s arguments:
The respondent-authorities argued that the private respondent successfully uploaded all requisite documents with its bid in the first tender, as well as sent physical copies of such documents by Speed Post well within time but those documents could not reach the tendering authority in time due to inordinate delay occasioned by the Postal Authorities. Given the pandemic situation prevailing at the relevant juncture, the ineligibility of the private respondent in the first tender was merely technical and due to no fault on the private respondent’s part, the tender was canceled and a fresh tender was called.
The private respondent contended that the present challenge pertains to the first tender and has become infructuous on such tender being canceled. Further, it was submitted that the petitioner could not have challenged the present tender process after having participated therein.
Court’s observations:
The Hon’ble Justice Sabyasachi Bhattacharyya observed that the online bids were submitted within time by the private respondent, though the physical documents required could not reach the tendering authorities in time due to laches on the part of the Postal services. Even without going into such question of such bona fides on the private respondent’s part in the first tender, because of the cancellation of the tender and participation of the present writ petitioner in the subsequent tender, although for the same work, the petitioner is barred by waiver and acquiescence from challenging the second tender.
Further, the tendering authority was justified in accepting all valid and eligible bids, including that of the private respondent, in the second tender. The petitioner’s prayer for the bid of the private respondent to be selectively declared ineligible, although the same met the requirements of the second Notice Inviting Tender, is unheard of and dehors the principles of law and natural justice.
The petitioner, having itself participated in the second tender, has no right or locus standi to stand in the way of such participation of the private respondent or, for that matter, of any other. an eligible candidate for consideration in the tender. Therefore, the entire scope of the challenge in the present writ petition is mala fide and designed only to suit the selfish purpose of the petitioner for eliminating fair competition.
Judgment:
The Hon’ble court dismissed the writ petition with costs of Rs.20,000/- (Rupees Twenty Thousand), to be paid by the petitioner to the private respondent within a week from the date.
Click here to view the judgment.
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