'The Timelines In A Tender And The Process Itself Ought Not To Be Lightly Interfered With' - Orissa High Court

Relying on the decision of the Supreme Court in Maharashtra Housing Development Authority v. Shapoorji Pallonji and Company Private Limited (2018) 3 SCC 13, the Orissa High Court, on Friday, refused to interfere in the e-auction process of Karlapat Bauxite Block, initiated by the Government of Odisha, on the plea of a bidder who claimed to have missed the deadline of the first round of the bidding process, due to technical glitches in the e-portal of MSTC. Observing that permitting the bidder to submit its bid beyond the due date would amount to giving a second chance, a bench comprising the Chief Justice Dr. S. Muralidhar and Justice B.P. Routray rejected the Writ Petition. "Here it must be noted that in a competitive bidding process, permitting one of the bidders who has missed the bus to participate, may have serious repercussions on the sanctity of the bidding process itself. It will amount to giving the Petitioner No.1 a second chance, which would give it an unfair advantage over other bidders who have taken precautions to ensure that they strictly adhere to the online bidding process."Factual background The Government of Odisha floated a notice inviting tender on 7th July, 2021 for e-auction of Karlapat Bauxite Block. As per the notice, the technical bid along with the Initial Price Offer had to be submitted on the website of MSTC, an e-portal for the tender. The bidders were also required to submit the technical bid with originals of the relevant documents in the office of the Director of Mines, Bhubaneswar. The deadline for the first round of the two-round bidding process was "on or prior to 15:00 hours (IST) on Tuesday, 24th August, 2021" and the tender notice specified: "1.12. Bidder shall be responsible for any problem at the bidder‟s end like failure of electricity, loss of Internet connection, any trouble with bidder‟s computer etc. which may cause inconvenience or prevent the bidder from bidding in e-auction." Mythri Infrastructure and Mining India Pvt. Ltd. (Petitioner), which is engaged in civil constructions and mining operations, extraction and transportation of major minerals submitted the bid and the documents physically on 24rd August, 2021. On 24th August, 2021 it was unable to complete the process of online submission, due to some glitch on the MSTC portal. The process was repeated by Mythri a number of times, but in vain. On missing the deadline, it sent a representation to the Opposite parties requesting them to permit it to participate in the tender process. MSTC responded stating that there was no glitch, since every minute they were receiving bids from the other bidders. Moreover, it stated that Mythri did not raise any complaint at the relevant time on 24th August. Contentions raised by Mythri Senior Advocate, Mr. Ramesh Singh, appearing on behalf of Mythri, argued that the failure to submit the bid was beyond their control. The repeated attempts reflected the bonafides of Mythri. He also submitted that no prejudice would be caused to the other bidders since their bids were not in the public domain. Contentions raised by MSTC, intervenor and State Senior Advocate, Mr. Gautam Misra appearing for MSTC averred that given the cautionary advice in the tender notice Mythri should not have waited for the last minute to upload the IPO. He urged there was no technical glitch. It was pointed out that Mythri had approached MSTC three days after the deadline. Senior Advocate, Pinaki Mishra, appearing on behalf of the intervenor, submitted that the sanctity of the tender process would be harmed if Mythri is given a second chance. Additional Government Advocate, Mr. Muduli, supporting the submissions of MSTC mentioned that 122 bidders had successfully submitted their bids and only Mythri failed to do so. Findings of the Court On perusal of the logs of MSTC, the Court noted that the same made it evident that none of the other bidders faced any difficulty in uploading the technical bid as well as the IPOs. Though Mythri's logs indicated a glitch, it could not be conclusively established to be a glitch which is not attributable to it (Mythri), especially in view of the tender notice which clearly stated that no glitch at the bidder's end would be entertained by the State. The Court noted that in similar circumstances in Shapoorji Pallonji (supra), the Supreme Court disapproved of the High Court interfering and permitting such a bidder to enter the tender process. Relying on the aforesaid judgment the Court rejected the plea of Mythri to be allowed to participate in the second round of bidding. Citing a catena of judgments the Court reiterated that a writ Court in matters of such nature have limited scope of judicial review. Placing reliance on Uflex Ltd. v. Government of Tamil Nadu 2021 SCC OnLine SC 738 it was was further emphasised by the Court : "The timelines in a tender and the ...

'The Timelines In A Tender And The Process Itself Ought Not To Be Lightly Interfered With' - Orissa High Court

Sohini Chowdhury

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