Tender – e-Tender – Appellant-Maharashtra Housing Development Authority (MHADA) issued e-Tender notice inviting proposals for work of “Technical designing, coordination and construction....and other various works in respect of redevelopment project” – First respondent-writ petitioner case that it had uploaded its technical and financial bid on the website of the appellant and though it had pressed the ‘freeze button’, it could not get an acknowledgement of the bid submitted – National Informatics Centre (NIC) took the view that there was no technical glitch in the system and in absence of acknowledgement of the submission of the bid by the first respondent, it was not entitled to any consideration of its defective bid – Writ Petition – High Court directed NIC to access the files of the first respondent and make it available to MHADA, which would decrypt the said files and consider the bid documents as a “valid bid” – On appeal, held: Directions issued by the High Court incorrect – NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with MHADA is not feasible or possible – That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freeze button’; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid – Directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.
Allowing the appeal, the Court
HELD: 1. The first issue that arises for a decision is whether the bid document(s) uploaded by the first respondent – writ petitioner can be retrieved or is irretrievably lost. The second issue is - assuming the bid document(s) submitted by the first respondent is retrievable, whether the first respondent would be entitled to a consideration of the bids submitted by it on merits as has been directed by the High Court. [Para 6][264F-G]
2. In the counter affidavit filed by the NIC it has been stated that the bid uploaded by the first respondent was invalid as the representative(s) of the said respondent did not press the ‘freeze button’ which alone would have completed the bid process. In this regard, the NIC has further stated that there was no problem in the server during the relevant time period and as many as 427 bid documents (pertaining to other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e. 27th July, 2017. The NIC in its affidavit has further stated that if the first respondent had uploaded the documents at 1216 hours on 27th July, 2017 and it had not received the bid submission acknowledgement it still had 44 minutes to contact the NIC for help which help was not sought. In this regard, the NIC has further stated that the first respondent – bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it was familiar with the entire process. [Para 9][265-F-H]
3. The NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freeze button’; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced. [Para 10][266-A-D] SHAPOORJI PALLONJI & CO. PVT. LTD.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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