1. E-tendering process — failure to receive bid submission acknowledgement due to alleged failure to press 'freeze button' — challenge to bid validity and retrieval. (Para 2 , 3 )
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2018 Supreme(SC) 134
SUPREME COURT OF INDIA
RANJAN GOGOI, R. BANUMATHI, JJ.
Maharashtra Housing Development Authority – Appellant
Versus
Shapoorji Pallonji & Company Private Limited & Ors. – Respondents
Civil Appeal No. 1836 of 2018 [Arising Out of Special Leave Petition (Civil) No. 28570 of 2017]
Decided On : 12-2-2018
Important Points
IMPORTANT POINT
Permitting consideration of e-bids alleged to be filed, without acknowledgment, would amount to giving second opportunity to the bidder.
Permitting consideration of e-bids alleged to be filed, without acknowledgment, would amount to giving second opportunity to the bidder.
Subject
Tender - E-TENDERING
Headnote
Government contract – e-Tendering – Respondent failing to upload its bids by pressing freeze button – Tendering process concluded – Bids said to be uploaded could not be retrieved – High Court directing to consider respondent’s bids – Amounts to giving second opportunity – Not permissible. (Para 10)
Facts of the case:
In this case the writ petitioner claims to have filed e-tender (technical and financial bids) but could not get acknowledgement although he pressed the ‘freeze button’.
Accordingly his bids were not considered.
High Court directed consideration of the bids.
Finding of the Court:
Impugned direction is not sustainable.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether uploaded bid documents are retrievable and whether a bidder is entitled to consideration of a bid that failed to generate a submission acknowledgement. (Para 3 , 6 )
3. Technical evidence from the portal administrator outweighs private consultant opinions; failure to seek timely assistance and successful submissions by others indicate an invalid bid. (Para 8 , 9 , 10 )
4. A bid that fails to complete the mandatory submission process is invalid and cannot be granted a second opportunity for consideration. (Para 10 )
5. Appeal allowed — High Court directions to retrieve and consider the bid set aside. (Para 11 )
6. Can a bid be considered valid if the mandatory submission process was not completed?
No. If the mandatory submission process, such as pressing the freeze button, is not completed, the bid is invalid. The court held that granting a second opportunity to submit or retrieve such a bid cannot be countenanced. (Para 10 )
7. Whose technical evidence prevails when determining the retrievability of data in an e-tendering portal?
The evidence provided by the agency that developed and maintains the portal prevails over the opinions of private consultants hired by the bidder. (Para 10 )
8. Does the absence of a system-generated acknowledgement, despite other successful submissions, indicate a technical glitch or bidder error?
If other bidders successfully uploaded documents during the same period and no server problems were recorded, the absence of acknowledgement strongly indicates a bidder error rather than a technical glitch. (Para 9 , 10 )
JUDGMENT :
Ranjan Gogoi, J.
1. Leave granted.
2. The appellant – Maharashtra Housing Development Authority through its Chief Officer issued e-Tender notice inviting proposals for the work of “Technical designing, coordination and construction for rehabilitation/sale/ commercial/amenities along with construction of habitable temporary transit camps and other various works in respect of redevelopment project”. The bidders were to submit their bids in two stages i.e. technical and financial. They were required to comply with the experiences and other conditions mentioned in the Request for Qualification-cum-Request for Proposal (RFQ cum RFP) document. The last date for submission of on-line bid was fixed on 17th May, 2017 which was subsequently extended from time to time and lastly extended upto 1300 hours of 27th July, 2017.
3. According to the first respondent – writ petitioner, it had uploaded its technical and financial bid at about 1216 hours on 27th July, 2017 on the website of the appellant. The first respondent – writ petitioner claimed that though it had pressed the ‘freeze button’, it could not get an acknowledgement of the bid submitted. Thereafter, correspondences were entered into/exchanged between the first respondent and the appellant whereafter the first respondent was referred to National Informatics Centre (NIC) which had designed and maintained the e-portal on which bids were submitted. As the NIC took the view that the absence of acknowledgement of the submission of the bid by the first respondent – writ petitioner was on account of its omission to press the ‘freeze button’ and as there was no technical glitch in the system, amply demonstrated by the acknowledgements generated in favour of other bidders, the first respondent – writ petitioner was not entitled to any consideration of its otherwise defective bid. This had led to the filing of writ petition out of which this appeal has arisen wherein the High Court of Bombay by the impugned judgment dated 28th September, 2017 had issued the following directions:
“15. In the aforesaid facts and circumstances, we issue directions to the NIC to access the files containing the bid documents of the petitioners and transfer and/or make it available to respondent no.2 MHADA which would decrypt the said files and consider the bid documents of the petitioners as a “valid bid” with the assistance of the NIC and open the technical bid of the petitioners forthwith since we are conscious of the fact that the learned counsel for the MHADA had made a statement before us on 07.08.2017 that the technical evaluation of the bids is going on and in any case we do not intend to stall the project. If the petitioners bid satisfies the technical conditions, his financial bid can be considered along with the other three bidders who are already in the fray.”
4. It is the aforesaid directions that have been assailed in this appeal by the Maharashtra Housing Development Authority.
5. We have heard Shri Dushyant A. Dave, learned Senior Counsel appearing for the appellant, Shri Neeraj Kishan Kaul, learned Senior Counsel appearing for the first respondent – writ petitioner and Shri A.N.S. Nadkarni, learned ASG appearing for the NIC.
6. The matter lies within a short compass. 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.
7. To answer the first issue this Court by order dated 18th January, 2018 has directed the NIC to file an affidavit to answer the following query:
“Whether the data uploaded by the respondent - bidder – Shapoorji Pallonji & Company Private Limited, receipt of which was not acknowledged on account of his alleged failure to press
