Point of Law: Article 226 of the Constitution this Court has to hold that the corrigendum relied upon by the respondent does not support their case and the decision taken by the respondent is arbitrary and runs contrary to the law which mandates that every bidder is entitled to fair and equal treatment.

ORDER :

1. This Writ Petition is filed by the petitioner questioning their disqualification as a bidder for the work of Mechanization of WQ 7 & 8 berths in the respondent Port Trust and to issue a consequential relief.

2. This Court has heard Sri P. Veera Reddy, learned senior counsel for the petitioner and Sri Raviteja Padiri, learned standing counsel for Visakhapatnam Port Trust

PETITIONER’S SUBMISSIONS:

3. Learned counsel for the petitioner submits that the petitioner is aggrieved by the action of the respondent dated 17.12.2021 and the disqualification of the petitioners bid on the sole ground that the bid was not filed “online” and was filed physically only.

4. Learned senior counsel submits that the petitioner participated in a bid for mechanization of WQ 7 and 8 berths. They had purchased the documents (RFQ) on 11.11.2021. They submitted their bid on 30.11.2021. According to the petitioner they were required to submit the bid in the physical form along with a soft copy of all the documents. The case of the petitioner is that they had physically submitted their bid complete in all respects on 30.11.2021. During the course of meeting for opening of bids, they were informed that they were disqualified on the ground that they had not uploaded their bid in the online method in a particular portal https://etenders.gov.in. Learned senior counsel for the petitioner took this Court to various clauses available in the bid documents, which according to him provided for filing of the bid manually and in the physical form only. Learned senior counsel argues that at no point of time that the petitioners were informed that they had to file a bid in the online form. Learned senior counsel drew the attention of this Court to the very notice of the invitation which stated that the documents should be submitted by hand delivery or sent by registered post etc. He also drew the attention of this Court to Clause 2.1.0 of RFQ which states that the respondent has the right to modify the RFQ terms by issuing an addendum. But as per 2.10.2 the addendum this has to be sent in writing to all the applicants. Learned counsel drew the attention of this court to Clause 2.1.3 which mandated that the application should be filed in an envelope which needed to have certain markings, sealing, seals etc. He also drew the attention of this court to Clause 2.1.3 stating that the application submitted by fax, telex or email shall be rejected. Learned senior counsel, therefore, argues that the respondent did not act bona fide or in a manner required as per law. According to him the action of the respondent is per se arbitrary and are therefore this Court must interfere at this stage only. Learned senior counsel relies upon the judgment of the Hon’ble Supreme Court of India in B.S.N.Joshi & Sons Ltd., v Nair Coal Services Ltd., (2006) 11 SCC 548 to argue that the respondent did not act as required under law and that their action is not fair and that consequently the Writ Petition is to be allowed.

5. In reply to the stand taken by the respondent that a corrigendum was issued he submits that the same was never communicated to the petitioner. It is also submitted by the learned senior counsel that at no point of time the respondent clarified that the electronic filing is mandatory. Learned senior counsel submitted that they had purchased their bids on 11.11.2021 and the alleged clarification was issued in a meeting purportedly held on 05.11.2021. Learned senior counsel submits that the petitioner did not even purchase the bid papers at that point of time and they were not informed of this so-called mandatory clause.

RESPONDENT SUBMISSIONS:

6. In reply to this, Sri Raviteja Padiri, learned standing counsel argues in line with what is stated in his counter affidavit. According to him on 05.11.2021 in the pre-application meeting held some of the bidders raised some queries, as a result of which a corrigendum was issued making online submission of the RFQ mandatory. Learned c