The cancellation of a tender process is subject to judicial review, but bidders cannot insist that their tenders should be accepted simply because they are the highest or lowest. All bidders are entitled to fair, equal, and non-discriminatory treatment. The award of a contract is a commercial transaction that must be determined based on relevant considerations. The cancellation of a tender process is justified if it is done to maintain transparency and ensure competitive bidding.

F.M. Reis, J.

Heard Shri S.N. Joshi, learned Counsel appearing for the petitioner, Mr. Gomes Pereira, learned Addl. Government Advocate appearing for the respondent No. 1 and Mr. A.D. Bhobe, learned Counsel appearing for the respondent No. 2.

2. The above Petition, inter alia, seeks for a declaration that the tender process under the second tender notice dated 20-2-2016 is bad, void ab initio and unconstitutional. It further seeks for a writ of mandamus or any other direction to the respondent No. 2 to award the tender to the petitioner for the sale of scrap material and sale of non-levy sugar under the tender process dated 20-4-2016 issued by the respondent No. 2.

3. Briefly, it is the case of the petitioner that the respondent No. 2 published a tender notice dated 20-4-2016 for the sale of scrap material, sale of brown sugar (season 2014/15 and 2015-16 – 1300 quintals, sale of non-levy sugar (season 2014-15) – 7295 quintals and the sale of ‘A’ grade molasses – 1500 metric tonnes. It is further their case that the petitioner submitted its tender process bids on 28-4-2016 within the scheduled time along with all the necessary documents together with the EMD to the tune of Rs. 2,80,000/- for all the four tenders. The price bids of all the parties including the petitioner were open and the petitioner was the successful tenderer with its highest offer for the category of sale of non-levy sugar and sale of scrap materials. But, however, despite the opening of the bids, the respondent No. 2 did not conduct the further process to award the tender. Subsequently, by a letter dated 13-5-2016, the petitioner raised the issue of awarding the tender for the sale of non-levy sugar with the respondent No. 2. But, however, the respondent No. 2 issued a second tender notice with regard to only the sale of brown sugar (2014-15 and 2015-16) and sale of non-levy sugar (season 2014-15) on 20-5-2015. It is further the contention of the petitioner that they made oral inquiries about the said second tender notice which disclosed that as regards the sale of scrap material and ‘A’ grade materials, tenders were awarded under first tender notice to the respective successful tenderers. It is further their case that the petitioner addressed another letter to the respondent No. 2 to issue the tender but with no success. Consequently, the petitioner filed the above Petition for the aforesaid reliefs.

4. The Managing Director-respondent No. 2 filed an affidavit in reply. It is the contention of the said respondent that the subject tender dated 20-4-2016 was cancelled pursuant to the decision taken by the respondent No. 2 on 13-5-2016 and a further decision to re-tender, was taken on 16-5-2016. It is further their case that the petitioner was aware about the cancellation of the tender dated 20-4-2016 on the date of his cancellation and at any rate, the petitioner is bound to be aware of the cancellation of such tender. It is further their case that the petitioner has not challenged the said cancellation in the present Petition. It is further their contention that the tender dated 20-5-2016 was issued on the date mentioned in the tender and the last date for the online submission of the tender was 1-6-2016. It is further their case that as the tender dated 20-4-2016 has been cancelled, it is submitted that the petitioner will not be entitled to raise any issue with respect to such cancellation as a second tender process has already been initiated. It is further their case that pursuant to the opening of the tender dated 20-4-2016, the respondent No. 2 noticed a discrepancy in the amount quoted in the said tender process. It is further contended that after the opening of the tender dated 20-4-2016, negotiations were held with Bhagvati Enterprises who agreed to increase the amount quoted in its bid. It is further pointed out that the tender terms itself disclosed that the Managing Director has reserved its right to accept or reject all the bids fully or pa