The judgment emphasizes the limited scope for judicial interference in tender matters, highlighting the essential condition of valid uploading of bids in e-tendering and considering the public interest in reaching its decision.

JUDGMENT :

Avinash G. Gharote, J.

Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties finally with their consent.

1. The present petition has been filed by claiming a relief of issuance of a writ of mandamus or other appropriate writ, directing the respondents to accept submission of bid of petitioner physically for tender process of proposed (RFP) construction and widening of existing Beed bypass road, part of Aurangabad-Jalna road, new Aurangabad city, including service road and VUP’s, Taluka and District Aurangabad, in pursuance to notice for Hybrid Annuity Mode (HAM) (online) Tender, vide E-Tender Notice No.5/2019-2020 or in the alternative to set aside the tender process being contrary to law and more particularly the Government Resolution dated 27.09.2018.

2. The petitioner is a joint venture bidder. The respondents vide publication dated 27.08.2019, issued a notice inviting tender for the above work. The petitioner claims that being duly qualified to bid in the tender process, it has paid the tender fees, downloaded the tender form and participated in the pre-bid process, procured bank guarantee in the name of J.V. from Bank of Maharashtra, started uploading documents, which were required as per the RFP.

3. It is further submitted, that the online submission of the tender involves the following stages :

(i) procurement of all the necessary documents and scanning.

(ii) uploading of the documents on the described portal with due verification of digital signature.

(iii) submission of hash i.e. finger print verification and click of submission of bid button.

4. The petitioner submits, that except for the hash and submission of bid button, it has submitted all the other documents and the process was completed, however due to error i.e. problem in the server maintained by the respondents, the portal service was not available after approximately 12.00 p.m. due to which an error message was received, which was intimated to the respondents by e-mail stating that due to “500-internal server error” the bid could not be submitted with a further request for extension of time for submission of bid due to server failure.

5. It is submitted neither there was response to the request nor any extension was granted. When the bid was tried to be physically tendered, the same was not accepted, being aggrieved by which the present petition has been filed.

6. It is the contention of the petitioner, that the time limit for uploading of the documents, was upto 01.00 p.m. on 16.09.2019, however, due to internal server error no.500 the hash verification of the petitioner could not be completed, and since the portal was unavailable till the last time limit of 1.00 p.m. on 16.09.2019, the petitioner therefore, relying upon the principle of “Lex Non Cogit Ad Impossibilia”, i.e. a person cannot be expected to perform an impossible act, contends that as the fault was on the part of the server maintained by the respondents, the petitioner had been denied an opportunity to compete for the work, to which it was otherwise eligible. It was, therefore, submitted, that since the fault lay with the respondents, it was necessary to extend the time or accept the bid in the physical form. Refusal of the respondents to do so, was therefore illegal, and resulted in denying the rights of the petitioner, in participating in the tender process, which was unsustainable in law.

7. Relying upon the Government Resolution dated 27.09.2018, it is submitted that for the works of the value of more than rupees hundred crores, it was mandatory to (a) publish the notice, in newspapers having nationwide circulation and (b) such publication was to be at least 45 days prior to submission of the bids. It is contended that in the instant case, the notice was not published in newspapers having nationwide circulation and it was published on 27.08.2019 and the last date for submission of the bid was 16.09.2019 i.e. less than 19 days, resultantly the mandate of the Govern