The court upheld the cancellation of a tender by BPCL, emphasizing that tender evaluations are commercial functions and judicial review should not interfere unless decisions are arbitrary or irrational.

JUDGMENT :

M.S. KARNIK, J.

1. The petitioner - Coastal Marine Construction & Engineering Limited and another is one of the six bidders who bid for the project 'Offshore Pipeline Laying Works for Mahul-Rasayani Pipeline Project of Respondent No.1 - Bharat Petroleum Corporation Ltd. ('BPCL' for short) in the first tender.

2. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India the Petitioners pray for setting aside the cancellation dated 10^th February 2025 of the tender bearing tender ID 16010 and dated 1^st April 2024; for a direction to the BPCL to proceed with opening of the price bids of technically qualified bidders and award of the aforementioned tender from where it stood before the cancellation; for an appropriate direction for setting aside the new tender bearing tender ID 20077 and dated 22^nd February 2025 issued by the BPCL for the work of the project; for a direction to adopt appropriate proceeding against Respondent No.3 - Corrtech International Ltd., Indian JV partner of Respondent No.4 and Respondent No.4 - Westfield Energy Resources Ltd., Nigeria based JV partner of Respondent No.3.

3. Mr. Bimal Rajasekhar, learned counsel appearing for the Petitioners assailing the cancellation of the tender submitted that the said decision was taken only to favour Respondent Nos.3 and 4. It is then vehemently submitted that fraudulent documents are submitted by Respondent Nos.3 and 4. There is no response from the BPCL despite the Petitioners’ pointing out by cogent evidence that the experience certificate produced by Respondent Nos.3 and 4 are fake/forged.

4. Learned counsel for the Petitioners relying on Clause 5.4.6 of the Invitation for Bids submitted that the said clause stipulates “It is Bidder’s prime responsibility to submit genuine and authentic documents. BPCL/EIL at its discretion reserves its right to verify information submitted...” Reliance is then placed on Clause 8.7 of the Invitation for Bids that “Bidders may raise disputes/complaints, if any, with the Independent External Monitor, as nominated from time to time.” It is then pointed out that Clause 11.11 of the Invitation for Bids stipulates “EIL/BPCL reserves the right to reject any/or all the Bids received or annul the Bidding process at any time at their sole discretion without assigning any reason thereof.” Learned counsel invited our attention to the following clauses in support of his submissions:-

“Annexure I to Invitation for Bids- BQC

[Pg. 63] - Clause 5(b)@ 65 relevant when comparing with the 2nd Tender - "Bidder's experience acquired as a Sub-Contractor shall not be considered for meeting Bidder Qualification Criteria (BQC)."

Clause 2.1 of the Instructions to Bidders-

"Corrupt and Fraudulent Practices - The Owner requires that Bidder/ Vendors/ Supplier observe the highest standard of ethics during the award execution of Contract. "Fraudulent Practice" means a misrepresentation of facts in order to influence the award of a Contract to the detriment of the Owner…"

Clause 2.3 of the Instructions to Bidders - "Bidder is required to furnish the complete and correct information/ documents required for evaluation of their bids. If the information/ documents forming basis of evaluation is found to be false/forged, the same shall be considered adequate ground for rejection of bids."

Clause 2.6 of the Instructions to Bidders-

"Further, such bidder/ vendor/ Supplier shall be put on Blacklist/ Holiday/ Negative List of Owner/EIL debarring them from future business with Owner/ EIL for a time period, as per the prevailing policy.”

5. Learned counsel for the Petitioners submitted that the request for four week extension of bid submission (till 30^th May 2024) made by the Petitioners was denied by BPCL on the ground that the work to be executed was urgent. It is submitted that on 29^th April 2024 was the last date of submission of bids. Petitioner No.1 was a bidder, as was the consortium comprising of Respondent Nos.3 and 4. Learned counsel submit