The main legal point established in the judgment is that the tendering authority must consider all valid and eligible bids, and challenges to the tender process should not be mala fide or against the spirit of fair competition.

JUDGMENT

Sabyasachi Bhattacharyya, J. - Ia No: CAN 1 of 2020 (Old No: CAN 4887 of 2020) is disposed of in view of the urgency involved and the matter is taken up for hearing.

2. At the outset, it may be recorded that, in compliance with this court's order dated January 20, 2021, a report was given by the concerned Section on January 29, 2021 stating that no affidavit-in-opposition and reply appears to have been filed by the advocates for the parties. However, subsequently it was detected, upon consultation with the Registrar of the Port Blair Circuit Bench of this Court, that an affidavit-in-opposition was filed in the form of a 'Report' on behalf of the respondent nos. 1 to 4. However, no affidavit-in-reply could be traced to have been filed.

3. The short contention raised by the petitioner is that the private respondent ought not to have been permitted in the second tender issued by the respondent-authorities in the matter of construction of Eastern side jetty on bored pile foundation at Kadamath Island in the Andamans.

4. It is contended by learned counsel for the petitioner that initially a tender was floated, wherein the petitioner came out as the only successful bidder. The private respondent's bid was found to be ineligible. However, subsequently the said tender was cancelled and a fresh tender floated, wherein the petitioner as well as the private respondent, along with other bidders, were held to be eligible for participation. The petitioner challenges the acceptance of the private respondent as an eligible bidder, since the scope of work in both the tenders is identical and the private respondent came out ineligible in the first tender.

5. Learned counsel for the petitioner argues that the second tender was apparently floated for the specific purpose of including the private respondent, despite the latter having failed to reach the eligibility mark in the first tender. Since the petitioner was the only successful bidder in the first tender, the second tender ought to be awarded to the petitioner as well.

6. Learned counsel appearing for the respondent-authorities argues that the private respondent successfully uploaded all requisite documents with its bid in the first tender, as well as sent physical copies of such documents by Speed Post well within time. Yet, those documents could not reach the tendering authority before the last scheduled date due to inordinate delay occasioned by the Postal Authorities. Since there was no fault on the part of the private respondent, the tender was cancelled and a fresh tender was called. In view of the pandemic situation prevailing at the relevant juncture, the ineligibility of the private respondent in the first tender was merely technical and due to no fault of the said respondent. It is further submitted that the petitioner could not have challenged the present tender process after having participated therein.

7. Learned counsel for the private respondent submits that the present challenge pertains to the first tender and has become infructuous on such tender being cancelled. Moreover, the petitioner having participated in the second tender, cannot now resile from such position and challenge the said tender.

8. Learned counsel for the petitioner, in reply, submits that the second tender was issued, upon cancellation of the first tender, during pendency of the writ petition. As such, the relief now sought by the petitioner is in aid of the writ petition and a necessary consequence thereof. Moreover, it is argued, the petitioner is not challenging the second tender in its entirety but merely challenges the acceptance of the bid of the private respondent, since the said respondent failed in the first tender, issued for the self-same work.

9. In this context, learned counsel for the petitioner relies on Sorath Builders vs. Shreejikrupa Buildcon Limited and another, (2009) 11 SCC 9 . It was held therein that the first respondent was negligent and insincere in not submitting his pre-