Point of Law : A tender process is set aside by courts only in exceptional circumstances and certainly not because the terms of the tender do not suit an individual prospective bidder.

JUDGMENT :

1. The petitioner has challenged the Notice Inviting Tender (NIT) dated August 26, 2020, floated by the respondent-authorities for deployment of maintenance teams for maintenance of Optical Fibre Cable Network. The date stipulated for seeking clarification regarding NIT was September 4, 2020 (12 noon to 2.00 pm), the bid submission was to start on September 10, 2020 and end on September 24, 2020 at 2.00 pm.

2. Learned counsel for the petitioner, allegedly an intending bidder, contends that although the petitioner sought for certain clarifications regarding certain terms of the tender notice by a letter dated September 3, 2020, the reply thereto, given by the respondent-authorities, did not carry any such clarification worth the name. Subsequently, the present writ petition was affirmed on September 18, 2020 and filed before the last date of submitting bids.

3. Learned counsel for the petitioner argues that the petitioner is entitled to challenge the NIT even without having participated in the tender process, since the petitioner, being a prospective bidder, has challenged the legality and constitutionality of several terms of the tender documents itself which, according to the petitioner, are unfair and illegal.

4. In further reply, the learned counsel distinguishes a judgment reported at (2020) SCC OnLine (Cal) 2213 [Subir Ghosh Vs. State of West Bengal and others], which was cited by the respondents. Counsel contends that, in the said case, the online bid submission date was April 1, 2019, but the writ petition was filed in January, 2020. In such context, it was found that a person who has not participated in the bidding process at all cannot challenge the tender conditions on any ground whatsoever.

5. However, in the present case, the petitioner has affirmed and filed the writ petition before closure of the submission of bids.

6. While seeking to distinguish another judgment cited by the respondents, reported at (2018) 8 SCC 243 [National Highways Authority of India Vs. Gwalior Jhansi Expressway Limited], learned counsel for the petitioner contends that the same is inapplicable to the facts of the present case. In the said judgment, the Apex Court held that, having failed to participate in the tender process, the respondent in that matter could not contend similar rights as bidders who had participated in the process.

7. However, in the said decision, the Supreme Court considered the fact that the validity of the tender document itself had not been challenged before any competent forum, as opposed to the present case. It is argued that the petitioner does not complain of any breach or non-fulfilment of the terms and conditions of the tender but challenges the clauses of the tender itself.

8. As far as the other unreported judgment cited by the respondents, passed in A.P.O.T. No.98 of 2021 [Madho Das Mundhra Vs. Railtel Corporation of India and another] is concerned, learned counsel for the petitioner submits that no ratio was laid down therein and the same was an order passed in connection with an interlocutory application.

9. Learned counsel submits that, on the contrary, if the petitioner had participated in the tender process and then sought to challenge the terms of the tender, the petitioner would have been barred from doing so by the principle of estoppel.

10. In support of such contention, learned counsel for the petitioner cites M/s. Opaque Infrastructure Private Limited Vs. Union of India and another, reported at MANU/DE/0964/2015, Poorvanchal Caterers & Anr. Vs. Indian Railway Catering and Tourism Corporation Limited & Ors., reported at 2009 SCC OnLine (Delhi) 1012 and the judgment of the Supreme Court rendered in Tafcon Projects (I) (P) Ltd. Vs. Union of India and others, reported at (2004) 13 SCC 788. Learned counsel submits that, as per the proposition laid down in the said judgments, a bidder having participated in a tender process cannot challenge the tender terms on the ground of vagueness subsequently.

11.