The cancellation of the tender and the invitation of a fresh tender was justified due to the anomaly and confusion in the tender document, supported by the legal provisions of The Railways Act, 1989 and The Indian Contract Act, 1872.

SANJEEV SACHDEVA, J

1. The petitioner has filed the present petition seeking recall of tender issued in February, 2016 (hereinafter referred to as “the February tender”) and quashing of the fresh tender issued in April, 2016 (hereinafter referred to as “the April tender”). Further, a direction has been sought for considering the petitioner for award of the contract in terms of the February tender.

2. The respondent had invited an E-tender for construction of Traction Alternator Factory at Vidisha, Madhya Pradesh PKG-III in February, 2016. The tender was a two bid tender and required the bidders to submit a technical bid and a financial bid. As per the petitioner, the financial bids were opened on 30.03.2016 and the petitioner was found to be the lowest bidder.

3. It is contended that the petitioner wrote several letters to the respondent to award the contract to the petitioner since the petitioner was L-1. It is contended that the petitioner apprehended that the respondent would declare L-2 as L-1 by altering the numerical figure given in the financial bids. It is contended that on 14.04.2016 the petitioner learnt that the respondent had recalled the February tender and issued the April tender.

4. The contention of the petitioner is that since the tender was an E-tender, the financial bid was to be scrutinized automatically by the computer without any human intervention and when the financial bids were scrutinized by the computer, the petitioner was found to be L-1. It is submitted that the Tender Evaluation Committee altered the financial bids of the parties in respect of Bill of Quantity Item No. 63 and re-worked the financial bids of the other three bidders and accordingly the financial bid of the L-2 bidder was reduced below the bid of the Petitioner. It is contended that since the tender was an e-bid, there could not be any alteration/adjustment of the financial bids of the parties.

5. It is contended that the rates quoted were required to be filled up by the bidders in an Excel-Sheet against each item of the Bill of Quantities (BOQ). The respondent provided the Excel-Sheet and the same was to be downloaded alongwith the tender. It is contended that in respect of BOQ Item No. 63, the bidders were expected to give a credit to the respondent for the quantity of stone made available to the bidders. The rate quoted against item No. 63 was to be deducted from the total financial quote, as it was an amount the bidders were expected to pay to the respondent for the stones supplied.

6. It is contended that when rate was filled in the Excel-Sheet against Item No. 63, the system, instead of deducting the amount from the total financial bid, added the same thereby increasing the total. The petitioner on noticing this entered the amount with a minus (-) sign upon which a proper credit was provided to the respondent and the correct financial bid amount was reflected in the bid document.

7. It is contended that when the bids were opened, it transpired that out of the four bidders, only the petitioner had filled up the rate against BOQ Item no 63 with a minus (-) sign and the other three bidders had not entered any sign. It is thus contended that the bid of the petitioner was found to be the lowest by the computer and accordingly, the tender should have been awarded to the petitioner and the same could not have been cancelled.

8. Per contra, the respondents in their counter affidavit have contended that in terms of the bids invited, the structure of “BOQ” was such that it allowed the bidders to quote for an item (Stone masonary & WBM) involving stone and the full rates including the cost of stone machining and transportation besides cost of labour, material, machine overheads and profits. In the background of the aforesaid item, th