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2018 Supreme(Del) 1092
IN THE HIGH COURT OF DELHI AT NEW DELHI
HIMA KOHLI, PRATIBHA RANI, JJ.
IN THE MATTER OF:
L & T Hydrocarbon Engineering Ltd. - Petitioner
Versus
Oil And Natural Gas Corporation Ltd. & Anr. - Respondents
W.P.(C) 1429 of 2018 and CM APPL. 5900 of 2018 & 7205 of 2018
Decided On : 25-05-2018
For the Petitioners Mr. Harish N. Salve, Mr. Mukul Rohatgi, Dr. A.M. Singhvi and Mr. Rajiv Nayar, Senior Advocates with Mr. Rishi Agrawala, Mr. Karan Luthra and Mr. Vishnu Tallapragada, Advocates
For the Respondents:Mr. Sukumar Pattjoshi, Senior Advocate with Mr. Somesh Dube and Mr. Sandeep Mahapatra, Advocates ONGC with Mr. Shishir Agrawal, DGM (MM), I/C MM, SRM. Mr. C.A. Sundaram and Mr. Darpan Wadhwa, Senior Advocates with Mr. Arjun Syal and Mr. Shreyan Das, Advocates.
Headnote:
General Clauses Act, 1897 - Section 27 - Contract Act, 1872 - Section 4 - Information Technology Act, 2000 - Section 13 - Proposal - Acceptance - Communication, complete - Clicking the "Saved Button", the area demarcated for the petitioner in the server of the respondent No.1/ONGC had recorded two activities before the cut off time - Absence of any corresponding activity recorded in the server log of the respondent No.1/ONGC, cannot be attributed to the petitioner - Once the data was put in the course of transmission by the petitioner to the designated computer resource of the respondent No.1/ONGC - It had lost control over the data - Held, acceptance would have to be treated as complete in all respects - Petitioner had managed to beat the clock and had submitted its Techno-Commercial Bid just before the submit deadline - Petition succeeds.
General Clauses Act, 1897 - Section 27 - Contract Act, 1872 - Section 4 - Techno-Commercial Bid - Bid submission - Uploading the bidding documents - Effect of - Petitioner had submitted its Bid within the deadline - Eight attached files of the petitioner have been encrypted and "held" in the security audit logs of the respondent No.1/ONGC - It is now for the ONGC to decrypt the files - On the respondent No.1/ONGC retrieving the Bid of the petitioner, it shall be permitted to participate in bidding process along with the other bidders - Petition is allowed and disposed of on the above terms.
HIMA KOHLI, J.
1. Gone are those days when it was said that when someone does something at the “eleventh hour”, they do it at the last possible moment. In today’s day and time, when technology is advancing at lightening speed, even a fraction of a minute is akin to the “eleventh hour”. This is amply demonstrated in the present case, where the fate of the petitioner’s bid in response to a Global Tender floated by the respondent No.1/ONGC, hangs on those very fleeting seconds.
2. We may first recapitulate the facts of the case. On 24.11.2016, the respondent No.1/ONGC had issued a Notice Inviting Tender under the International Competitive Bidding Format, in respect of the “Offshore Process Platform (CPP & LQUIP) project for development of KG-DWN-98/2”. The bidding process comprised of a two bids system whereby the Techno-Commercial Bid was required to be submitted by the bidders. The Technical Bid had to be opened on the day of the Bid submission, followed by the opening of the Commercial Bid. The submission of the Bids was to be made on the “ONGC e-bidding engine at http://www.etender.ongc.co.in”.
3. The petitioner, a company involved in providing complete "EPCIC solutions” for the Offshore Oil and Gas Industry, joined hands with the respondent No.2 herein, Mc Dermott Asia Pacific Pte. Ltd. to create a consortium for participating in the NIT floated by the respondent No.1/ONGC.
4. Initially, on 31.01.2017, the respondent No.1/ONGC fixed 03.02.2017, at 14:00 hours as the date and deadline for submission of the Bids. Later on, the timeline for submission of the Bids was extended on 18 occasions, commencing on 03.03.2017 and ending on 22.1.2018. The number of days for which the respondent No.1/ONGC had extended the timeline for submission of the bids was in the range of 07 days to 32 days, as detailed in para 34 of the writ petition. A total number of 17 companies purchased the tender documents, out of which only 06 participants, (i.e., 3 bids in a consortium of 2 each) including the petitioner and the respondent No.2, its consortium partner, filed their bids.
5. The methodology for submission of the tender, as displayed on the website of the respondent No.1/ONGC comprised of the following steps:-
(i) Log on to the e-procurement website of the respondent No.1 with the allotted User ID and password.
(ii) Select the relevant document from the bidder’s system to be uploaded onto the System of the respondent No.1;
(iii) The said document is then attached to a pop-up window, and the same is uploaded onto the system of the respondent No.1 upon being digitally signed, using the digital signature of the bidder;
(iv) Upon digitally signing the document, an encrypted file is generated–suffixed with “ssig”.
(v) The said digitally signed encrypted document is then selected and saved on the portal of the Respondent No.1. The said process is repeated until all the documents sought to be uploaded are encrypted with the digital signature and saved within the Respondent’s portal.
(vi) Upon successfully being saved on the respondent No.1's portal, the document will appear on the RFx, along with the time at which the said document was successfully saved. The ‘status’ at this stage would show ‘saved’.
(vii) Upon being satisfied that the bid documents have been successfully uploaded, the Bidder then clicks the ‘Submit Button’, pursuant to which the response message comes as ‘document was successfully signed digitally’.
(viii) The ‘status’ of the Bid will then change from ‘saved’ to ‘submitted’.
6. It is the petitioner’s stand that it had prepared the Bid and commenced uploading the final bidding documents concerning the Technical Bid on to the system of the respondent No.1/ONGC on 04.2.2018, at 19:41:56 hrs and had continued uploading the documents till 23:27:34 hrs. Thereafter, the petitioner had commenced uploading further documents on the next day
