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IN THE HIGH COURT OF DELHI AT NEW DELHI
Satish Chandra Sharma, Subramonium Prasad, JJ.
Lamba Buildcon Pvt. Ltd. & Anr. – Appellants
Versus
Union of India & Anr. – Respondents
W.P.(C) 8031 of 2023 & CM APPLs. 30861-62 of 2023
Decided On : 03-07-2023
TENDER - Construction of India-Mongolia Friendship Secondary School (IMFS) - WAP/INFRA/MEA/IMFS/02-01 - The court discussed the amendments made in the tender document through corrigendum No.5 and No.6, the communication of the amendments to the bidders, and the legal principles related to interference in tender matters by the Courts.
Fact of the Case:
The Petitioners participated in a tender for the construction of a school in Mongolia. They submitted their bids before the deadline, but the tender document was later amended through corrigendum No.6. The Petitioners sought a direction to consider their bid in line with the pre-amended terms or to permit them to re-submit the bid in accordance with the amended terms.
Finding of the Court:
The Court found that the amendments to the tender document were communicated to the bidders through email and SMS, and the failure of the Petitioners to respond to the communication cannot be a ground to permit them to bid again or to strike down the entire tender process. The Court dismissed the petition, stating that it did not find any infirmity in the tender process.
Issues: The issues revolved around the communication of amendments to the tender document, the Petitioners' oversight in responding to the amendments, and the legal principles related to interference in tender matters by the Courts.
Ratio Decidendi: The Court cited legal principles from various judgments, emphasizing that interference in tender matters by the Courts should be limited to preventing arbitrariness, irrationality, unreasonableness, bias, and mala fides. It highlighted that the power of judicial review should not be used to protect private interest at the cost of public interest, and courts should exercise restraint in contractual or commercial matters.
Final Decision: The petition was dismissed, and the Court found no infirmity in the tender process.
JUDGMENT
1. The Government of India issued a tender bearing No.WAP/INFRA/MEA/IMFS/02-01 for selection of a contractor for construction of "India-Mongolia Friendship Secondary School (IMFS)" at Ulaanbaatar-Mongolia. The last date for submission of the bids for the tender was 27.03.2023 which was later extended to 09.04.2023 and then to 20.04.2023 and further extended to 02.05.2023 with the same terms and conditions.
2. The Petitioners prepared their bids in accordance with the requirement of the tender and submitted along with the requisite fee and bank guarantee on 02.05.2023 at 02:34 PM. It is stated that on the same day i.e., 02.05.2023, the last date for submission of the bids was extended to 12.05.2023 by issuing a corrigendum No.5 and also there was an amendment made in the tender by issuing a corrigendum No.6. The original clause and the amended clause of the tender have been given by the Petitioner in the Petition in a tabular form which reads as under:
| CORRIGENDUM NO.6 | ||||
| Sr. No. | Section | Ref. Clause | Original Clause | Added/Amended Clause |
| 1. | GENERAL-SUBMISSION OF BIDS | Wherever Applicable | To Mr. Deepak Lakhanpal Chief Engineer Level 1 WAPCOS Limited | To R> Joint Secretary (DPA-III), Ministry of External Affairs (MEA), Govt. of India, Janpath, Jawaharlal Nehru Bhawan, 23-D, Janpath, New Delhi-110001 Fax: +91-11-49015352, Email: jsdpa3@mea.gov.in Note: This shall be applicable elsewhere in the document. |
| 2. | Invitation for Bids | Invitation for Bids | 2. WAPCOS Limited (A Govt. of India Undertaking), Gurugram, Haryana, India on behalf of Ministry of External Affairs (MEA), Govt. of India ("the Employer") invites sealed bids from eligible Bidders for the construction and completion of "India-Mongolia Friendship Secondary School" at Ulaanbaatar - Mongolia ("the Works" | 2. WAPCOS Limited (A Govt. of India Undertaking), Gurugram, Haryana, India as PMC (Project Management Consultant) on behalf of Ministry of External Affairs (MEA), Govt. of India ("the Employer") invites sealed bids from eligible Bidders for the construction and completion of "India-Mongolia Friendship Secondary School (IMFS) " at Ulaanbaatar - Mongolia ("the Works") |
It is pertinent to note that the corrigendum No.6 contains several other amendments which the Petitioner has chosen not to refer to in the petition and which are not relevant for the adjudication of the present disputes.
3. The Corrigendum Nos. 5 and 6 were issued by the Respondent No. 2 on 02.05.2023 i.e., on the date of deadline of submission of the technical bid. It is stated that the Petitioners were not informed about the corrigendum and the amendments made in the tender.
4. It is stated that on 19.05.2023, the Petitioners made a representation to the Respondents to consider the technical bid submitted in line with the pre-amended terms. Since no response was received from the Respondents, the Petitioners have filed the instant writ petition before this Court for a direction to the Respondents to consider the technical bid submitted by the Petitioners in terms of the pre-amended Tender Bidding Document or in the alternative for a direction to the Respondents to permit the Petitioners to re-submit the technical bid in accordance with the amended terms of submission as per the Corrigendum No. 6 dated 02.05.2023.
5. Since the Respondents were present in the Court on advance notice, no formal notice was issued to the Respondents.
6. Learned Counsel appearing for the Petitioners submits that it was incumbent upon the Respondents to inform each of the bidders about the amendment made in the tender. He draws attention of this Court towards a Clause 8.2 of the tender document which states that any addendum issued to the tender document shall be communicated in writing to all who have obtained the bidding document from the employer. He submits that the Petitioners had prepared the relevant documents, demand draft and the bank guarantee in favour of the Respondent No.2 in terms of the bid document and since the Petitioners were
The main legal point established in the judgment is that the Courts should exercise restraint in interfering with tender matters, and their intervention should be limited to preventing arbitrariness,....
The powers of the Writ Court under Article 226 of the Constitution of India are not to carry out the process of re-valuation of the marks granted by experts after considering various technical aspect....
Judicial review in tender matters is limited to assessing arbitrariness, irrationality, or mala fides; decisions should reflect fair competition and not accommodate late submissions of corrected bids....
Limited scope of interference in tender processes and the authority's discretion to modify tender terms for efficiency and public interest.
The court emphasized the need for judicial restraint in interfering with tender processes, especially in matters involving technical issues, and highlighted the limitations of the court's expertise i....
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