The highest bidder in a tender process does not have a vested right to award, as cancellation must align with commercial prudence and is permissible under administrative discretion.

JUDGMENT

Subramonium Prasad, J.

1. The instant Writ Petition has been filed by the Petitioner against the inaction of the Airport Authority of India ("Respondent No. 1") in issuing the tender for concession to Design, Fit-Out, Finance, Develop, Market, Operate, Maintain and Manage the Food & Beverage Outlets at Pune Airport, Pune ("Impugned Tender") in favour of the Petitioner. This Writ Petition has been filed with the following prayers:

"a. Pass a Writ of Mandamus or any other writ, order or direction in the nature thereof directing the Respondent No. I to issue LOIA to the Petitioner in terms of the RFP bearing E-bid No.(Tender ID No.) 202l_AAI_76204_1 in respect of Concession to Design, Fit-Out, Finance, Develop, Market, Operate, Maintain and Manage the Food & Beverage Outlets at Pune Airport, Pune" and handover possession of area earmarked for the said concession to the petitioner in terms of the RFP bearing E-bid No. (Tender ID No.)2021_AAI_76204_1;

b. Pass a Writ of Certiorari or any other Writ, Order or direction in the nature thereof quashing/setting aside Commercial Circular No. 42/2021 to the extent it is sought to be applied to Tenders/RFP already floated by Respondent No. I wherein the technical bids and financial bids have already been opened;

c. Pass a Writ of Prohibition or any other writ, order or direction in the nature thereof prohibiting the Respondent No. I from cancelling the tender process in terms of E-bid No. (Tender ID No.): 2021_AAI_76204_1 for "Concession to Design, Fit Out, Finance, Develop, Market, Operate, Maintain and Manage the Food & Beverage Outlets at Pune Airport, Pune" or issuing a fresh tender in respect thereof; and

d. Or in the alternative and without prejudice Pass a Writ of Mandamus or any other Writ/order/direction, directing the Respondent No. I to call the Petitioner for negotiation as per the past practice/grant of hearing to the petitioner and award the LOIA after successful negotiation; and

e. Pass any such other or further Writ/Order/Direction that this Hon'ble Court may deem fit in the facts of the case."

2. The Petitioner has placed on record the following facts:

a. In 2021, the Respondent No. 1 issued Request for Proposal for inter alia, operating and maintaining the Food & Beverage Outlets at Pune Airport, Pune bearing requirements for minimum monthly guarantees of Rs. 89,49,000/- However, there were no bidders for the RFP.

b. Thereafter, the Respondent issued another RFP for inter alia, operating and maintaining the Food & Beverage Outlets at Pune Airport, Pune. This time the minimum monthly guarantee was reduced to Rs. 71,60,000/-.

c. The Petitioner submitted its technical and financial bid on 12.05.2021 for the RFP. The Petitioner's bid was found to be technically compliant.

d. The financial bid was opened on 15.06.2021, and it emerged that the Petitioner was the highest bidder, having bid a sum of Rs. 72,55,555/-

e. It is the contention of the Petitioner that the Respondent No. 1 did not award the said RFP to the Petitioner, and instead on 28.09.2021, issued a commercial circular bearing number 42/2021 laying down guidelines for commercial contracts having periodicity of three year or more.The following was laid down in the said circular:

"In such a scenario, if the quote received is more than the MRLF, the same may be processed as per codal procedure. In case of NIL response in such tender, subsequent action for reduction in MRLF may not be taken and interim arrangement may be made for utilisation of space till new tender is finalised and even if reduction of MRLE has been approved by competent authority, same may be brought to earlier level after reconsideration with the approval of Competent Authority and then tender may be invited in Jan, 2022 onwards.

Where tenders have been invited on reduced MRLF:

- In such a scenario, financial bid may be opened:

- if the quote received is equal to or more than the Original MRLF (without reduction), the same may be processe