The court reaffirmed that a bidder has no vested right to a contract unless a letter of acceptance is issued, emphasizing the limits of review against judgments.

JUDGMENT

Subramonium Prasad, J.

REVIEW PETITION 334/2022 & CM APPLs. 53610-11/2022

1. The instant Review Petition has been filed seeking review of the Judgment dated 01.11.2022 passed by this Court in W.P.(C) 2175/2022.

2. This Court by the Judgment under review has dismissed the writ petition which has been filed for a direction to Respondent No.1 to issue LOIA to the Petitioner in terms of the RFP bearing E-bid No. (Tender ID No.) 2021_AAI_76204_1 in respect of concession to design, fit out, finance, develop, market, operate, maintain and mange the food & beverage outlets at the Pune Airport.

3. Though the Petitioner was the highest bidder, yet the contract was not handed over to the Petitioner in view of the Circular dated 28.09.2021. The relevant portion of same reads as under:

"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 processed as per codal procedure.

- If the quote received is lesser than the original MRLF (without reduction), the same may be considered on NPV basis and if differences is within 10% with original MRLF then it can be considered or else tender may be cancelled &fresh tender be initiated post 31.12.2021."

(emphasis supplied)

4. After considering the said Circular, this Court dismissed the writ petition holding as under:

"20. From the above, it is crystal clear that the decision to cancel the Impugned Tender is purely guided by commercial prudence. The Respondent No.1 realises that owning to the pandemic, air traffic had substantially reduced, due to which it did not receive any interest for its previous tenders. However, as the situation is now substantially better, the Respondent No. 1 rightly expects more lucrative offers. The Respondent No.1 is simply trying to maximise profits and provide better food and beverage services at the Raipur airport. These considerations cannot be termed as arbitrary or capricious.

21. Furthermore, the Respondent No. 1 did not issue a letter of acceptance in favour of the Petitioner. The dictum of U.P. Avas Evam Vikas Parishad (Supra), which lays down that if a letter/order accepting the bid has not been issued, the highest bidder has no vested right in the tendering process, would apply squarely to the instant case.

22. As has been laid down in a catena of cases, the only right of a bidder is that to be treated equally. In the considered opinion of this Court, the Respondent No. 1's decision does not violate this right of the Petitioner. Further, as stated, the decision of the Respondent No. 1 is not actuated by bias and is neither arbitrary nor capricious. On the contrary, the Respondent No. 1 has simply acted as any prudent businessperson should be expected to. As the tender is within the realm of commercial and contractual decisions of the State, commercial violability and maximization are considerations of a paramount nature and cannot be dispensed with. It is needless to sa