Parties must promptly challenge tender processes to avoid losing their legal rights; delay and subsequent participation in bidding can preclude judicial relief.

JUDGMENT

Subramonium Prasad, J.

CM APPL. 52962/2022 (Exemption)

Allowed, subject to all just exceptions.

W.P.(C) 16768/2022 & CM APPL. 52960/2022

1. The instant Writ Petition has been filed by the Petitioner herein seeking quashing of tender dated 24.11.2022 issued by the National Highways Authority of India (NHAI) inviting tenders for engagement of user fee agency through e-tender, being E-Quotation No. NHAI/13013/547/CO/22-23/EQ/Bideibadkudar Toll Plaza.

2. Facts of the case reveal that the NHAI had floated a tender dated 25.07.2022 for engagement of user fee collection agency at Bideibadkudar Toll Plaza at Orissa. It is stated that the Petitioner herein had quoted Rs.16,42,500/- towards daily remittances in the said tender and was declared as the H-1 bidder. It is stated that a Letter of Acceptance (hereinafter referred to as `the LOA') dated 26.08.2022 was issued to the Petitioner and the Petitioner was engaged for a period of three months i.e., from 27.08.2022 to 27.11.2022, by the NHAI to collect user fee at the said Toll Plaza.

3. It is stated that before expiry of three months, the Respondent/NHAI floated another tender dated 19.10.2022 for the same toll plaza inviting fresh bids from eligible bidders for a period of three months. It is stated that the Petitioner herein participated in that tender as well and quoted Rs.20,12,000/- towards daily remittances. The Petitioner herein was declared as the highest bidder for the said tender as well and was awarded the tender vide LOA dated 02.11.2022 engaging the Petitioner for a period of three months, i.e. from 10.11.2022 to 10.02.2023. It is stated that vide contract dated 09.11.2022, the Petitioner and Respondent herein entered into a contract. Relevant portion of the contract reads as under:

"2. PERIOD OF CONTRACT:

(i) "The Contract shall be for a period of three months beginning on 10/11/2022, from 10/11/2022 (08:00:00 hrs.) to 10/02/2023 (07:59:59 hrs.), (hereinafter referred to as "three months").

OR

till the plaza is handed over to the other collection agency(OMT Concessionaire/BOTConccssionaire/ToT Contrnctor/4 year Tolling Contractor etc.) as per directions issued by NHAI, whichever is earlier. However, in case of certain stretches going for BOT/OMT/TOT/Four Year Tolling Contract, the Authority reserves the right to reduce the period of contract without any compensation and in such cases of early termination of contract, the total amount payable by the bidder to the Authority will be proportionately modified depending upon the period.

(ii) The period of contract shall be three months. In case the Authority is not getting a bid higher than the remittance under this contract or in case of urgency, the Authority reserves the right to increase the contract period at same remittance and terms & condition under the contract upto 01 month."

4. It is stated that on 24.11.2022, i.e. before the expiry of the earlier contract, the Respondent herein floated another tender for engagement of user fee collection agency at the same toll plaza. It is stated that the Petitioner wrote letters dated 25.11.2022 and 28.11.2022 to the Respondent herein requesting it to cancel the Impugned Tender in light of the contract subsisting between the Petitioner and Respondent. It is stated that despite giving representation, the Petitioner once again participated in the tender, however, when the bids were opened on 01.12.2022, the Petitioner was declared as H-4 and one Sashikant Jena who had placed a bid for Rs.25,92,486/- towards daily remittances was declared as H-1 bidder. The Petitioner has, thereafter, filed the instant Writ Petition seeking the following reliefs:

"(i) issue an approp