Courts may mitigate penalties for inadvertent bidding errors, emphasizing fairness in tender processes.

JUDGMENT :

TUSHAR RAO GEDELA, J.

1. Present petition has been filed under Article 226 of the Constitution of India, 1950, seeking a direction to quash or set aside any decision/actions of the respondent no.1/National Highways Authority of India (hereinafter referred to as “NHAI”) of declaring the petitioner’s bid as non-responsive or disqualified and/or any action for forfeiture of its bid security, including the direction dated 27.03.2025. The petitioner further seeks a direction to respondent no.2/New India Insurance Company Ltd. restraining it from taking any action in furtherance thereof, including but not limited to complying with any direction of NHAI regarding encashment of the bid security. The petitioner also seeks to reverse any wrongful action or decision taken against it pursuant to any declaration of the petitioner’s bid as non-responsive or disqualified and/or any action for forfeiture of its bid security.

BRIEF FACTS:-

2. It is the case of the petitioner that the NHAI floated a Request for Proposal (hereinafter referred to as “RFP”) dated 26.09.2024 for the development, operation, maintenance and construction of a new four lane Sambalpur Bypass from km 0.000 to km 35.384 under NH(O) on Hybrid Annuity Mode in the State of Odisha, through Public Private Partnership, on a Design, Build, Operate and Transfer basis with an estimated cost of Rs.1086.73 Crores. The RFP required the bidder to pay Rs.1,10,000/- towards the cost of the RFP process and to furnish a bid security of Rs.10.87 Crores, refundable to all unsuccessful bidders.

3. The petitioner states that it submitted its bid on 04.03.2025. However, due to an error in the bidding system, the bid amount was recorded as Rs.1220,00,00,000/- in figures, but in words as “One Thousand Two Hundred and Twenty only” and the word ‘crore’ was missed out due to a minor typographical mistake.

4. The case of the petitioner is that the financial bids were opened on 25.03.2025 and the document shared on NHAI’s online portal reflected that the lowest bid quoted was Rs.880,38,00,000/-, while the petitioner’s bid was Rs.1220,00,00,000/-. However, in the same document, the bid amount in words appeared as “one thousand two hundred and twenty only.” On 26.03.2025, the petitioner immediately wrote a letter to the NHAI clarifying that the bid amount was Rs.1220 Crores and not Rs.1220/- and explaining that there was no provision to correct the error in the system. The petitioner requested that the bid amount be considered as Rs.1220 Crores. A further representation reiterating the same was sent on 27.03.2025.

5. The petitioner states that upon learning of NHAI’s actions seeking forfeiture of its bid security on 27.03.2025 and intimating the respondent no.2 to invoke the same on 29.03.2025, the petitioner filed the present petition.

ANALYSIS & CONCLUSIONS:-

6. Having heard Mr. Sandeep Sethi, learned senior counsel for the petitioner and Mr. Bishnoi, learned counsel for the NHAI and having regard to the various clauses of the tender documents on record, what we find is that the only controversy in the present writ petition revolves around the question as to whether the mistake or error committed by the petitioner in submitting the bid amount, particularly in words, would be classified as “bonafide” or not. And as to whether on account of such “error”, NHAI can invoke clause 2.20.7(a) of RFP to forfeit Rs.54,35,000/- (5%) out of the bid security amount of Rs.10.87 crores.

7. Undoubtedly, the petitioner at the time of submitting its bid, while entering the amount in figures had quoted “Rs.1220,00,00,000/-” in the first box, whereas while entering the amount in words, had quoted “Rupees One Thousand Two Hundred Twenty only” in the second box and inadvertently omitted the word “crores”. This error or a mistake was committed in two documents. It is this error or mistake which is the subject matter of our consid