HONOURABLE MR.JUSTICE K.A.PUJ)

1. The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the decision of the respondents to reject the bid submitted by the petitioner. The petitioner has also prayed for the direction to the respondents to consider the bid submitted by the petitioner and to permit the petitioner to participate in the bidding process.

2. This Court has issued notice on 18.01.2011 and observed that any finalization of bid for contract in respect of Package 8 of the Tender in question shall, in the meantime, be subject to the order of this Court. This Court has passed further order on 27.01.2011 granting ad-interim relief to the effect that the respondents shall not finalize the bids for the contract in respect of Package 8 of the tender in question, till the next date of hearing. The said ad-interim relief is extended from time to time.

3. It is the case of the petitioner that as a part of its initiative to develop select State Highways in Gujarat with private sector participation on a Design, Build, Finance, Operate and Transfer Basis (DBFOT Basis) Annuity Basis, the respondents published tender notices in various newspapers and also on its (N) procurement Website on 04.09.2010 and 18.09.2010. The parties interested were informed about the 8 different packages being taken up for development with private sector participation and those interested in participating were invited to obtain details of the packages and the Request For Proposal (RFP). The petitioner offered its bid in relation to Package No.8 being 108.4 Kms. stretch of Nadiad – Madhuda – Kathalal – Kapadvanj – Bayad – Modasa stretch of State Highway.

4. The RFP prescribed several terms and conditions. The bidding process involved submission of “key submissions and bid capacity submissions and Financial bid”. The RFP prescribes the dates by which the documents were to be submitted and also prescribe the method of submission of the documents. The bidders were required to submit e-tender by 19.11.2010 and were also required to submit a hard copy of the tender by 26.11.2010. This submission of e-tender was by uploading the duly filled tender along with the requisite documents on the (N) procurement Website of the respondents. The submission of the hard copy was to be by forwarding the envelope containing the bid and the relevant documents to the respondent No.3. After the RFP was issued, the respondents issued five different addendums. The date of submission was extended. Moreover, substantial amendments were made to the various terms and conditions having material bearing on the technical and the financial bids to be submitted.

5. On 08.12.2010 i.e. day prior to the date of the submission of the e-tender, last addendum was issued. On 09.12.2010, the petitioner successfully uploaded the e-tender and thus submitted their technical as well as financial bid. The modified Clause 2.11.7 obliged the bidders to submit the hard copy through Registered Post Acknowledgment Due only. The petitioner after submitting the E-bid on 09.12.2010 inadvertently sent a personal messenger with the envelope to the office of the respondent No.3 on 17.12.2010. However, 17.12.2010 was a public holiday (Bakri Id), but the Tender Clerk was present at the office. The envelope was, however, not received by the Tender Clerk who advised the personal messenger to deliver it on 18.12.2010. On 18.12.2010, the envelope was delivered to the office of respondent No.3. The envelope was received by the office of the respondent No.3 without any demur or protest. Had the hard copy not been accepted as it was hand delivered, the petitioner could have dispatched the same by RPAD. The respondent No.3 also sent e-mail to the petitioner on 18.12.2010 inviting the petitioner for the opening of the tenders on 20.12.2010. Shri C. P. Chaturvedi, General Manager (Projects) of the petitioner Company attended the office of the respo