Point of Law: Power of judicial review can be invoked if approach adopted is found to be arbitrary or mala fide or if procedure adopted is meant to favour one.

JUDGMENT :

By a Notice Inviting Tender [NIT] bearing no. TK-1P25A-MP-RFQ-0034 dated 25.10.2022, the respondent no. 3, M/s Tyssenkrupp Industrial Solutions [India] Private Limited as the Engineering Procurement & Construction Management [EPCM] Consultant on behalf of the respondent no. 2, that is, M/s Numaligarh Refinery Limited [hereinafter referred to as ‘the Tendering Authority’ or ‘Tendering Authority’ or ‘the NRL’, at places, for the sake of easy reference] invited e-Bids from eligible bidders through the website : http://eprocure.gov.in/eprocure/app for execution of a contract-work :- ‘Supply of Reactor & Regenerator [RXRG] Package for PFCC Unit as per Technical Specifications for Numaligarh Refinery Limited, Assam, India’ [‘the Contract-Work’, for short]. As per the NIT, the competitive bidding process was on Open Global Tender basis under single stage two-bid system [Part–1 : Techno-Commercial Bid (Unpriced Bid) and Part–2 : Price Bid] from competent bidders with sound technical and financial capabilities fulfilling the Bidder Qualification Criteria [BQC], as stated in the Bidding Documents. As per the NIT, the time schedule for completion of the Contract-Work is thirty-two [32] months [thirty (30) months for Mechanical Completion including Pre-Commissioning and two (02) months for Commissioning] from the date of issue of the Letter of Acceptance [LoA]. Originally, the start date of submission of bid was 24.11.2022 and the last date of submission of bid was up-to 15-00 hours, 30.11.2022. During the course of the bidding process, the time-line for submission of bids was re-scheduled and the last date of submission of bid was extended up-to 07.12.2022.

2. The Bidding Documents had mentioned the Bidder Qualification Criteria [BQC] including technical experience criteria, financial experience criteria and commercial experience criteria. As regards the mode of submission, the NIT mentioned that the Bids were to be uploaded on the e-Procurement Portal : http://eprocure.gov.in/eprocure/app [also to be referred to as ‘the Portal’ or ‘e-Procurement Portal’ at places hereinafter, for easy reference] before the last date and time of submission of bids [Bid Due Date] and a bid submitted using any other mode was not to be accepted. It was further notified that the bids including supporting documents, were to be uploaded by the bidders only through the e-Procurement Portal and hardcopy of the Bidding Documents was not to be accepted. The bidders had to fill in all relevant information and to submit the Bidding Documents in complete into electronic tender on the e-Procurement Portal. Both the Techno-Commercial Bid and the Price Bid were to be submitted concurrently by signing them digitally, at the e-Procurement Portal. As per the procedure laid down in the Bidding Documents, the Techno-Commercial Bids [Part-I] received on the e-Procurement Portal were to be opened first and thereafter, the same, submitted in electronic form, were to be processed on the e-Procurement Module on the e-Procurement Portal. The Price Bids [Part-II] of e-Bid of only those bidders whose Techno-Commercial Bids were determined to be technically and commercially acceptable by the EPCM Consultant, would be opened. The bidders selected for opening of their Price Bids were to be informed about the date, time and place of Price Bid opening.

3. After opening the Techno-Commercial Bids, the Techno-Commercial Bids of the bidders were evaluated and completed on 24.12.2022. After evaluation of the Techno-Commercial Bids, the respondent NRL/EPCM Consultant found Techno-Commercial Bids of two bidders i.e. the petitioner and the respondent no. 4 responsive and it was decided to open the Price Bids submitted by the two participant bidders. The date of opening of the Price Bids was scheduled at 3-00 p.m. on 26.12.2022.

4. It is the case of the petitioner that it successfully uploaded both the Techno-Commercial Bid and the Price Bid on the e-Procurement Portal on 07.12.2022. By