JUDGMENT :

M.S. Ramachandra Rao, Chief Justice

Heard both sides and with the consent of both sides, this Writ petition is being disposed of.

2) The Writ petitioner is a Company incorporated under the Companies Act, 1956.

3) The Border Road Organization (2nd respondent), which is under the Ministry of Defence of the Union of India (1st respondent) had issued a notice inviting bids on 23.02.2023 for design and construction of Uni-Directional Two Lane Twin Tunnels at Shinkun La Pass of Length 4.1 km (Approximately) including Civil and Electrical/ Mechanical Work alongwith approaches connecting Darcha-Padam Highway to NHDL Specification in Himachal Pradesh and Union Territory, Ladakh through Engineering, Procurement and Construction mode.

4) The estimated cost of the work was Rs.1504.64 crores and the same was to be completed within a period of 48 months.

5) The said Notice Inviting Tender (NIT) was accompanied by a Request For Proposal which contained the terms and conditions for making the bid. The bid had to be uploaded online and comprised of a technical bid as well as a financial bid.

6) The bid due date was extended and was ultimately fixed for03.06.2023 upto 11.00 hours Indian Standard Time through Annexure P-4.

7) The technical bids were to be opened on 05.06.2023 as per the corrigendum and the date of opening of financial bids was to be published online after the declaration of the technical bids’ result.

8) In response to NIT, 10 bidders, including the petitioner participated in the tender process by submitting their respective technical and financial bids.

9) The petitioner submitted its technical as well as financial bid on 03.06.2023 before 11.00 Hrs on the e-procurement portal of the respondents. It had also furnished a bank guarantee to the respondent of Rs.15,04,64,000/-.

10) The petitioner uploaded its bid quoting Rs.1569.00, though it claims that this was on account of system error which occurred during the online uploading of the financial bid and contends that it had actually intended to quote a bid price of Rs. 1569 crores for the said work. According to the petitioner the quotation of the bid price of Rs.1569 was an inadvertent error as its actual intention was to quote Rs.1569 crores.

11) According to the petitioner this fact came to its notice only at the time of declaring the result of financial bid on 24.08.2023 by respondents.

12) On 24.08.2023, financial bids of seven bidders, including the petitioner, who were declared technically qualified were opened, and the results were also declared. The petitioner was ranked as L-1 bidder, but with the bid price of Rs.1569 only.

13) On 25.08.2023, vide Annexure P-8, the petitioner apprised the respondents that it actually had quoted Rs.1569 crores and not Rs.1569 and the said error must have crept in due to system error/server overload.

14) Vide Annexure P-9 dt.26.08.2023, respondent no. 2 wrote to the petitioner stating that as per the Evaluation Committee, the quotation of Rs.1569.00 offered by the petitioner was unreasonably low and the petitioner should furnish detailed price analysis in relation to scope of work of each item, completion schedule, allocation of risks and responsibilities, safety requirements and demonstration of its capability to complete the work, and this should be done before31.08.2023.

15) The petitioner responded to the same vide Annexure P-10 dt.30.08.2023 explaining that its intention was to quote Rs.1569 crores and not Rs.1569, that the discrepancy has crept in due to typographical error/critical technical snag and difficulty encountered while quoting the price. It was stated that computer system had not shown the complete value of work which was typed in and that web portal on the date of its uploading the bid was persistently hanging and was very slow.

It was also stated that the petitioner had not carried out any rate analysis for the price of Rs.1569, and that since the BRO’s estimated project cost itself was Rs.1504 crores, tender document cost w