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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Ravi Ranjan, Sujit Narayan Prasad, JJ.
M/s Dev Prabha Construction Pvt. Ltd. - Appellant
Versus
The Bharat Coking Coal Limited & Ors. - Respondent
L.P.A. No.94 of 2021
Decided On : 09-06-2021
TENDER - CANCELLATION - JUDICIAL REVIEW - SCOPE - Wednesbury principle of unreasonableness - APPLICABILITY - TENDER PROCESS - REVOCATION - CIRCUMSTANCES - ERROR IN ONLINE EVALUATION - TECHNICAL ERROR IN SYSTEM - CANCELLATION OF TENDER - GROUNDS - TECHNICAL ERROR - DECISION-MAKING PROCESS - JUDICIAL REVIEW - SCOPE - MALA FIDE - ALLEGATION - SPECIFICITY - IMPLEADMENT OF PERSON - NECESSITY.
Fact of the Case:
The appellant, a bidder in a tender process for transportation of coal, challenged the cancellation of the tender by the respondent BCCL. The appellant contended that the cancellation was illegal as it should have been revoked instead, in accordance with Clause 34 of the tender document. The appellant also alleged that the cancellation was mala fide and intended to benefit a third party.
Finding of the Court:
The court held that the decision to cancel the tender was not unreasonable or arbitrary, and that the respondent BCCL had acted within its powers under Clause 35 of the tender document. The court also held that the appellant's allegation of mala fide was not specific and that the third party had not been impleaded as a party to the proceedings. Therefore, the court dismissed the appeal.
Issues: 1. Whether the cancellation of the tender was illegal as it should have been revoked instead, in accordance with Clause 34 of the tender document? 2. Whether the cancellation was mala fide and intended to benefit a third party?
Ratio Decidendi: 1. The court held that the decision to cancel the tender was not unreasonable or arbitrary, and that the respondent BCCL had acted within its powers under Clause 35 of the tender document. The court noted that Clause 34 of the tender document provided for revocation of the tender process in certain circumstances, including error in online evaluation or technical error in the system. However, the court found that the circumstances in the present case did not fall within the scope of Clause 34, as the error in the online evaluation was not due to a mistake by the evaluator or a technical error in the system. The court also noted that Clause 35 of the tender document provided for cancellation of the tender in the event of any error in the tender process, and that the respondent BCCL had acted in accordance with this provision. 2. The court held that the appellant's allegation of mala fide was not specific and that the third party had not been impleaded as a party to the proceedings. The court noted that the appellant had not provided any evidence to support its allegation of mala fide, and that the third party had not been given an opportunity to respond to the allegation. The court also noted that the appellant had not impleaded the third party as a party to the proceedings, which was necessary in order to prove the allegation of mala fide.
Final Decision: The court dismissed the appeal.
JUDGMENT :
With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
2. The instant intra-Court appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 18.02.2021 passed by learned Single Judge of this Court in W.P.(C) No. 1757 of 2020 whereby and whereunder the writ court has declined to interfere with the tender cancellation order as contained under Reference No. BCCL/CMC/F-e-NIT /Coal/Tptn38/Bastacolla/2020 dated 17.06.2020 whereby the Notice Inviting Tender under Reference No.BCCL/CMC/F-e-NIT/Coal/Tptn38/Bastacolla/2020/59 dated 28.01.2020 has been cancelled.
3. The brief facts of the case which need to be enumerated herein, read as under :-
Altogether, five bidders including the writ petitioner participated in the said tender process and the bid of one of the bidders, namely, Dhansar Engineering Co. Pvt. Ltd. was declared as rejected in the technical evaluation in view of the conditions laid down in clause 9 of General Terms and Conditions of the NIT having quoted the highest value.
The tender summary report containing the technical bid opening summary and technical evaluation summary details were uploaded by the respondents on 21.02.2020 at e-procurement system of Coal India Limited (CIL). The writ petitioner as well as three other bidders qualified in the technical evaluation of the bids which was informed through e-mail communication dated 21.02.2020 and called for e-auction to be started from 01:00 PM on 21.02.2020. The price bid of all the bidders were more than 10% of the estimated value of the work (Rs.153,36,29,906.00) and thus as per the terms and conditions of the NIT, the respondents fixed the auction starting price at Rs.168,69,92,897/- and the Reverse Auction Process (in short RAP) was started. During the Reverse Auction Process, only two bidders, namely, AKA Logistics Pvt. Ltd. and the writ petitioner participated and quoted their respective prices at Rs.167,89,92,897.00 and Rs.167,09,92,897.00, respectively, and thus the writ petitioner was declared as L-1.
The writ petitioner, after being declared L-1, invoked the provisions of clause 20.2 of the ITB as mentioned in the NIT and vide its letter dated 22.02.2020 offered suo moto rebate worth about 6.75% and again vide another letter dated 25.02.2020 offered suo moto rebate of further 6.22% and thereby the price quoted by the writ petitioner stood at Rs.162,90,34,128/- only against the original declared L-1 price of the writ petitioner, which was Rs.167,09,92,897/.
The award of the contract could not be issued due to imposition of nationwide lockdown with effect from 25.03.2020 and suddenly, the writ petitioner could know about the cancellation order intimating it vide reference no.BCCL/CMC/F-e-NIT/Coal/Tptn38/Bastacolla/2020 dated 17.06.2020 uploaded through the office of the respondent no.4, whereby the said authority decided to cancel the tender in question, which was notified under Ref. No.BCCL/CMC/F-e-NIT/Coal/Tptn38/Bastacolla/2020/59 dated 28.01.2020 on account of technical reasons, being aggrieved with the same, the writ petitioner approached before the writ court.
The plea was taken before the writ court on behalf of the writ petitioner that the writ petitioner having been dec
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