Compliance with tender process rules and essential qualifications for bidders is crucial in challenging a tender process.

JUDGMENT :

Sanjib Banerjee, J.

Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 24.02.2021 passed in W.P.No.4357 of 2021.

1. The appeal is directed against an order of February 24, 2021, by which the appellant's writ petition challenging a tender process initiated by respondent TANGEDCO has been dismissed.

2. The appellant had questioned the tender process initiated by an advertisement published on January 18, 2021 for supply of 20 lakh tonnes of imported coal having a particular calorific value during the period May, 2021 to May, 2022. The last date for submission of the offers was February 23, 2021. Only on-line bids were to be made till 2 pm on such day and the e-reverse auction method was to be followed.

3. According to the appellant, the tender documents were in derogation of the Tamil Nadu Transparency in Tenders Act, 1998 and the Rules of 2000 framed thereunder. The appellant complains that the tender papers would reveal that TANGEDCO had deliberately excluded any Indian party from participating in the process. According to the appellant, even consortia could not participate as would be evident from the nature of the documents demanded.

4. The principal grounds urged by the appellant are the violation of Section 9(3) of the said Act of 1998, inasmuch as the notice inviting tender was not published in the Indian Trade Journal and that prior approval of the bid had not been obtained though the bid involved an amount well in excess over the threshold limit requiring such prior approval. The appellant insists that in terms of Section 4 of the Act of 1998, no offer could have been invited and none accepted except in accordance with the procedure specified in the said Act and the Rules made thereunder. Once it was demonstrated before the Writ Court that some provisions of the Act and the Rules had not been complied with, the Writ Court had no alternative but to quash the tender process upon annulling the same.

5. In addition, the appellant questions the propriety of the Indian suppliers being excluded. The appellant says that all that the respondent required was coal of a particular grade and it did not involve either rocket science or any involved technology for effecting supply of such grade of coal as specified in the tender documents.

6. By the judgment and order impugned dated February 24, 2021, the last date for the submission of tender has been extended by permitting the respondent to obtain the approval and to publish the notice inviting tender in the Indian Trade Journal. However, again, the appellant has a grievance in such regard as the appellant claims that the period of publication in the Indian Trade Journal should be thirty days prior to the time for receipt of the offers and the thirty-day period in this case has not been complied with. The appellant also submits that this was a matter which ought to have been planned well in advance and it will not do for the respondent to seek an exemption and abridge the time for publication or obtain expost facto approval.

7. On behalf of TANGEDCO, it is submitted that while the planning on TANGEDCO's part should have been better and all loose ends tied up before the publication was made, it is once again the pandemic and the lockdown which is used as a magic wand to ward off all objections. The excuse proffered in this case is that following the lockdown in the wake of the pandemic and the closure of several industries, TANGEDCO did not anticipate that upon the economy restarting, there would be such an increased demand that the reserve quantities of coal may not be adequate to tide over even the summer. TANGEDCO says that it has adequate coal supply to last it till the end of April or the beginning of May, but it needs a kind of a buffer of a few days and in terms of the tender documents, the prospective supplier would need sufficient time to effect the supply. Whether or not the limited supply argument is made to persuade the Court to overlook t