The court emphasized the importance of challenging the rejection of bid security validity and the need for the respondent to hear the petitioner before re-visiting the order.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus to consider the petitioner's representation dated 14.11.2023 and also issue a direction to the Respondent to consider the company bid for further evaluation treating it as substantially responsive bid and thereby allowing active participation of the petitioner company under Global Open Tender Two Part System in four packages (Package-1, Package-2, Package-3 and Package-4 vide Specification Nos, CE/IT&RAPDRP – 16/ 2023-24 and CE/IT&RAPDRP – 18/2023-24 respectively dated 18.08.2023.)

1. Mr.D.R.Arun Kumar, learned Standing Counsel accepts notice for the sole respondent, TANGEDCO, represented by its Managing director, Chennai and is armed with instructions to enable final disposal of this Writ Petition, even at the stage of admission.

2. The petitioner had participated in a tender for appointment of Advanced Metering Infrastructure (AMI) Service Provider for Smart Prepaid Metering and Smart System Metering for the respondent on DBFOOT basis under Revamped Distribution Sector Scheme under Global Open Tender Two Part System, issued on 18.08.2023.

3. The tender itself had been the subject matter of litigation insofar as two bidders had challenged the reverse bidding process on which the tender was based.

4. A learned single Judge of this Court had accepted the submissions of the bidders holding that reverse bidding process was not an appropriate methodology to be followed.

5. The order of the learned single Judge dated 04.01.2024 was carried in appeal by Tangedco and the First Bench of this Court, after hearing the parties, by order dated 31.01.2024, reversed the order of the learned single Judge and allowed the appeals. Clause 12.3 of the bid document requires that the bid security to be provided by the bidder had to be valid for a period of one year.

6. In the present case, Mr.Sriram, learned Senior Counsel appearing for Mr.Siva Pradosh, learned counsel on record for the petitioner would submit that there had been an error committed by the petitioner, as the petitioner had submitted its bid on 1010.2023 accompanied by bid security with validity for a period of 270 days only. This is disputed by the respondent counsel who states that the bid security had been provided only for a period of 240 days.

7. Be that as it may, the petitioner, upon noticing the error, had made a representation on 14.11.2023 seeking an opportunity to extend the validity of the bid security/bank guarantee for the entire year as provided for in the bid document. This representation has been rejected on 16.12.2023, to the effect that as the bid had not been accompanied by bid security for a period of one year, it had been considered as non-responsive.

8. The petitioner has not challenged order dated 16.12.2023. The reason offered is the litigation in the context of reverse bidding process that had been pending before the learned single Judge and before the Division Bench thereafter. Seeing as that litigation had been on an entirely different point altogether, this explanation is not, per se, valid.

9. To be noted, that even now, it is not order dated 16.12.2023 that has been challenged, and the prayer in the Writ Petition is only for a mandamus for consideration of representation dated 14.11.2023 and issuance of direction that the petitioner has submitted a substantially responsive bid.

10. Clearly, this Court cannot issue such a direction as it is for the respondent,i.e., the Tender inviting authority to decide whether the error committed by the petitioner is feasible of condonation or otherwise. I also reiterete that the proper course of action would have for the petitioner to challenge order dated 16.12.2023, which has not been done.

11. The prayer of mandamus, for consideration of representation dated 14.11.2023, is also ineffective for the reason that the representation has, in fact, been considered and rejected under order dated 16.11.2023. In thes