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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. Swaminathan, J.
Meenakshisundaram Kumararaja Proprietor of Galaxy Enterprises, Chennai - Appellant
Vs.
The Superintending Engineer, Highways Department, Madurai & Others - Respondent
WP. (MD) Nos. 4531 & 4532 of 2024 & WMP. (MD) Nos. 4371, 4372, 4375 & 4376 of 2024
Decided On : 01-03-2024
Tender Rejection - Writ Petition - Rule 4-A of the Tamil Nadu Transparency in Tenders Rules, 2000 - [Rule 4-A of the Tamil Nadu Transparency in Tenders Rules, 2000] - The court considered the legality of the rejection of tenders based on the requirement for physical submission of documents in a tender process. It highlighted the conflict between the tender notice's online-only requirement and the subsequent clause mandating physical submission, ultimately deeming the latter unenforceable. The court also referenced a previous judgment on a similar issue and emphasized the importance of adhering to statutory rules in tender processes.
Fact of the Case:
The petitioner, a Class – I contractor, participated in a tender process for providing Roller Crash Barriers in State Highways. The petitioner's tenders were rejected for not submitting hard copies of uploaded documents. The court examined the legality of the rejection.
Finding of the Court:
The court found that the requirement for physical submission conflicted with the tender notice's online-only provision, rendering the rejection arbitrary and illegal. It also noted a previous judgment on a similar issue and emphasized the importance of adhering to statutory rules in tender processes.
Issues: The main issue was whether the rejection of the petitioner's tenders for non-compliance with the physical submission requirement was legal.
Ratio Decidendi: The court held that the conflicting requirement for physical submission was unenforceable, citing the online-only provision and statutory rules. It also emphasized the importance of adhering to statutory rules in tender processes.
Final Decision: The rejection orders were set aside, and the matter was remitted to the tender inviting authority for the process to resume from the stage of technical scrutiny, treating the petitioner's tenders as eligible and considering them along with other tenderers. The writ petitions were allowed on these terms with no costs.
ORDER :
Prayer in WP (MD)No.4531 of 2024 : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records of the first respondent in Tender ID No.2024- HWAY-419796-1 dated 20.02.2024 and quash the same.
In WP (MD)No.4532 of 2024 : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records of the first respondent in Tender ID No.2024-HWAY-419896-1 dated 20.02.2024 and quash the same.
1. The writ petitioner is a Class – I contractor registered with Tamil Nadu Highways Department. The first respondent issued two tender notifications on 19.01.2024 inviting tenders for providing Roller Crash Barriers in State Highways in Kodaikanal (H) C&M Sub Divisions (MDU-177&187). The last date for bid submission was 19.02.2024 up to 03.00 P.M. The petitioner applied in response thereto. On 20.02.2024, technical evaluation was conducted. The petitioner's tenders were rejected on the ground that hard copies of the uploaded documents were not submitted. On 21.02.2024, the tender processes were finalised. The third respondent herein turned out to be the successful tenderer. Assailing the rejection of his tenders, these writ petitions were filed.
2.The learned Senior Counsel appearing for the petitioner reiterated all the contentions set out in the affidavits filed in support of these writ petitions and called upon this Court to set aside the impugned orders and grant relief as prayed for. He relied on a catena of decisions in support of his stand that this Court should ignore the condition that the tenderer must submit the uploaded documents in physical form in person.
3. The learned Additional Advocate General and the learned Senior Counsel appearing for the third respondent submitted that the petitioner having taken part in the tender process with his eyes wide open is estopped from challenging the same. They placed reliance on Clause – 5 of the tender notice dated 24.01.2024. Since the impugned orders are in consonance with the aforesaid clause which stipulated submission of original/attested technical bid documents in person, they do not warrant interference. The learned Additional Advocate General relied on the decisions reported in 2022 LiveLaw (SC) 814 (Airport Authority of India v. Centre for Aviation Policy, Safety and Research (CAPSR) & ors) and (2022) 6 SCC 127 (N.G.Projects Limited v. Vinod Kumar Jain and ors) in support of the proposition that judicial review of tender conditions is highly limited. The third respondent also filed counter affidavit and the learned Senior Counsel took me through its contents. The respondents pressed for dismissal of the writ petitions.
4. I carefully considered the rival contentions and went through the materials on record. Clause – 5 of the tender notices reads as follows:
It is beyond dispute that the petitioner failed to adhere to the above condition. The question that calls for consideration is whether on this score, the tender inviting authority was justified in showing the door to the petitioner. According to the official respondents, the petitioner failed to pass muster at the technical scrutiny stage itself.
5. Before considering the contentions of the learned Senior Counsel appearing for the petitioner, I wanted to know if the petitioner had quoted lower than the third respondent. At my instance, the financial bids offered by the petitioner were opened and it was admitted by the officials that the petitioner had quoted lower than the third respondent in both the cases. I therefore decided to examine the case on merits.
6. The first page of the tender notification in bold letters was as follows:
The conflicting requirement for physical submission in a tender process was deemed unenforceable, emphasizing the importance of adhering to statutory rules in tender processes.
Point of law: petitioner has no locus standi in the first place to challenge the tender notifications, as admittedly he has not chosen to submit his bid in response to the notification. No doubt, it ....
Tender authorities must adhere to statutory criteria and act transparently; courts will not interfere unless clear evidence of arbitrariness or malafide conduct is presented.
The court emphasized that strict compliance with tender conditions is essential and that arbitrary qualification despite disqualifications undermines the fairness required in the contracting process.
Technical bid non-responsive for missing mandatory physical affidavit; no evaluation or appeal period applies; limited judicial interference in tenders.
The court upheld the tendering authority's discretion in setting eligibility criteria, emphasizing limited judicial review focused on procedural fairness rather than the merits of the decision.
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