ORDER

Dharmadhikari, J. -- 1. With the consent of the learned counsel for the parties, the matter is heard finally.

2. By this instant petition under Article 226 of the Constitution of India, the petitioner has challenged the legality, validity and propriety of the Letter of Acceptance (LoA) dated 22.5.2024 (Annexure-P/7) issued by the respondent No.3 for the work of “Loading and Transportation of Coal by Payloaders & Tippers combination from East Purewa Seam (Surface Miner face) to Nigahi Wharfwall/Spur-2 Siding, Singrauli/Hopperof new CHP in east by Contractor’s tipping trucks including loading of coal in railway wagons at Nighai Wharf wall/Spur- 2 Siding, Singrauli for a quantity of 90.00 Lakh Tons for a period of three years (1096 days) at Nighai Project”, by which the tender has been awarded in favour of respondent No.4.

3. The brief facts of the case are that the petitioner is a proprietor ship firm carrying on the business in the name and style “Maihar Cement Pipe Industries”. The respondent no.3 floated a tender on 7.2.2024 for Loading and Transportation of Coal at Nigahi Wharf/Spur-2 Siding, Singrauli for a total quantity of Rs.90 Lacs tons for a period of three years. As per clause-25.2(B) of the Tender document, a detailed procedure has been prescribed in order to select final L-1 bidder, i.e., in case, where there are more than two lowest bidders and splitting up of work is not considered necessary. As per the aforesaid clause, it was stipulated that all the L-1 bidders are advised to submit the reduced price and final L-1 bidder may be decided on the basis of revised (reduced price) or through another mode prescribed i.e., through “Reverse Auction” amongst the L-1 bidder through Online mode.

4. The petitioner as well as the respondent No.4 submitted their respective bids through online portal i.e., Government e-market Place Online Portal (hereinafter referred to as ‘GeM Portal’). In the technical evaluation, both the petitioner and the respondent No.4 were found to be L-1 bidders and were selected amongst other bidders. Thereafter, a financial evaluation was carried out and the petitioner as well as respondent No.4 submitted their final bid and both of them quoted identical lowest price i.e., Rs.64,06,56,525.60/-. As a result, the petitioner and respondent no.4 both were ranked as L-1 bidders which is evident from the abstract of financial evaluation being uploaded on the website.

5. Learned Senior Counsel for the petitioner Shri Sanjay K. Agrawal contended that the respondent authorities, instead of adopting the mechanism as provided in clause-25.2(B) of the Tender document for selecting the final L-1 bidder, where there are more than one L-1 bidders, have adopted the procedure as laid down in clause-4(xiii)(h) of the General Terms and Conditions of the GeM Portal which provides as under :--

“(h) In case, two or more acceptable bidders are found to have quoted identical lowest bid price, Buyer has to conduct Reverse Auction for the required Goods among all technically qualified bidders in case of bids for Goods. In case of Services bids, if the multiple L-1 bidders have quoted the lowest allowed price for that service, Buyer shall place the Contract by selection of a bidder amongst the L-1 bidders through a Random Algorithm executed by GeM system.”

(Emphasis supplied)

Clause 25.2(B)(2) of the Tender Document provides for as follows:--

“2. If there are more than one lowest Bidder & splitting up of the work is not considered necessary, L-1 may be decided as under :--

All L-1 Bidders may be advised to submit the reduced price online & final L-1 may be decided on the basis of revised (reduced) Price, OR Through “Reverse Auction” amongst the L-1 Bidders online, if “Reverse Auction” is available in online mode. The above Principle may be followed for offline tenders also. All factual details including complaints and negotiations, if any, to be brought out and reasons for recommendation of award to be r