JUDGMENT

1. The Petitioner has approached this Court challenging the action of Respondent No.1/DDA in conducting its e-auction through the e-Wizard portal of M/s Unibrain as stated in public advertisement dated 25.09.2023 and Corrigendum dated 25.09.2023 which the Petitioner alleges is in violation of the Agreement dated 06.08.2020 entered into between the Respondent No.1/DDA and the Respondent No.2/ITI Limited on the ground that the Work Order dated 03.08.2020 placed on the Respondent No.2/ITI Limited by the Respondent No.1/DDA was based on the Memorandum of Understanding (MoU) dated 16.03.2020 entered into between the Petitioner herein and the Respondent No.2/ITI Limited. It is stated that it was only on the strength on the Memorandum of Understanding (MoU) dated 16.03.2020 entered into between the Petitioner and the Respondent No.2/ITI Limited, the Respondent No.2/ITI Limited could get the work order from Respondent No.1/DDA as service provider for E-Auction Portal Services. The Petitioner is also challenging the Order dated 31.10.2023 wherein Respondent No.1/DDA has amended the work order dated 03.08.2020 to the extent of shifting to e-Wizard portal which is a product of a third party M/s Unibrain as a service provider for providing e-auction services.

2. The facts, in brief, leading to the filing of the instant writ petition are as under:

a. Respondent No.2/ITI Limited floated an expression of interest for selection as an “application service provider” for providing e- procurement solution and related services. It is stated that pursuant to expression of interest floated by the Respondent No.2/ITI Limited, the Petitioner herein, which is an ISO 9000 certified company, engaged in development of Information Technology Solutions, customized software and providing solutions for e- governance and IT fields, such as SPEC WIZARD, TENDER WIZARD and HR-payroll. The Petitioner showed interest and a Memorandum of Understanding (MoU) was entered into between the Petitioner and the Respondent No.2/ITI Limited on 04.08.2015 which was valid for a period of 36 months from 04.08.2015.

b. On 04.08.2015, the Memorandum of Understanding (MoU) records that the Petitioner had developed the software application as sought by the Respondent No.2/ITI Limited in its expression of interest. The said MoU also records that the Petitioner agrees to join hands with Respondent No.2/ITI Limited on exclusive basis for a fruitful association, complementing each other's strengths in their respective areas of competence and utilizing their respective skills and expertise in business cooperative activity. The purpose of the said MoU was to enable the Respondent No.2/ITI Limited to provide e-procurement solution to the clients of Respondent No.2/ITI Limited. The said MoU was for a period of 36 months and it was further extended for a period of 36 months from 04.08.2018.

c. The Respondent No.1/DDA floated a tender on 10.12.2019 for appointment of a service provider for providing e-auction services. A perusal of the relevant clauses of the tender, a sum of Rs.20 lakhs as Earnest Money Deposit was to be deposited by the bidder. The tender also stated that the bid shall not be altered or modified after its submission and the tender will not be sub-let, sub-contracted in part or in full after getting the assignment/award of work. The tender specifically stated that the parties shall enter into a contract, incorporating all clauses, pre-bid clarifications and the proposal of the Bidder, between the DDA and the successful bidder. It is also pertinent to mention that the date sheet which is a part of the tender required the tenderer to reveal the details of the consortium partner and the MoU entered into with the consortium partner had to be provided along with the bid. The data sheet also specifically provided that the e-Auction solution provided by the bidder should conform to the requirements of the IT Act, 2000 and amended IT Act, 2008. The data sheet 3 annexed to the