A non-participant in a tender process cannot challenge the tender conditions or process, as established by legal precedent.

ORAL ORDER

The petitioner is before this Court calling in question a notification of tender dated 24-10-2024 and seeks a consequential mandamus seeking issuance of a fresh tender notification.

2. Heard Sri Vijaya Raghava Sarathy H M, learned counsel appearing for petitioner and Sri S Sriranga, learned senior counsel appearing for respondents.

3. Facts in brief, germane, are as follows:

A notice inviting tender is issued by the BESCOM calling for tenders from eligible tenderers for the purpose of repairs and reconditioning of 11 KV class single coil/multi coil conventional (Aluminium wound) and 3, 4, 5 star rated failed Distribution Transformers of various capacities from 25 to 250 KVA and conversion of CSP to conventional bolt and nut type on lumpsum rate basis at Transformer repair center in Davanagere Taluk.. The petitioner does not participate in the tender, files the subject petition on the score that, the action of opening of the technical bid or the financial bid is contrary to Rule 22 of the Karnataka Transparency in Public Procurements Rules, 2000 ([‘KTTP Rules, 2000’ for short). This Court, accepting the submission of the learned counsel for the petitioner that the tender period was 90 days and after 90 days the respondents/BESCOM is wanting to open the technical bid or the financial bid as the case would be, grants interim order of stay. The matter is thus heard with the consent of the parties.

4. The learned counsel Vijaya Raghava Sarathy H M appearing for the petitioner would submit that the tender ought to have been completed on or before 90 days of issuance of the tender in terms of the circular dated 29-11-2021. The tender, in the case at hand, is admittedly issued on 24-10-2024. Therefore all the proceedings of the tender should have concluded within 23-10-2024. That having not been done, the learned counsel submits that the only option to the respondents is to issue a fresh tender.

5. Per contra, the learned senior counsel Sri S Sriranga appearing for the respondents would submit that Rule 22 nowhere prescribes the period. It would direct that as far as possible the tender should be concluded within the validity period notified in the tender. He would submit that the validity period notified in the subject tender is 180 days, which would come to an end on 20-05-2025. The extension is now granted of 100 days as an abundant caution and not that the validity of the tender is over. Above all, the learned senior counsel would submit that the petitioner has not participated in the tender, therefore, he cannot challenge any of the clauses or action of the document of tender.

6. I have given my anxious consideration to the submissions made by the learned senior Counsel and other respective learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. Rule 22 of the KTTP Rules forms the fulcrum of the lis. I therefore, deem it appropriate to notice Rule 22. It reads as follows:

“22. Time taken for evaluation and extension of tender validity:- (1) The evaluation of tenders and award of contract shall be completed, as far as possible, within the period for which the tenders are held valid. (2) The Tender Accepting Authority shall seek extension of the validity of tenders from the tenderers for the completion of evaluation, if it is not completed within the validity period of tender. (3) In case the evaluation of tenders and award of contract is not completed within extended period, all the tenders shall be deemed to have become invalid and fresh tenders may be called for.”

(Emphasis supplied)

Rule 22 deals with time taken for evaluation and extension of validity of tenders. Sub-rule (1) of Rule 22 mandates that tenders and award of contract shall be completed within the period for which the tenders are held valid. Therefore, the completion of tenders is linked to the validity of tender; Sub- Rule (2) permits to seek extension of validity of tender, if it is not completed within the period