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Orissa High Court · body

2014 DIGILAW 500 (ORI)

TECHSUPPORT v. Bharat Sanchar Nigam Ltd.

2014-08-19

AMITAVA ROY, B.R.SARANGI

body2014
Judgment AMITAVA ROY, C.J. Heard Mr. B.M.Pattnaik, learned Senior Counsel for the petitioner. 2. In view of the order proposed to be passed, we do not consider it necessary to issue formal notice to the opposite party. 3. The petitioner, a partnership firm dealing with computer and electrical devices and aspiring to participate in the process initiated by the NIT No. BBSTD/Comp-6/2014/5, dated 8.7.2014 for supply of computer software, net work technical support and maintenance of computers and peripherals etc. is before this Court with the grievance that the opposite party have arbitrarily and illegally excluded it therefrom. 4. Its pleaded case in short is that in response to the tender stipulation contained in Clause 3(a) of the NIT, the intending bidders had to register themselves with M/s. I.T.I. Ltd-opposite party no.3 using the tender portal i.e. https.//www.tenderwizard. com/BSNL for obtaining user ID., Digital signature etc. by paying registration fee and processing fee for facilitating participation in the process. As per Clause 3(a) Section I of NIT, the petitioner did deposit Rs. 3933/-towards registration fee through E-payment which was acknowledged by opposite party no.3. The petitioner has averred that opposite party no.3 on receiving payment also issued user-Id (TECHSUPPORT) and password (7kn7ym) to it through E-mail on 26.7.2014 for uploading its tender documents after activating its user account. It is further pleaded that as per Clause-1 (10,11) OF Section 1 of the NIT, the petitioner deposited Rs. 30,000/-towards EMD and Rs.525/-as cost of tender form through online banking/RTGS NEFT. According to the petitioner, in spite of such compliance when the petitioner tried to upload its tender documents on 26.7.2014, the same was not accepted as the user account of the petitioner was indicated not to be activated by opposite party no.3. Thereafter, on 27.7.2014, the petitioner send an Email to opposite party no.3 with a request to activate its user account to which the opposite party no.3 on 28.7.2014 at 10.12 A.M. send an Email to the effect that its request was on progress. According to the petitioner, on 28.7.2014 at 11.11 A.M. it also forwarded another Email to opposite party no.3 along with its bank statement reflecting the payment made therein with a request to activate its user account. According to the petitioner, on 28.7.2014 at 11.11 A.M. it also forwarded another Email to opposite party no.3 along with its bank statement reflecting the payment made therein with a request to activate its user account. Opposite party no.3 responded by its email on 28.7.2014 at 12.06 P.M. as well as at 1.52 P.M. indicating that it had not received any payment and advised the petitioner to contact its bank. The petitioner thereafter approached opposite party no.2 with a representation on 28.7.2014 enclosing the copy of the bank statement and e-payment order disclosing that an amount of Rs. 3933/-had been duly credited to the account of opposite party no.3 on 26.7.2014 and requested the said opposite party to allow extension of time so as to enable it to submit its bid. However, as the opposite party has not accepted the request, the petitioner approached this Court alleging mala fide and callous attitude of the opposite party seeking judicial intervention. The following reliefs have prayed for:- “Under this circumstance, it is humbly prayed that this Hon’ble Court may be graciously pleased to admit this writ application and issue notice to the opposite parties and after hearing the parties be pleased to direct the opposite parties to allow the petitioner to submit its tender documents by extending the date from i.e. 28.7.2014 and the opening of technical bid i.e. 30.7.2014 to suitable dates. And In the alternative further be pleased to quash the tender bearing NIT No. BBSTD/Comp-6/2014/5, dated 8.7.2014 under Annexure-2.” 5. Learned counsel for the petitioner has emphatically reiterated the above and submitted that in the facts and circumstances of the case, it is essential in the interest of justice that this Court should exercise its power of judicial review and issue an appropriate writ to the opposite party to extend the last date of submission of tender beyond 28.7.2014 and in the alternative quash the tender process. According to Mr. Pattnaik, as the petitioner has been wrongly excluded from the tender process for no fault on its part, such intervention is called for to maintain transparency and fairness in the same. 6. Upon hearing learned counsel for the petitioner and on a consideration of materials on record as available, we are left unconvinced by the pleas raised. According to Mr. Pattnaik, as the petitioner has been wrongly excluded from the tender process for no fault on its part, such intervention is called for to maintain transparency and fairness in the same. 6. Upon hearing learned counsel for the petitioner and on a consideration of materials on record as available, we are left unconvinced by the pleas raised. Admittedly, as the notice inviting tender would disclose, the last date for submission of tender was 28.7.2014 and the technical bids were to be opened by 30.7.2014. Further the pleaded averments in the writ petition demonstrate the stand of the opposite party more particularly opposite party no.3 against receipt of payment as required from the petitioner in terms of Clause 3(a) of the NIT. This clause being of utmost significance is quoted herein below:- “ Clause 3(a)-Intending bidders are requested to register themselves with M/s. ITI Limited through the website www.Tenderwizard.com/BSNL for obtaining user-I d., Digital Signature etc. by paying Vendor registration fee and processing fee for participating in the above mentioned tender.” 7. It is not disputed that any bidder failing to comply with the stipulation contained in this clause, would be debarred from participating in the process. The rival assertions vis-à-vis payment per se raises a disputed question of fact. Undisputedly, though the petitioner as a contending bidder was fully aware that the last date of submission of tender was 28.7.2014, it has instituted the present proceeding on 11.8.2014, i.e. almost a fortnight after the expiry of that date. No acceptable explanation is forthcoming in this regard. As it is apparent on the face of record, a public participatory process had been initiated by the NIT and the scheduled dates for submission of tender and subsequent stages as on date have passed. The materials on record do not demonstrate with any unimpeachable decisiveness that the exclusion of the petitioner from the process involved had been actuated by bias or mala fide on the part of opposite party. To presume any such vice would be according to us wholly inferential which is impermissible and unwarranted in the facts and circumstances of the case. The petitioner having failed to fulfil an essential tender condition, we are of the unhesitant opinion that the challenge as laid, does not merit acceptance. 8. The writ petition lacks in merit and is dismissed accordingly. No cost. DR.B.R.SARANGI, J. I agree.