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2023 DIGILAW 1322 (RAJ)

Smo Ferro Alloys Pvt. Ltd. v. State of Rajasthan

2023-07-07

SAMEER JAIN

body2023
JUDGMENT : SAMEER JAIN, J. 1. The present writ petition was filed with the following prayers: “(i) By a writ of certiorari or any other appropriate writ order or direction in the nature thereof, quash the Tender process initiated by TENDER No. MSTC/JPR/Directorate of Mines & Geology Rajasthan Udaipur/17/Udaipur/23-24/7362 dated 17.05.2023 and may be directed to initiate the tender process afresh. (ii) By a writ of mandamus or any other appropriate writ order or direction in the nature thereof, the respondents may kindly be directed to consider the technical bid of the petitioner and further writ of mandamus, the respondents be directed to allow the petitioner to submit its initial price offer. (iii) Any other relief as this Hon’ble Court deems fit and proper be also granted in favour of the petitioner. (iv) Cost of the present proceedings may also be awarded in favour of the humble petitioner.” Looking at the urgency involved, and with the consent of the parties, the writ petition is taken up for final hearing at this stage. FACTS/BACKGROUND 2. The facts of the case, as stated by learned counsel for the petitioner, are as follows: 2.1 That the petitioner is a company registered under the Companies Act, 1956 and is engaged in the manufacturing, mining and construction sector serving the government and private sector all over India for more than two decades. 2.2 That the petitioner company has been working consistently with the Central and State Government and is well aware about the E-Auction Process as the petitioner had previously participated in several E-Auctions conducted by different government departments and has also undertaken three important tenders with the respondent department. 2.3 That the Department of Mines & Geology, Government of Rajasthan had issued a Notice Inviting Tender (for short “NIT”) dated 17.05.2023 inviting bids for the purpose of grant of mining lease/composite license for the blocks of major minerals. The issue involved in the present petition is related to mineral block of ‘Basri Ganeshpura Blovk n/v Basri Ganeshpura Tehsil Shahpura District Jaipur’ for ‘Composite License’ 2.4 That as per the NIT, last date of purchase of tender document was 01.06.2023 upon payment of a fee of Rs. The issue involved in the present petition is related to mineral block of ‘Basri Ganeshpura Blovk n/v Basri Ganeshpura Tehsil Shahpura District Jaipur’ for ‘Composite License’ 2.4 That as per the NIT, last date of purchase of tender document was 01.06.2023 upon payment of a fee of Rs. 2 Lakhs and the last date of submission of technical bid along with necessary documents (physical/hard copy as well as soft copy through online mode) and initial price offer (for short “IPO”) (only through online mode) was 21.06.2023 until 01.00 PM. The tender in question has a two stage bidding process; the first stage wherein the technical bid and IPO were to be submitted by various bidders. Only those bidders who are found to be eligible and whose IPO is equal or greater than the reserved price and whose bid meets the requirement under the NIT were to be declared technically qualified and the highest IPO amongst the technically qualified bidder is supposed to be the floor price for the second round of Online Electronic Auction. Only the qualified bidders could proceed to the second round of tender wherein only the qualified bidders would be permitted to submit their final price offer. 2.5 That the petitioner company had submitted the physical copy of the technical bid well within time along with bank guarantee to the tune of Rs. 3.70 crores (Rupees Three Crores Seventy Lakhs only) on 20.06.2023 itself. The cause and controversy in the matter arose when the petitioner company attempted to upload the technical bid along with the IPO online on the MSTC Portal, which was incharge on conducting the E-Auction, before the deadline, i.e. 21.06.2023 at 01.00 PM. It is the case of the petitioner company that due to technical glitches/errors on the MSTC portal, the petitioner company was unable to upload the bid online in time and therefore the petitioner company was prevented from participating in the tender process. Being aggrieved by their non-participation in the tender process, the present writ petition was filed with the prayers as quoted above. SUBMISSIONS OF PETITIONER: 3. Learned counsel for the petitioner submits that the petitioner made all sincere efforts to submit the technical bid online before the deadline, but on account of technical glitches/errors, for no fault of its own, the petitioner could not upload the bid. SUBMISSIONS OF PETITIONER: 3. Learned counsel for the petitioner submits that the petitioner made all sincere efforts to submit the technical bid online before the deadline, but on account of technical glitches/errors, for no fault of its own, the petitioner could not upload the bid. In support of his contention that the petitioner was prevented from uploading the technical bid before the deadline, the petitioner has relied upon the screenshots of the error faced by it (Annexure-3) along with details of several calls with the MSTC help desk (Annexure-4) as well as details of emails exchanged between the respondent Department and MSTC (Annexure-5). It is submitted that a bare perusal of the above referred Annexure would reveal that the technical glitches plagued the MSTC portal before the deadline of 01.00 PM on 21.06.2023, which prevented the petitioner from uploading the technical bid along with IPO online, even though the technical bid along with the bank guarantee was submitted on 20.06.2023 itself. Learned counsel further submits that the petitioner has remained vigilant throughout, there has been no delay on part of the petitioner and nor can any fault be attributed to the petitioner. The petitioner contacted the help desk of MSTC as early as 12.29 PM on 21.06.2023, to bring the issue of technical glitches into the notice of MSTC, so that the same could be addressed/cured within time. However, the MSTC failed to clear the technical glitches in time which resulted in petitioner losing the opportunity to upload the technical bid along with the IPO. It is contended that the petitioner cannot be blamed or made to suffer on account of technical mistake that happened online which was beyond the control of the petitioner. Learned counsel for the petitioner further submits that as on date, no third party rights have been created yet and if the bid of the petitioner is accepted at this stage, no prejudice would be caused to the respondent; rather the non-consideration of petitioner’s bid is also detrimental to the State’s financial interest as the same will limit competition. Learned counsel for the petitioner have also relied upon Apex Court judgment of Tata Cellular vs. Union of India, AIR 1996 SC 11 as well as judgment of Co-ordinate Bench of this Court in JSW Cement Ltd. vs. State of Rajasthan and Others, 2019 (1) RLW 612 (Raj) [S.B. Civil Writ Petition No. 12873/2017 decided on 29.05.2018]. Learned counsel for the petitioner have also relied upon Apex Court judgment of Tata Cellular vs. Union of India, AIR 1996 SC 11 as well as judgment of Co-ordinate Bench of this Court in JSW Cement Ltd. vs. State of Rajasthan and Others, 2019 (1) RLW 612 (Raj) [S.B. Civil Writ Petition No. 12873/2017 decided on 29.05.2018]. SUBMISSION OF RESPONDENTS 4. Per contra, learned AAG has raised preliminary objections on maintainability of writ petition. Learned AAG submits that it is a settled law that Writ Court should not ordinarily interfere in matters relating to tender or contract as they do not have the expertise to examine the terms and conditions of present day economic activities of the State and this limitation should be kept in view and courts should be even reluctant in interfering with contracts involving technical issues as there is a requirement of necessary expertise to adjudicate upon such issues. 5. On merits, learned AAG has placed reliance on clause 2(ii) of Schedule-III of the tender document, the relevant part of which is reiterated below: “The bidders shall also note that online submission of technical bid and the initial price offer with supporting document and offline submission of certain original document shall be allowed only up to time and date as per Bid Due Date specified in clause 12. Bidders in their own interest are advised to complete the entire process well in advance to avoid any last minute hiccup/technical problems. No complaints shall be entertained in this regard at any stage.” 6. Learned AAG submits that as many as 17 other bidders were successful in uploading their bids online and no one complained of any technical glitches. The petitioner was well advised to complete the entire process well in advance, yet the claim of the petitioner shows that he started the process at the fag end. Even the first communication to the State Office of MSTC was made at 01.02 PM on 21.06.2023, that is after the closure of bidding. Learned AAG contends that there were no technical glitches in the MSTC portal and technical issues, if any, lied in the local machine/computer system of the petitioner. Even the first communication to the State Office of MSTC was made at 01.02 PM on 21.06.2023, that is after the closure of bidding. Learned AAG contends that there were no technical glitches in the MSTC portal and technical issues, if any, lied in the local machine/computer system of the petitioner. It is further contended that it was entirely due to petitioner’s fault in not following the tender process as prescribed in the NIT and by not configuring their system in accordance with the settings prescribed in the Schedule-III of the tender document that the petitioner’s technical bid could not be uploaded. 7. Learned AAG further submits that the E-Auction portal/system is designed in such a way that once the deadline for uploading the bids online is crossed, the same cannot be reopened without frustrating the entire tender process. In such circumstances, learned AAG has prayed for dismissal of the writ petition, both on merits and on account of procedural difficulties. ANALYSIS 8. Heard the arguments advanced by both the sides, scanned the record of the writ petition and considered the judgments cited at Bar. 9. The limited issue which is to be decided by this Court is whether the petitioner was prevented from uploading the technical bid along with IPO online for reasons beyond its control and if yes, what relief, if any, could be granted to the petitioner at this stage? 10. The deadline for submission of online bid along with IPO was 01.00 PM on 21.06.2023. Any time before the deadline is valid time for filing/uploading the bid. As per the clause 8 of the tender documents, the technical bid was to be submitted both physically and electronically and the IPO was to be submitted only electronically. Physical submission of IPO would lead to summary rejection of the bid. It is undisputed that the physical copy of the technical bid was submitted on time. It is also undisputed that the petitioner attempted to upload the soft copy of the technical bid along with IPO on 21.06.2023, before the deadline of 01.00 PM. Upon perusal of Annexure 2-4, it is abundantly clear that the bid of the petitioner could not be uploaded due to technical errors over which the petitioner had no control. It is also undisputed that the petitioner attempted to upload the soft copy of the technical bid along with IPO on 21.06.2023, before the deadline of 01.00 PM. Upon perusal of Annexure 2-4, it is abundantly clear that the bid of the petitioner could not be uploaded due to technical errors over which the petitioner had no control. It is also abundantly clear that the petitioner remained vigilant throughout and made attempts to get the problem resolved with the respondent- Department and MSTC ever since 12.29 PM on 21.06.2023, i.e. before the deadline of 01.00 PM. A notice was also sent to MSTC on 21.06.2023 itself and the writ petition was also filed promptly. 11. In the case in hand, the bona-fide of the petitioner is not disputed nor are there any allegations of mala-fide on the respondent. Admittedly, the petitioner has undertaken several tenders from the respondent-Department and is working consistently with the Government for more than two decades and have a good track record. Therefore it can safely be assumed that the petitioner company was well aware about the E-Auction procedure. The petitioner company had also deposited the prescribed fee of Rs. 2 Lakhs and arranged bank guarantee of Rs. 3.70 crores well within time, which further establishes their bona-fide. 12. In these peculiar facts and circumstances, considering that since the bona-fide of the petitioner is established; since no prejudice will be caused to the State if the petitioner is allowed to participate in the tender process; since no third party rights have been created thus far; since the non-submission of online bid of the petitioner was due to technical error over which the petitioner had no control; since the involvement of petitioner in the tender process would be in the larger public interest as it would promote competition, and considering the ratio of Apex Court judgment of Tata Cellular vs. Union of India (supra), this Court is of the opinion that substantial rights of the petitioner should not be affected due to procedural and/or technical errors/lapses. 13. 13. In view of the above, this Court directs the respondents to consider the technical bid of the petitioner submitted physically and if the petitioner is found technically qualified, then to accept the IPO of petitioner physically, as it is stated that the online option once closed cannot be reopened, and allow the petitioner to participate in the tender process as per merit. RESULT 14. Accordingly, the writ petition is allowed in above terms. Pending applications, if any, shall stand disposed of.