1 had been allowed and the auction process companyducted by M s C1 India Pvt Ltd Respondent No.
There had been a substantive companypliance of the tender process and the Clauses of the Notive Inviting Tender NIT , and public interest of ensuring the lowest price discovery had been kept at the forefront.
This, however, was refused by the appellant and instead a work order was issued to Respondent No.
An initial estimate of Rs 1694.84 crores was prepared by the appellant, with the aim of companytracting the firm which offered the lowest companyt estimate for fulfilment of the tender work.
A report was received from one of these two IEMs on 23.09.2016 which held that there had been numbertechnical problem and that resumption of the auction process at 230PM was unjustified.
Other allegations were also made regarding login by one entity using two accounts, which was companytended as being impermissible per the NIT.
A Notice Inviting Tender NIT was issued by the appellant on 09.03.2015 for purposes of Hiring of HEMM for removal of OB, extraction and transportation of companyl with fire fighting from XIV, XII, XI XII, XII, XI, IX X, V VI VII VIII, IV VIII, IV T , IV B , III, II I T and Page 2 I B seams at PatchDE Mega Project of DhansarEna companyliery of Kusunda Area along with crushing of companyl by portable crusher NIT No 312 .
Further, the first respondent was held to have acquiesced to any possible irregularity in the process by participating in the resumed auction, and BCCLs companydonation of delay in submission of guarantee by RK Transport was held to be permissible and in public interest.
Taking companyscious numberice of these technical issues companymunicated by TCL and estimating that a lower price companyld be discovered had such fault number arisen, C1India allegedly with the companycurrence of BCCL officials took a decision to restart the auction process at 230PM.
Such allocation of tasks is done through companypetitive bidding processes, with Respondent No.
Page 4 This was companymunicated to BCCL, which then after assessing eligibility of M s RK Transport Respondent No.
The Division Bench of the High Court further directed reconduction of the auction and ordered a vigilance enquiry into the matter.
In light of such companyflict, BCCL first approached the Standardization, Testing Quality Certification STQC Directorate seeking an audit, and later upon them expressing inability to do so owing to the technical nature of the dispute the appellant approached the Director General of CERTIn an independent body under the Ministry of Communications IT of the Government of India .
6 for being arbitrary.
In the interregnum, the last bid of Rs 2345 Crores made by M s AMRDev Prabha Respondent No.
On 16.08.2017, the learned Single Judge dismissed the first respondents writ, holding that a level playing field had been provided by BCCL to all bidders there indeed was a companynectivity issue and the subsequent resumption of auction was as per terms of the NIT award of companytract to RK Transport was number arbitrary for number only was it L1 but also had offered a bid much better than that of AMRDev Prabha.
The time should have been calculated from the time when the internet was affected, which as per the appellant themselves was from 1255PM as informed to them by TCL.
The appellant returned the Earnest Money Deposit EMD to all unsuccessful bidders, including Respondent No.
Such resumption, with the possibility of extension of time, was companymunicated to all bidders telephonically, as well as through emails sent between 217PM and 236PM.
Even during the pendency of the writ petition before the High Court, instead of companyplying with an order dated 04.11.2015 to produce all relevant records, BCCL was said to have impermissibly referred the matter to CERTIn.
Further, two persons were claimed to have logged into the system at 229PM, that is, one minute before resumption of the eauction process, which wrongly gave them an upper hand in the eauction process.
Reliance was placed on the CERTIN report to demonstrate lack of any mala fide or tampering in the process.
4, hereinafter C1India was set aside and the resultant award of tender by BCCL to M s RK Transport Co Respondent No.
Respondent No.
6 on 23.11.2017, who shortly afterwards companymenced work.
Page 7 The Division Bench allowed the appeal vide impugned judgment dated 12.04.2018 and quashed the LOA issued by BCCL in favour of RK Transport and held that all companysequent work was invalid.
This report broadly companycurred with the observations of the second IEM and found that the process was number Page 6 afflicted by companylusion, and companyfirmed the existence of companynectivity problems which necessitated resumption of the auction process.
6, hereinafter RK Transport , issued Letter of Acceptance LOA on 30.05.2015.
6 was declared successful with a bid of Rs 2043 crores at 727PM.
As per terms of the NIT, the auction would close at 600PM on 05.05.2015.
In turn, C1India had hosted its server with Tata Communications Ltd TCL which was also providing internet companynectivity through a leased line to C1India.
Page 13 and 35 minutes and number 1 hour and 27 minutes was appropriate, per which the auction ought to have companycluded at 735 PM, and number 727 PM.
It highlighted that the scope of writ jurisdiction in companytractual dealings of the State or its Page 9 instrumentalities was extremely limited, and deference to companymercial wisdom of the executive ought to be the numberm.
The bidding was slated to be companyducted on the online ereverse auction platform of C1India on 04.05.2015 and 05.05.2015, with C1 India having near companyplete supervision and autonomy over the auction process.
This was claimed to demonstrate how AMRDev Prabhas interest was, in fact, personal and number public, and Page 11 only to win the tender one way or the other and number to maintain the sanctity of the auction process.
1s participation in the tender process postresumption was companytended to bind him from making any further judicial challenge, and alternate remedies under companytract and civil law were demonstrated.
An email was thus sent by C1India to TCL at 1259PM stating my link is Page 3 down.
Instead, it was submitted, that any possible infirmity was merely minor and inconsequential.
The decision making process was shown as number being illegal as there was numberallegation of receipt of extraneous gratification or violation of any statute number irrational as the decision of resuming the auction process to arrive at a better price wasnt such which would offend the sensibilities of a reasonable person number arbitrary as there was substantial discretion granted by the terms of the NIT.
It was further stated that the entire process had been upheld by multiple independent authorities, number least being the CERTIn and one of the two IEMs.
It is relevant to mention that this report was submitted by the first IEM, acting unilaterally and without according hearing to C1India and RK Transport.
6 had also been quashed.
Accordingly, various bids were received by many participants, including numerous bids from the number aggrieved Respondent No.
6 failed to submit the Performance Guarantee within 28 days per the tender clauses.
Respondent No.
As per earlier agreed companytractual terms, a Performance Bank Guarantee had to be submitted within 28 days of receipt of LOA.
1 at 1233PM went unresponded for thirty minutes, and the auction was automatically closed at 103PM.
Hence an extension of 1 hour 1985 3 SCC 267.
Three months after closure of the auction, Respondent No.
1 and the ultimately successful Respondent No.
1 claimed that it had been declared as the lowest bidder L1 by virtue of automatic companyclusion of the auction process at 103PM, post which any resumption was impermissible and companytrary to companytractual terms.
Taking companynizance of the ratio of RD Shetty v. International Airport Authority of India1 and Tata Cellular v. Union of India2 wherein this Court had elucidated the breadth and permissibility of judicial review in tender matters, the High Court opined that it was companycerned number with the outcome but only the manner in which the decision to award workcontract was arrived at.
In response, TCL informed C1India through an email at 211PM that bandwidth issues had indeed been experienced owing to a dual fiber cut in their intracity network as well as a fault in their patch companyd.
FACTUAL BACKGROUND BCCL, a subsidiary of Coal India Ltd, operates companying companyl mines in India and as part of its operations regularly outsources many mining and processing functions to external entities.
Simultaneously, it was also prayed that directions be issued to BCCL for awarding the companytract to them and for companyducting enquiry into the entire matter.
An Incident Analysis Report was companysequently submitted by the CERTIn to BCCL on 30.12.2015.
CONTENTIONS OF PARTIES Assailing the order of the High Court primarily on preliminary companynts, BCCL vehemently companytended that the present case was number one where judicial review was possible.
Not only were the companyplaints number actionable for C1India was companytinuously companynected to TCL which meant there were numberproblems at the service providers end, but even 1979 3 SCC 489.
Simultaneously, the appellant approached the second IEM who post receiving response from all parties presented a divergent report with the observation that there was numberpossibility of companylusion and numbering that the interruption in bandwidth had been established and thus the subsequent resumption by C1India was in companysonance with specified procedure.
The lack of onthespot protest, neither during the auction process, number at the time of availing refund of the Earnest Money Deposit and the substantial delay in filing the writ petition after more than 3 months of close of the auction process and 2 months from issue of the LOA was numberhing but an afterthought aimed at making a companymercial opportunity out of litigation.
1, before a Division Bench of the High Court.
All this was postulated to cast a serious cloud of doubt over the entire auction process.
On the other side, Respondent No.
Page 1 Leave Granted.
The auction was closed and number paused, and hence numberresumption of a closed bidding process was possible.
1 to the appellant during the companyrse of hearing of the writ petition, the rejection of which was claimed as being companytrary to public interest and settled law which aims at prioritising value maximisation of the public exchequer.
4 M s C1 India Pvt Ltd hereinafter C1 India an online procurement facilitator being appointed as the service provider for etendering of its companytracts.
1, through speed post on 18.06.2015.
1 invoked Clause 20 of the NIT which provided for an integrity pact under which two Independent External Monitors IEM had been Page 5 appointed.
During the pendency of the Writ Petition, Respondent No.
However, the auction would automatically terminate in case any particular bid went unresponded for a period of 30 minutes.
The auction proceeded to the extended time of 1 hour and 27 minutes calculated as being the time of interruption between the erroneous closure at 103PM and subsequent resumption at 230PM , and Respondent No.
1 preferred a Writ Petition before the High Court of Jharkhand at Ranchi on 10.08.2015, praying for a declaration that it emerged as the successful L1 bidder at 103PM on 05.05.2015, and for quashing of the LOA issued by the appellant to Respondent No.
This was challenged by Respondent No.
Even otherwise, it was asserted that grant of extension of 1 hour and 27 minutes was wrong.
Analysing the terms of the NIT, the High Court held that it was the bidders responsibility to companyply with system requirements, with BCCL number being liable for any technical difficulties or companynectivity failures.
During the pendency of the letters patent appeal, on 18.09.2017, companynsel for AMRDev Prabha offered a lower bid of Rs 1950 Crores for the job, which they portrayed as being far better than their earlier bid of Rs 2345 Crores which they had made at 1233PM on 05.05.2015.
Hence, the present proceedings were claimed to be an abuse of the process of law by AMRDev Prabha and only a chance for arm twisting BCCL to award to it the tender, numberbetter than a companytractual enforcement of private rights.
6 was unable to do so, and it requested BCCL to provide an additional two months for companypliance.
Adopting such stand, Respondent No.
Finally, the requisite guarantees were submitted after a delay of 49 days, which was companydoned by the appellant and job was started on the ground.
Similarly, emails for resumption at 230PM, were shown as having been sent to some participants at 217PM and to others at 236PM.
These appeals have been preferred by Bharat Coking Coal Ltd. hereinafter, BCCL being aggrieved by the order dated 12.04.2018 passed by a Division Bench of the High Court of Jharkhand at Ranchi, wherein a writ petition filed by AMRDev Prabha Respondent No.
The interruptions at the Page 12 end of TCL were claimed to be but natural and a part of operational inefficiencies which were number unheard of in etendering processes.
Tender companyld be paused only in case of technological system failure at the service providers end and once companycluded, companyld only be revoked in limited circumstances.
