M/S DEEP BLUE XPRESS LIMITED v. MUNICIPAL CORPORATION OF DELHI

Delhi High Court · 01 Sep 2023 · 2023:DHC:6398-DB

Satish Chandra Sharma; Sanjeev Narula

W.P.(C.) No. 9612/2023

2023:DHC:6398-DB

administrative petition_dismissed Significant

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The Delhi High Court dismissed the writ petition seeking participation in a tender after the bid submission deadline, holding no technical glitches occurred on the e-portal and emphasizing strict adherence to tender timelines.

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W.P.(C.) No. 9612/2023 HIGH COURT OF DELHI
Date of Decision: 01.09.2023

W.P.(C) 9612/2023 & CM APPLs. 36818/2023, 36819/2023, 36820/2023
M/S DEEP BLUE XPRESS LIMITED ..... Petitioner
Through: Dr. Manish Singhvi, Senior Advocate with Mr. Upendra Pratap Singh, Advocates.

VERSUS

MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through: Mr. Sanjay Vashishtha, Standing Counsel with Mr. Vishal Kumar, Advocate.

CORAM:

HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA SATISH CHANDRA SHARMA, CJ. (ORAL)

JUDGMENT

1. The Petitioner has filed the instant writ petition praying that it be allowed to submit its bid and participate in the tendering process in relation to the tender dated 07.06.2023 issued by the Respondent Municipal Corporation of Delhi (“MCD”) for disposal of 30 Lakhs MT (2nd Phase) of legacy waste by Bio-remediation and Bio-mining at Ghazipur Dumpsite, Delhi (“Subject Tender”). Digitaaly

2. The facts of the case reveal that the Petitioner is a registered company, which formed a Joint Venture (“JV”) to participate in the Subject Tender. As per the Request for Proposal in relation to the Subject Tender dated 07.06.2023 (the “RFP”), the deadline for submission of bids by prospective bidders to participate in the Subject Tender process was scheduled as 10.07.2023 till 03:00 PM. Further, the date for opening of technical bids was scheduled to be 11.07.2023 at 03:00 PM. By way of an addendum dated 03.07.2023, the last date for submission of bids was extended to 19.07.2023 till 03:00 PM and the date for opening of the technical bid was extended to 20.07.2023 at 03:00 PM.

3. Pertinently, under the RFP every prospective bidder must make a payment of Rs. 5,000/- for the bid document and Rs. 20,00,000/- for the Earnest Money Deposit (“EMD”).It is stated by the Petitioner, that it initiated the process of submission of its bid at about 11:00 AM on 19.07.2023, however, due to a technical glitch on the e-portal, the Petitioner was unable to process the aforementioned payments under the RFP on the eportal despite multiple attempts through different banks. Therefore, in order to avoid any delays, the Petitioner then made a payment of Rs. 20,05,177/through NEFT, and a copy of the payment receipt has been annexed by the Petitioner.

4. It is further stated by the Petitioner that it uploaded its bid document, including the bid price and the e-portal showed the file signing was completed and verification and validation is in progress. It is stated that even after the bid submission time had passed, the bid portal continued showing that the verification and validation is in progress. Digitaaly

5. Thereafter, the Petitioner wrote an e-mail and a letter to the MCD, highlighting the aforesaid facts and stating that due to technical issues, it was unable to submit its bid for the Subject Tender and requested the MCD, that it be allowed to submit its bid online/offline.

6. Learned Senior Counsel for the Petitioner submitted that the Petitioner could not be restrained from participation in the tendering process on account of its bid not being registered/submitted in relation to the Subject Tender due to a technical glitch in the e-portal. It is their case that the technical glitch was caused by no fault of the Petitioners, and it had submitted the bid documents including its bid price on the e-portal well within the stipulated time, and therefore the Petitioners should be allowed to submit its bid and participate in the tendering process of the Subject Tender. He submits that the Petitioner’s exclusion from participation in the Subject Tender, would amount to a violation of the Petitioner’s fundamental rights under Article 14 of the Constitution of India.

7. This Court issued notice in the present petition on 21.07.2023 and directed the MCD to obtain a report from the National Informatics Centre (“NIC”) in respect of the alleged technical glitch. It was also stated by this Court that notice was being issued by this Court solely based on the allegation of the Petitioner qua the alleged technical glitch and if the Petition came to be dismissed eventually, heavy cost would be imposed on the Petitioner.

8. On the aforesaid direction of this Court, the Respondent MCD has filed a status report in the form of an affidavit, wherein the IT Department of MCD has stated that a total of 5 bidders have successfully submitted their Digitaaly bids within the stipulated time frame following the process prevalent on the e-portal. The status report highlights that all the bidders who have participated in the subject tender, submitted their bids on the last day of bid submission i.e., 19.07.2023 before 03:00 PM.

9. A complete Hourly Server Health Report has been annexed by the Respondents along with its status Report. A perusal of the said report shows that there are 49 bids submitted successfully on the e- portal between 02:00 PM and 03:00 PM, of which 3 bids are in relation to the Subject Tender. It is thus, submitted by the learned counsel for the MCD that the e-portal had been working smoothly on 19.07.2023without any issues, technical glitches or snags, as has been alleged by the Petitioner.

10. It is also submitted by the learned counsel for the MCD that the Petitioner registered itself on the e-portal on 18.07.2023, i.e., one day prior to the bid submission cut-off date and time of 19.07.2023 at 03:00 PM. He submits that the home page of the e-portal displays “Guidelines for Hassle Free Bid Submission” and it is recommended that prospective bidders familiarize themselves with the e-portal for a trouble-free submission process. It is further submitted that the NIC provides a free of charge 24*7 Central Help Desk for the benefit of all prospective bidders as well as department users who use the e Procurement system of the NIC. Therefore, it is submitted by the learned counsel for the Respondents that the nonsubmission of bids within the due date/time of following the due process is the sole responsibility of the bidder itself and neither the NIC nor the procuring entity can be held responsible for the same in the absence of any perversity on account of the NIC or the procuring entity. Digitaaly

11. Heard learned counsels for the parties and perused the documents on record.

12. Upon perusal of the record, undisputedly, the deadline for submission of bids for the Subject Tender was 19.07.2023 at 03:00 PM. The Hourly Server Health Report filed by the MCD as per the direction of this Court shows that on 19.07.2023, there were 49 bids received on the bidding portal between 02:00 PM and 03:00 PM. The status report also highlights that there were a total of 5 successful bids received with respect to the Subject Tender on 19.07.2023 of which 3 bids were received between 02:00 PM and 03:00 PM. The aforesaid facts dispel all allegations vis-à-vis the occurrence of technical glitches or snags on the e-portal. If any issues were faced by the Petitioner herein while submitting its bid for the Subject Tender, they were certainly not caused by any technical glitch on the part of the NIC or the Respondents. Therefore, the failure of the bidder to submit its bid within due time on the e-portal is certainly the fault of the Petitioner itself, and this Court finds no merit in the allegations leveled by the Petitioner that it was unable to submit its bid due to technical glitches.

13. A similar question was recently decided by this Court in Jindal Steel & Power Ltd. v. Union of India, 2023 SCC OnLine Del 4401, wherein the Petitioner-therein approached this Court alleging that on account of a technical glitch, it was prevented from proceeding further in the e-auction process in relation to the allocation of coal mines. This Court in the said case, after going through the material placed on record, came to a finding that there was no technical glitch on the bidding portal and therefore it Digitaaly would be improper to grant relief to the Petitioner-therein. The relevant extracts of the decision in Jindal Steel (supra) reads as under:

“82. A perusal of the material on record shows that at the time when the auction for Chhendipada (Revised) Coal Mine was going on, two more auctions – one for Parbatpur Central Mine (40729) and the other for Datima Mine (40733), were being conducted on the very same e-auction portal. Material on record indicates that between 14:48:09 hrs to 14:56:09 hrs, i.e. the time period in which the Petitioner faced technical glitches on the auction portal, bidders were able to place their bids for the other two mines. Bids were received at 14:51:57 for Parbatpur Central Mine and for Datima Mine bids were received at 14:48:13, 14:49:14, 14:54:10 & 14:56:10. Since the bidders for two other auctions for coal mines were about to place the bids, which were being conducted at the very same time on the very same portal, it cannot be said that there was a technical glitch in the portal of Respondent No.3. The Petitioner has not been able to make out a case that there was a technical glitch across the board on the portal on which auctions were being conducted. 83. This Court is of the opinion that in view of the fact that there was no glitch on the portal of the MSTC, on which the e- auctions were being conducted, it would be improper to set aside the result of the present auction only on the ground that the Petitioner was prepared to give a higher bid.”

14. Similarly, the High Court of Orissa in Mythri Infrastructure & Mining India (P) Ltd. v. State of Odisha, 2021 SCC OnLine Ori 2436, refuted the contention of the Petitioners-therein that it could not submit its Initial Price Offer (“IPO”) on account of technical glitches faced by it. The relevant paragraphs of the decision in Mythri Infrastructure (supra) are reproduced as under: Digitaaly

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“25. While the Petitioners might contend that their inability to upload the IPO was for reasons entirely outside their control, the fact remains that there was no technical glitch on the side of Opposite Party No. 3. The log enclosed with its counter affidavit makes it abundantly clear that none of the other bidders encountered any difficulty in uploading the technical bid as well as the IPOs. While the log does show that the Petitioners' three attempts at uploading the IPO prior to 3 PM on 24th August, 2021 were unsuccessful, this is not conclusive proof of the technical glitches at the end of the Petitioners being for reasons entirely outside their control. Even assuming in this regard in favour of the Petitioners, the fact remains that they need not have waited till the last minute to upload the IPO. The tender documents made it clear that Opposite Party No. 3 would not be responsible for any problem at the bidder's end. In fact, this is the reason why MSTC Limited had offered help to bidders. The instructions in this regard were specific and read as under: “Attached Documents After uploading these documents, the bidder shall have to attach them with the specific tender for the concerned mine for which it is intending to submit the Technical Bid. It may be noted by the Bidder that in case it intends to use the same supporting document for more than one mine, it does not need to upload the same document every time. The supporting document, once uploaded, can be attached with Technical Bid for multiple mineral block(s), if desired. The bidder should note that only a file which is “attached” with a specific mine(s) shall be considered during evaluation of the Technical Bid. Files which are not attached to any mine(s) shall not be considered for evaluation. The Bidder should also note that a Bid will be considered as submitted if and only if the Bidder has submitted the Initial Price Offer. Only such

Digitaaly Bids will be opened for which Initial Price Offer has been submitted. It is further clarified that saving of Technical Bid without saving of the Initial Price Offer will be treated as nonsubmission of bid. Upon successful submission of Initial Price Offer, the Bidder shall receive a bid acknowledgment from the system automatically. The Bidders may note that the Technical Bid and the Initial Price Offer submitted online as above will be encrypted by the MSTC's own software before storage in the database. This will be done to protect the sanctity and confidentiality of the Bids before the actual opening of the same. The Bidder has an option to edit Technical Bid and initial price offer as many times as it wishes till the final submission.” (emphasis supplied)

26. In similar circumstances, in Shapoorji Pallonji (supra), the Supreme Court disapproved of the High Court having interfered and allowed the Respondent therein to participate in the tender process. In that case, the deadline for submission of online bids was 13: 00 hours. Respondent No. 1 had submitted its proposal at 12: 16 hours. It was claimed that it pressed the „freeze button‟ but could not get any acknowledgement. Its bid was therefore rejected. The system had generated an acknowledgement for other bidders and therefore it was held that there was no glitch in the system as far as the host of web portal i.e. the National Informatics Centre (NIC) was concerned. The Supreme Court came to the following conclusions:

“9. If NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by

Digitaaly travelling beyond the Government of India Guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the “freeze button”; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confer on the said respondent a second opportunity, which cannot be countenanced.

10. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 29 of the impugned judgment/order dated 28-9-2017. The same are, therefore, interfered with. The appeal is allowed accordingly.”

27. The present case is more or less similar on facts. The Court is therefore inclined not to accept the plea of Petitioner No. 1 that it should be allowed to participate in the second round of bidding by requiring the Opposite Parties to accept its IPO, which would be submitted physically.” Digitaaly

15. A Special Leave to Appeal being Appeal (C) No(s). 20851/2021, was filed against the Order of the Division Bench of the Orissa High Court. The said Appeal was rejected by the Apex Court vide Order dated 19.01.2023 by observing as under: “It is pointed out to us that about 122 bids were received and uploaded in the server in question on 24.07.2021 upto[3]: 00 p.m. On the basis of preponderance of probability, the High Court has rightly arrived at the conclusion that the technical glitch was at the end of the petitioners. During the course of hearing, the learned Senior Advocate appearing on behalf of the petitioners has stated that the tender qua the 11th block has been cancelled/annulled. This is disputed by the learned Senior Advocate appearing on behalf of the State of Odisha. We make no comments in this regard. Recording the aforesaid, we do not find any good ground and reason to interfere with the impugned judgment and hence the special leave petition is dismissed. Application for impleadment stand disposed of. Pending application(s), if any, shall stand disposed of.” (emphasis supplied)

16. It is well settled that the scope of interference by a High Court in matters of tender, while exercising its jurisdiction under Article 226 of the Constitution of India, is extremely narrow. The Court ought not to interfere in such matters unless it is established that the process adopted by the decision-making authority is mala fide, intended to favour someone, arbitrary or irrational. In case the decision-making process is just, fair and reasonable, the writ courts must loathe to interfere with the award of contracts by the State/ Instrumentalities of the State. [See: Tata Cellular v. Union of India,(1994) 6 SCC 651; Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818; Silppi Constructions Digitaaly Contractors v. Union of India,(2020) 16 SCC 489; and Agmatel India (P) Ltd. v. Resoursys Telecom, (2022) 5 SCC 362].

17. In view of the above, this Court does not find any merit in the contentions and allegations made by the Petitioner. It is difficult for this Court to come to a finding that the Petitioner was unable to submit its bid for the Subject Tender owing to technical glitches on the e-portal. The documents on record make it very clear that that the e-portal was working smoothly on the last date of submission of bids i.e., 19.07.2023. The issues, if any, faced by the Petitioner in submitting its bid before the bid submission cut-off time can only be attributed to the Petitioner and the Petitioner cannot seek refuge from its inability to adhere to the timelines prescribed by alleging the presence of and / or the occurrence of technical glitches on the e-portal. In view of the aforesaid, this Court finds no merit in the present writ petition and the same is dismissed.

18. On 21.07.2023, this Court has issued notice solely based upon the allegations of the Petitioner that there was a technical glitch due to which its bid has been rejected. It was further observed by this Court that in case the petition is dismissed, heavy costs shall be imposed upon the Petitioner. In the present case, there was no technical glitch – as argued by the Petitioner, and the allegations made by the Petitioner that the Petitioner was not able to submit its bid for the subject tender owning to technical glitches on the eportal, is incorrect and has not been established. Therefore, the petition is dismissed with costs of Rupees One Lakh to be paid to the Army Battle Casualities Welfare Fund within four weeks from today. Digitaaly

19. With these observations, the petition is dismissed, along with pending application(s), if any.

SATISH CHANDRA SHARMA, CJ SANJEEV NARULA, J. SEPTEMBER 01, 2023 Digitaaly

M/S DEEP BLUE XPRESS LIMITED v. MUNICIPAL CORPORATION OF DELHI

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