Lamba Buildcon Pvt. Ltd. & Anr. v. Union of India & Anr.

12. The contention of the Petitioners that the contents of the corrigendum must be communicated in writing which means that letters must be sent informing about the contents of the corrigendum cannot be accepted. Clause 8.[2] of the tender reads as under: "8.[2] Any addendum issued shall be part of the Bidding Document and shall be communicated in writing to all who have obtained the Bidding Document from the Employer in accordance with ITB 6.3."

13. Clause 8.[2] requires communication in writing regarding amendment of bidding document. This communication was sent to the Petitioners on 02.05.2023 by way of email and SMS. The corrigendum was also uploaded on the website on 02.05.2023 itself. At this juncture, it is pertinent to reproduce the letter dated 19.05.2023 sent by the Petitioners to the Respondents which reads as under: "Sub: "Construction of India-Mongolia Friendship Secondary School "(IFMS) at Ulaanbaatar, Mongolia. Tender Reference No: WAP/INFRA/MEA/IFMS/02- "Sir, With reference to the bidding process for above subjected work, we approached your esteemed office with the following submission:-

1. The Bid closing dates of the said work was repeatedly extended from (Tender Issued Date of 27/02/23) to 27/03/23, 09/04/2023, 20/04/2023 & 12/05/2023 respectively. The Bids were accordingly prepared and submitted.

2. Meanwhile due to change of Bid Receiving Authority from WAPCOS (CE) Office, Gurugram to Ministry of External Affairs, New Delhi, unfortunately our bid along with Bank guarantee submitted to m/s WAPCOS instead of MEA due to oversight of latest Corrigendum. Now as of today we just came to know of the latest corrigendum stating the venue change. It is therefore, requested to consider our bid for your further evaluation/processing.

3. The Demand Draft of tender fee was submitted for Its. 15, 000.00 only as per Tender Details Dashboard as seen on display on the e-portal indicated, (please refer attachments) the Tender fee as Its.15, 000.00 only without GST as per actual terms of the Bid Notice, we are hereby submitting the Demand Draft and the Bank guarantee with the corrected Bid Receiving Authority for the amount as per the Bid Notice. It is requested to consider our Bid for further evaluation and processing, in view of our above explanation based on facts. As we arc reputed and hitech organizations among the present Competitors, we deserve a chance to be given us enabling us to contribute our best. Thanking you, For Comt Constructions Pvt. Ltd. Sd/- Harindra Singh Authorized Signatory" (emphasis supplied)

14. A perusal of the paragraph No.2 of the abovementioned letter shows that there was an oversight on the part of the Petitioners. The Petitioners cannot take advantage of lapse on their part and challenge the entire tender process.

15. The law relating to interference in tender matters by the Courts has been well settled by the Apex Court in a number of judgments. The Apex Court in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 has held as under:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."

16. The Apex Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 has held as under:

of the project. It was brought to our notice by Afcons Infrastructure in these appeals that GYT-TPL JV did not have any experience in the construction of a viaduct by the segmental construction method and that the translations of documents in Mandarin language filed in the High Court were not true English translations. Submissions made by the learned counsel for Afcons Infrastructure in this regard are important and would have had a bearing on the decision in the writ petition filed in the High Court but since Afcons Infrastructure was not a party in the High Court, it could not agitate these issues in the writ petition but did so in the review petition which was not entertained. It is to avoid such a situation that it would be more appropriate for the constitutional courts to insist on all eligible bidders being made parties to the proceedings filed by an unsuccessful or ineligible bidder."

17. The Apex Court in Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489 has held as under:

courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer."

18. The Apex Court in N.G. Projects Ltd. v. Vinod Kumar Jain, (2022) 6 SCC 127 has held as under:

tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work."

19. Applying the abovementioned law to the facts of the present case, it is seen that the Respondents have the power to amend the tender document. The tender document was amended and the notification regarding the amendment to the tender document was communicated to the bidders through email and SMS. Failure on the part of the Petitioners not to respond to the email and SMS cannot be a ground to permit the Petitioners to bid once again or to strike down the entire tender process. The contention of the Petitioners that the corrigendum should be informed in writing to all the bidders cannot be accepted. The information that requirements of the technical bids have been amended and that the bidder must contact the authorities is sufficient compliance of Clause 8.2.

20. In view of the above, this Court does not find any infirmity in the tender process.

21. The petition is dismissed, along with pending application(s), if any.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J JULY 03, 2023