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Monday, February 12, 2018

Corporate law- E- Tenders - the bid uploaded was invalid as such did not press the ‘freeze button’ to complete the bid process - failure of the party can not be set at right by High court giving an opportunity - high court order is set aside = “Whether the data uploaded by the respondent - bidder – Shapoorji Pallonji & Company Private Limited, receipt of which was not acknowledged on account of his alleged failure to press the ‘Freeze Button’, is irretrievably lost by this time and cannot be retrieved under any circumstance?” = where the 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 confers on the said respondent a second opportunity which cannot be countenanced.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1836 OF 2018
[ARISING OUT OF SPECIAL LEAVE PETITION
(CIVIL) NO.28570 OF 2017]
MAHARASHTRA HOUSING DEVELOPMENT
AUTHORITY ...APPELLANT(S)
VERSUS
SHAPOORJI PALLONJI & COMPANY
PRIVATE LIMITED & ORS. ...RESPONDENT(S)
JUDGMENT
RANJAN GOGOI, J.
1. Leave granted.
2. The appellant – Maharashtra
Housing Development Authority through its
Chief Officer issued e-Tender notice
inviting proposals for the work of
“Technical designing, coordination and
construction for rehabilitation/sale/
commercial/amenities along with
construction of habitable temporary
transit camps and other various works in
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respect of redevelopment project”. The
bidders were to submit their bids in two
stages i.e. technical and financial. They
were required to comply with the
experiences and other conditions mentioned
in the Request for
Qualification-cum-Request for Proposal (RFQ
cum RFP) document. The last date for
submission of on-line bid was fixed on 17th
May, 2017 which was subsequently extended
from time to time and lastly extended upto
1300 hours of 27th July, 2017.
3. According to the first respondent
– writ petitioner, it had uploaded its
technical and financial bid at about 1216
hours on 27th July, 2017 on the website of
the appellant. The first respondent –
writ petitioner claimed that though it had
pressed the ‘freeze button’, it could not
get an acknowledgement of the bid
submitted. Thereafter, correspondences
were entered into/exchanged between the
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first respondent and the appellant
whereafter the first respondent was
referred to National Informatics Centre
(NIC) which had designed and maintained
the e-portal on which bids were submitted.
As the NIC took the view that the absence
of acknowledgement of the submission of
the bid by the first respondent – writ
petitioner was on account of its omission
to press the ‘freeze button’ and as there
was no technical glitch in the system,
amply demonstrated by the acknowledgements
generated in favour of other bidders, the
first respondent – writ petitioner was not
entitled to any consideration of its
otherwise defective bid. This had led to
the filing of writ petition out of which
this appeal has arisen wherein the High
Court of Bombay by the impugned judgment
dated 28th September, 2017 had issued the
following directions:
“15. In the aforesaid
facts and circumstances, we
issue directions to the NIC to
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access the files containing the
bid documents of the petitioners
and transfer and/or make it
available to respondent no.2
MHADA which would decrypt the
said files and consider the bid
documents of the petitioners as
a “valid bid” with the
assistance of the NIC and open
the technical bid of the
petitioners forthwith since we
are conscious of the fact that
the learned counsel for the
MHADA had made a statement
before us on 07.08.2017 that the
technical evaluation of the bids
is going on and in any case we
do not intend to stall the
project. If the petitioners
bid satisfies the technical
conditions, his financial bid
can be considered along with the
other three bidders who are
already in the fray.”
4. It is the aforesaid directions
that have been assailed in this appeal by
the Maharashtra Housing Development
Authority.
5. We have heard Shri Dushyant A.
Dave, learned Senior Counsel appearing for
the appellant, Shri Neeraj Kishan Kaul,
learned Senior Counsel appearing for the
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first respondent – writ petitioner and
Shri A.N.S. Nadkarni, learned ASG
appearing for the NIC.
6. The matter lies within a short
compass. The first issue that arises for
a decision is whether the bid document(s)
uploaded by the first respondent – writ
petitioner can be retrieved or is
irretrievably lost. The second issue is
- assuming the bid document(s) submitted
by the first respondent is retrievable,
whether the first respondent would be
entitled to a consideration of the bids
submitted by it on merits as has been
directed by the High Court.
7. To answer the first issue this
Court by order dated 18th January, 2018 has
directed the NIC to file an affidavit to
answer the following query:
“Whether the data uploaded by
the respondent - bidder –
Shapoorji Pallonji & Company
Private Limited, receipt of
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which was not acknowledged on
account of his alleged failure
to press the ‘Freeze Button’,
is irretrievably lost by this
time and cannot be retrieved
under any circumstance?”
8. Pursuant to the aforesaid order
dated 18th January, 2018 the NIC has filed
an affidavit dated 23rd January, 2018
wherein it has been stated that the data
uploaded by the first respondent cannot be
retrieved by the NIC and Maharashtra
Housing Development Authority jointly or
severally under any circumstances in the
present e-Tendering system with prevailing
Government of India Guidelines. In
paragraph 7 of the aforesaid affidavit
dated 23rd January, 2018 the NIC has also
stated as under:
“7. As far as NIC is
concerned it cannot access the
invalid bid documents since it
has neither the keys nor the
approved process to download
the same pertaining to any
packet/envelop/cover. Even
though keys are available with
Maharashtra Housing
Development Authority
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(Petitioner), but even with
that keys the bid documents
cannot be retrieved at this
time as the bid opening event
has already been concluded.
Thus bid documents cannot be
retrieved under any
circumstances from the
e-Tendering system.”
9. The above apart, in the counter
affidavit filed by the NIC it has been
stated that the bid uploaded by the first
respondent was invalid as the
representative(s) of the said respondent
did not press the ‘freeze button’ which
alone would have completed the bid
process. In this regard, the NIC has
further stated that on 27th July, 2017
there was no problem in the server during
the relevant time period and as many as
427 bid documents (pertaining to other
tenders) were uploaded between 1200 hours
to 1300 hours on the said date i.e. 27th
July, 2017. The NIC in its affidavit has
further stated that if the first
respondent had uploaded the documents at
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1216 hours on 27th July, 2017 and it had
not received the bid submission
acknowledgement it still had 44 minutes to
contact the NIC for help which help was
not sought. In this regard, the NIC has
further stated that the first respondent –
bidder had participated in e-Tendering in
Maharashtra Government portal earlier and
thus it was familiar with the entire
process.
10. If the 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
traveling beyond the Government of India
guidelines, should commend to us for
acceptance. The opinion rendered in this
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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 the 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
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favour of the first respondent virtually
confers on the said respondent a second
opportunity which cannot be countenanced.
11. 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 15 of the impugned
judgment/order dated 28th September, 2017.
The same are, therefore, interfered with.
The appeal is allowed accordingly.
....................,J.
 (RANJAN GOGOI)
....................,J.
 (R. BANUMATHI)
NEW DELHI
FEBRUARY 12, 2018

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