Bombay High Court
Nalanda Bahuddeshiya Sevabhavi ... vs State Of Maharashtra, Through ... on 24 March, 2025
Author: M. S. Karnik
Bench: M. S. Karnik
2025:BHC-AS:14450-DB
25.wp.10131-2024 & ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10131 OF 2024
Nalanda Bahuddeshiya Sewabhavi Sanstha, ]
Jalna registered under the provisions of ]
Co-operative Societies Act, 1960 ]
Having its office at Plot No.61, ]
Pangarkar Nagar, Ambad Road, ]
Jalna - 431 213 ]
through its Authorized Representative ]
Mr. Bhaskar Kaduba Shinde, ]
Tel. No.02482-223855 ]
Email Id [email protected] ] ... Petitioner
Versus
1. The State of Maharashtra through its ]
Secretary, Tribal Development ]
Department, Mantralaya, ]
Mumbai - 400 032 ]
Email: [email protected] ]
2. The Tribal Research and Training ]
Institute (TRTI), Pune And Autonomous ]
Institute of Government of Maharashtra ]
Under Tribal Development Department ]
Having its office at 28 Queens Garder, ]
Camp, Pune - 411 001 ]
Through its Commissioner ]
Email : [email protected] ]
3. The Competitive Pre-Examination ]
Training Implementation & Monitoring ]
Committee ]
Through its Chairperson/Commissioner ]
Tribal Research & Training Institute ]
Pune, Government of Maharashtra, 28, ]
Queens Garden, Camp Pune - 411 001 ]
Through its Chairperson - TRTI ]
Email : [email protected] ] .... Respondents
PMB 1
25.wp.10131-2024 & ors.odt
WITH
WRIT PETITION NO. 10132 OF 2024
Anusuchit Jati Jamati Shikshan Sanstha (Regd.) ]
registered under the provisions of ]
Co-operative Societies Act, 1960 ]
Having its office at F 501-502, Tower-2 ]
Seawoods Grand Central Condomium ]
Sector 40, Seawoods, Navi Mumbai - 400706 ]
through its authorized representative ]
Mr. Bhushan Govind Ramteke, ]
Mob. No. 9082102879 ]
Email Id [email protected] ] ... Petitioner
Versus
1. The State of Maharashtra through its ]
Secretary, Tribal Development ]
Department, Mantralaya, ]
Mumbai - 400 032 ]
Email: [email protected] ]
2. The Tribal Research and Training ]
Institute (TRTI), Pune And Autonomous ]
Institute of Government of Maharashtra ]
Under Tribal Development Department ]
Having its office at 28 Queens Garder, ]
Camp, Pune - 411 001 ]
Through its Commissioner ]
Email : [email protected] ]
3. The Competitive Pre-Examination ]
Training Implementation & Monitoring ]
Committee ]
Through its Chairperson/Commissioner ]
Tribal Research & Training Institute ]
Pune, Government of Maharashtra, 28, ]
Queens Garden, Camp Pune - 411 001 ]
Through its Chairperson - TRTI ]
Email : [email protected] ] .... Respondents
PMB 2
25.wp.10131-2024 & ors.odt
WITH
WRIT PETITION NO. 10705 OF 2024
Anusuchit Jati Jamati Shikshan Sanstha (Regd.) ]
registered under the provisions of ]
Co-operative Societies Act, 1960 ]
Having its office at F 501-502, Tower-2 ]
Seawoods Grand Central Condomium ]
Sector 40, Seawoods, Navi Mumbai - 400706 ]
through its authorized representative ]
Mr. Bhushan Govind Ramteke, ]
Mob. No. 9082102879 ]
Email Id : [email protected] ] ... Petitioner
Versus
1. The State of Maharashtra through its ]
Secretary, Tribal Development ]
Department, Mantralaya, ]
Mumbai - 400 032 ]
Email: [email protected] ]
2. The Tribal Research and Training ]
Institute (TRTI), Pune And Autonomous ]
Institute of Government of Maharashtra ]
Under Tribal Development Department ]
Having its office at 28 Queens Garder, ]
Camp, Pune - 411001 ]
Through its Commissioner ]
Email : [email protected] ]
3. The Competitive Pre-Examination Training ]
Implementation & Monitoring Committee ]
Through its Chairperson/Commissioner ]
Tribal Research & Training Institute Pune ]
Government of Maharashtra, 28, ]
Queens Garden, Camp Pune - 411001 ]
Through its Chairperson - TRTI ]
Email : [email protected] ]
4. The Director General ]
National Informatics Center ]
PMB 3
25.wp.10131-2024 & ors.odt
Having its office at Ganesh Khinda Road, ]
ICS Colony, Ashok Nagar, Pune - 411007 ]
Email : [email protected] ]
Website : mahatenders.gov.in ] .... Respondents
****
Mr Nitin Thakker, Senior Advocate a/w Mr B. K. Barve, Mr Sandeep
Barve, Ms Simmy Sebastian, Mr Gaurav Shrivastav, Ms Sonali Patil, i/b.
B. K. Barve & Co., for the Petitioners.
Mrs Neha S. Bhide, Government Pleader a/w Mr O. A. Chandurkar,
Additional Government Pleader, Mrs. G. R. Raghuwanshi, AGP, for
Respondent Nos.1 to 3 in WP/10131/2024 and WP/10132/2024 and for
Respondent No.1 in WP/10705/2024.
Mr D. P. Singh, for Respondent-NIC in all Writ Petitions.
****
CORAM : ALOK ARADHE, CJ &
M. S. KARNIK, J.
DATE : 24th MARCH, 2025
JUDGMENT (Per M. S. Karnik, J.) :
1. These Writ Petitions are disposed of by a common judgment as
common issues arise.
2. Writ Petition No.10131 of 2024 pertains to E-Tender Notice
No.1565 dated 12th June 2024 issued by the Respondent No.2- The Tribal
Research and Training Institute ("TRTI" for short) for empanelment of
physical training-cum-coaching institute for providing non-residential
physical training-cum-coaching for police, military, para-military
examination for target group of TRTI and Babasaheb Ambedkar
Research and Training Institute ('BARTI' for short) in Maharashtra.
25.wp.10131-2024 & ors.odt
3. Writ Petition No.10132 of 2024 pertains to two E-Tender Notices
bearing Nos.1563 and 1565, both dated 12th June 2024 issued by
Respondent No.2. E-Tender Notice No.1563 is for empanelment of
coaching institute for non-residential coaching for National Bank for
Agricultural and Rural Development ("NABARD") (Grade A and B),
Institute of Banking Professional Selection ("IBPS"), SBI, RBI,
Regional Rural Bank ("RRB"), Insurance, LIC and other banking
competitive examinations for the target groups of Sahu Maharaj
Research, Training & Human Development Institute ("SARTHI"),
BARTI and Mahatma Jyotiba Phule Research and Training Institute
("Mahajyoti") in Maharashtra.
4. Writ Petition No.10705 of 2024 pertains to E-Tender Notice
bearing No.1711 dated 26th June 2024 issued by Respondent No.2-TRTI
for empanelment of coaching institute for non-residential coaching for
Maharashtra Public Service Commission ("MPSC") - non-gazzetted
Group B and C services examination for the target group of BARTI and
Mahajyoti and Group C services examination for target group of
Respondent No.2-TRTI in Maharashtra.
5. Mr Nitin Thakker, learned Senior Advocate submitted that all the
Tenders are non-competitive and non-commercial in nature and are only
25.wp.10131-2024 & ors.odt
for technical evaluation of institutes seeking empanelment for providing
coaching for the competitive exams to targeted groups, i.e. SC, ST, OBC
and Maratha students in Maharashtra. The Tender provides for
empanelment/contract for a period of three years, which will include
multiple batches for the scheduled exams held from time to time.
6. In Writ Petition No.10131 of 2024 and Writ Petition No.10132 of
2024, the Petitioners were prevented from submitting their bids before
the deadline of 3rd July 2024, 5:00 p.m. (17:00 hours) due to an error,
namely, "JAVA HEAP SPACE" on the Mahatender website portal, which
the support staff also could not resolve even after taking access of the
Petitioners' computer. Therefore, the Petitioners in both Writ Petitions
submitted their bid documents by emails. The Petitioners seek a direction
from this Court against the Respondents to consider their bid documents
for determining their eligibility and empanelment for the upcoming
exams.
7. In Writ Petition No.10705 of 2024, the support staff was able to
assist the Petitioner for successfully uploading the bid document on time.
However, there was a miscommunication between the Petitioner and the
support staff who assured the Petitioner that the bid is successfully
submitted without informing the Petitioner that the Petitioner has to
25.wp.10131-2024 & ors.odt
follow the step of freezing the bid on the portal. Accordingly, the
Petitioner in Writ Petition No.10705 of 2024 also seeks a direction from
this Court to consider the bid documents submitted by emails for
determining its eligibility and empanelment for the upcoming exams.
8. A few relevant facts need a reference. A Government Resolution
dated 30th October 2023 was issued framing a comprehensive policy to
bring uniformity in the various schemes of pre-competitive examination
training program in the State of Maharashtra. E-Tender No.1565 was
issued by the Respondent No.2-TRTI which provided that the Expression
of Interest ("EOI") is for single bid system - technical bid and the
coaching institute shall be empanelled based on technical evaluation
only. The bidders had to submit all the required documents by online
submission only. The conditions stipulated that the bid document will be
available on the website and the interested bidders will have to register
and enroll on the said website. EMD of Rs.2,00,000/- and non-
refundable Tender fee of Rs.20,000/- was required to be deposited
online. The complete bid was available on the website for the purpose of
downloading. The downloaded bid document was considered to be valid
for participation in the electronic bid process (e-tendering) subject to the
submission of online bid and online payment of Tender fee and EMD.
25.wp.10131-2024 & ors.odt
9. To participate in online bidding process, the tender document
provided that the bidder must procure a digital signature certificate as per
Information Technology Act, 2000 using which they can digitally sign
and encrypt the electronic bids. Certain key dates were provided for
E-Tender. The said Tender aimed to cater a total of 26,000 candidates.
10. The relevant conditions of the bid document, significant to the
controversy, are Clause 1 which provided for the bid process and states
that the bidder has to submit a bid online in one envelope system
containing technical bid. Clause 14 provides for submission of bids and
states that the bidder should submit the bid online, which shall comprise
of a single envelope (single envelope system should be followed for the
bid). Clause 15 provides for specifications of the technical bid. Clause 21
provides that there is no need to submit commercial bid as the sanctioned
amount per student is Rs.50,000/-. Clause 24 provides for evaluation of
technical bids and provides that the Respondent No.3-The Competitive
Pre-Examination Training Implementation & Monitoring Committee
("Committee" for short) may seek written clarification from the bidders
any time during the bid evaluation process. Clause 24 provides for
empanelment of coaching institutes by award of contract on obtaining at
least 60% marks in technical evaluation. The successful bidder was
required to enter into a separate MOU with respective organisations.
25.wp.10131-2024 & ors.odt
11. The Petitioner participated in the pre-bid meeting held on 24th June
2024. In the pre-bid meeting at Sr. No.33, it was clarified that all bids
uploaded will be visible. The Petitioner paid the EMD and Tender fee
aggregating to Rs.2,20,000/-. The Petitioner's bid for another E-Tender
No.1563 (subject matter of Writ Petition No.10131 of 2024) was
confirmed at 4:37 p.m. (16:37 hours) with the packet/file size of 100882
kb (100.22 mb). The Petitioner attempted to submit the bid with all
documents on the portal between 2:00 p.m. to 4:45 p.m. on 3rd July 2024.
However, the system persistently displayed an error viz. "JAVA HEAP
SPACE". At 14:43 hours, 16:30 hours, 21:27 hours and 21:31 hours. The
Petitioner's representative contacted the technical support staff on their
online portal and requested the support staff to assist the Petitioner to
submit their documents. Between 14:43 hours till 16:45 hours, the
support staff took access of the Petitioner's computer through an
application called "Any Desk" and tried to deal with the error. However,
the exercise did not fructify and the Petitioner was deprived of
submitting the bid.
12. At this stage it is pertinent to note that the National Informatics
Centre ("NIC") in its affidavit dated 13th August 2024 at paragraph 4
confirmed that the Petitioner had made three calls before the deadline
and two calls after the deadline and also has provided transcripts of the
25.wp.10131-2024 & ors.odt
conversation between the Petitioner and the Help Desk. The
transcriptions of the confirmation confirm that the Petitioner's computer
was accessed by 'Any Desk Application'. However, the Help Desk was
unable to resolve the issue.
13. The Respondents have produced an hour-wise report of 3rd July
2024 showing number of bids uploaded, total size of bid document,
number of logins etc. By an email dated 4 th July 2024 to the Respondent
No.2, the Petitioner recorded that it was unable to upload the bid due to
the problem on site and requested for assistance. By a letter dated 5 th July
2024 the Petitioner requested that it should be allowed to submit its bid
and all documents as the same could not be submitted due to technical
error which was beyond the Petitioner's control and since the tender is
not commercial and is purely technical for determining the eligibility, no
prejudice will be caused to any bidders or to the Respondents.
14. By emails addressed to the Respondent No.2, the Petitioner on 6 th
July 2024 and 10th July 2024 submitted its bid documents in parts as
emails have restriction of maximum file size of 25 MB. Writ Petition
No.10131 of 2024 was filed on 10th July 2024.
15. The Respondent No.2 issued a Notification on 22 nd July 2024
requesting the bidders to submit additional/shortfall documents by email
25.wp.10131-2024 & ors.odt
in variance of the tenders. The Respondent published Notification on
22nd July 2024 intimating the date scheduled between 30th July 2024 and
1st August 2024 for one Common Entrance Test Exam.
16. This Court vide order dated 24th July 2024 directed the Respondent
to bring on record the conversation which took place between the
Petitioner and the Help Desk while the Petitioner was uploading its bid
and faced technical glitches. The support team on 27 th July 2024 replied
to the Respondent No.2 as regards the Petitioner's grievance and gave a
link which inter alia stated that there is no limit on the file size and the
upload is decided on memory available at the client side as well as the
network bandwidth available at the client's side at that point of time and
the tender authority will not be held responsible for any sort of
difficulties faced during submission of bids online due to local issues.
The Respondents in their reply have also relied upon the guidelines for
"hassle free bid submission" published on the Mahatender website which
provides that the bidder will be held responsible for non-submission of
bids within the due time and sometimes the submission of documents
required to increase Local JAVA Runtime.
17. This Court vide its order dated 1st August 2024, 6th August 2024
and 7th August 2024 directed the NIC to bring on record the transcripts of
25.wp.10131-2024 & ors.odt
the conversation between the Petitioner and the Help Desk. On 19th
August 2024 this Court in all these Writ Petitions ordered that any
further decision taken by the Respondents in respect of the subject
tenders, shall be subject to further orders, which may be passed in these
Writ Petitions. This Court directed that the Department of Computer
Science, Indian Institute of Technology, Bombay to appoint a faculty
member to prepare a report in respect of the three Writ Petitions giving
his opinion, as to whether the Petitioners were prevented from
participating in the bid process for which whether the Petitioners or the
Respondents are responsible. This Court further directed that the expert
should throw light on whether the third possibility is also possible where
neither the Petitioner nor the Respondent can be held responsible.
18. Before we proceed to deal with the report dated 6 th September
2024 submitted pursuant to the orders passed by this Court, let us bear in
mind the stand of the Respondents. Learned AGP vehemently submitted
that this is not a case of technical glitch which prevented the Petitioners
from bidding, but this was a complete lapse on the part of the Petitioners
in failing to upload the bid documents within the stipulated time. It is
further submitted that the Petitioners have participated in several tender
processes and therefore are aware of the requirements when it comes to
submission of bids online. If the computer belonging to the Petitioners
25.wp.10131-2024 & ors.odt
did not have the capacity to upload the bid, then the fault squarely lies
with the Petitioners and this cannot be said to be a case of technical
glitch. It is further submitted that if at this stage the Petitioners' bid
documents are to be evaluated, this will seriously prejudice those who
have successfully uploaded their bids and moreover as successful bidders
have already been declared and even one examination has been held. It is
therefore submitted that the Writ Petitions should be dismissed. Our
attention is also invited to the affidavit in reply filed on behalf of the
Respondents opposing the Writ Petitions.
19. Coming back to the report dated 6 th September 2024 pursuant to
the directions of this Court dated 19 th August 2024 submitted by
Mr Bhaskar Raman, Professor, Department of Computer Science,
the Technical Assessment at Section C of the Report, in respect of Writ
Petition No.10131 of 2024 and Writ Petition No.10132 of 2024 is
relevant which needs to be reproduced reading thus :-
"(i) Java Space Heap Error appears due to combination of three
conditions: (a) size of the file being uploaded being too huge, (b)
memory available in the bidders' computer, (c) Java software version at
the bidders' end is incorrect.
(ii) In respect of WP 10131, the issue appears to have been a
combination of file size and memory available and possibly the Java
software version at bidders' end.
(iii) In respect of WP 10132, the support call helper address the issue
by asking to reduce file and also mention that the Java software version
is possibly incorrect.
25.wp.10131-2024 & ors.odt
(iv) Therefore, the above issues are primarily at bidders' end
computer. It cannot be called as bidders' fault as such, but it is more of
an instance of lack of anticipation of possible technical hurdles in the
submission process, combined with lack of knowledge of how long it
may take to resolve these hurdles.
(v) Last minute rush could have been avoided by uploading a
dummy bid document ahead of deadline.
(vi) The instructions for the technical aspects of the bid submissions
are fairly clear. There is some scope for further improvement, which is
mentioned in Section F of the Report.
Section F provides for technical suggestions for future in respect of WP
10131 and WP 10132: That submission of uploading dummy document
of similar size of final document should be included in the guidelines
and the same computer should be used to upload the final document.
In summary at Section G for WP 10131 and WP 10132, the expert
opines that there is no specific fault attributable to the bidder, but it
appears to be a cause of lack of anticipation of possible technical
hurdles during the submission process."
20. The Petitioners on their part provided a technical report by Mr
Krantikumar Deshpande, Associate Director of LTI Mind Tree, Mumbai
which deferred with the opinion given by Mr Bhaskar Raman. The
technical assessment of the Petitioner's expert is in the following terms :-
"(i) The "JAVA HEAP SPACE" is not a generic error commonly seen
on any website and the exact issue behind it can be identified by the
technical experts who had developed the software and in many cases,
program debug and/or access to error logs will be required to identify
exact issue, which cannot be accessed on browser's.
(ii) Third party expert cannot understand the exact issue behind such
a message. End users will not be in a position to understand the
meaning of the error at their end. The screenshot shows that the error
message is not from client's system.
(iii) "JAVA HEAP SPACE" message does not resonate with IT
standard norms and does not convey the exact issue, warning, help
message for the end user.
25.wp.10131-2024 & ors.odt
(iv) The Mahatender website does not mention JAVA HEAP SPACE
issue and its resolution. All application-generated messages that block
the end user process should have a resolution in the FAQ section or the
Help section as per standard practice, which seems lacking on the
portal.
(v) NIC on Affidavit has clarified that there is no limit for the file
size for upload.
(vi) The error impacting end users, which is critical in nature,
becomes a candidate of high severity. Since the issue was time
sensitive and impacted the Petitioner's bid process, this is a high
severity defect."
21. Having regard to the narrative above referred, it is important to
bear in mind that in the pre-bid meeting, it was clarified that all bids
uploaded will be visible to all. This clearly indicates that it was not a
competitive bidding tender. The tender was for the purpose of
empanelment which provides for empanelment of coaching institutes by
award of contract on obtaining at least 60% marks in technical
evaluation. There was no maximum limit on the number of
empanelments and the empanelment is location specific. On the basis of
the documents there was to be an evaluation of the technical bids. All the
tenders are non-competitive and non-commercial tenders and are only
for technical evaluation of institutes seeking empanelment for providing
coaching for the competitive exams to targeted groups. This
empanelment is for a period of three years, which will include multiple
batches for the scheduled exams held from time to time. It is ultimately
for the students to choose the institute. As indicated earlier, such
25.wp.10131-2024 & ors.odt
empanelment is to be on the basis of the documents submitted which are
required to be evaluated by the Committee before empanelment.
22. The materials on record clearly demonstrate that the Petitioners
were making every possible attempt to upload the bid documents. Even
if we go by the opinion of the report of the expert Mr Bhaskar Raman,
the report reveals that there was a Java Space Heap Error due to
combination of some factors viz. size of the file uploaded being too
huge, memory available in the bidders' computer and Java software
version at the bidders' end is incorrect. The Petitioner sought help from
the Help Desk and the issues which arose were primarily at the
Petitioners' end computer. However, the report further says that it cannot
be called as bidders' fault as such, but it is more of an instance of lack of
anticipation of possible technical hurdles in the submission process,
combined with lack of knowledge of how long it may take to resolve
these hurdles. There have been suggestions about last minute avoidance
of rush by uploading a dummy bid document ahead of the deadline.
Moreover, Section F of the report makes suggestions for future
improvements.
23. This is a case where the Petitioners were doing its best to upload
the document but could not anticipate the possible technical hurdles
25.wp.10131-2024 & ors.odt
during the submission process. They sought help from the Help Desk
before the bid time was over. All the documents were in fact emailed to
the Respondents. In such circumstances though this may not be a case of
technical glitch from the Respondents side, but the circumstances on
record coupled with the fact that the tenders are non-competitive and
non-commercial and are only for technical evaluation of institute seeking
empanelment for providing coaching, we are constrained not to adopt a
technical approach in this matter. The choice whether to opt for an
empanelled institute is with the students who want to undergo the
training. Even otherwise the empanelled institutes have to be technically
evaluated pursuant to which they can be empanelled. In such a case it is
in the interest of students that they get a broad based choice as regards
the institute they want to opt for. There is no question of prejudice to any
institute as this is not a commercial tender and moreover the training is
in batches for new students for a limited duration as a result of which
even if the bid documents of the Petitioner are considered at this juncture
there will be no prejudice to anyone.
24. In our opinion this is surely not a case where relief should be
denied to the Petitioners only because the bid documents could not be
uploaded before the deadline having regard to the overall facts and
circumstances on record. The decision in Maharashtra Housing
25.wp.10131-2024 & ors.odt
Development Authority vs. Shapoorji Pallonji and Company Private
Limited and Others1 relied on by Mr Chandurkar, learned Additional
Government Pleader has no application in the present facts as the same is
rendered in a fact situation where there was omission on the part of the
bidding party to press the 'freeze button' and as there was no technical
glitch in the system, amply demonstrated by the acknowledgments
generated in favour of other bidders, the bidding party was not held
entitled to any consideration of its other defective bid. In the facts of that
case it was found that the circumstances strongly indicated that the bid
submitted by the bidding party was not valid. Present is a case where the
tender is not commercial and it is purely technical for determining the
eligibility. Moreover, the NIC in its affidavit dated 13 th August 2024 had
confirmed that the Petitioner had made three calls before the deadline
and two calls after the deadline and also has provided transcripts of the
conversation between the Petitioner and the Help Desk.
25. We may refer with profit the observations of the Delhi High Court
in paragraph 21 of the decision in Birla Ericsson Optical Ltd. and
another vs. Bharat Broadband Network Ltd.2. Paragraph 21 reads
thus :-
1 (2018) 3 SCC 13
2 2013 SCC OnLine Del 2541
25.wp.10131-2024 & ors.odt
"21. As a matter of law, there can be no two opinions that tender
conditions bind both the state agency which invites bids for goods and
services, as well as the potential supplier of those goods and services, i.e.
the tenderer/bidder. (Ref G.J. Fernandez v. State of Karnataka; State
(NCT of Delhi) v. Sanjeev. Yet, Courts have had occasion to deal with
the question whether all conditions are to be strictly complied, or are
there some which are merely ancillary, and inessential and whose non-
compliance cannot be reasonably considered as fatal to the tender or bid
as to warrant its rejection on that score. This issue was dealt with in
Poddar Steel, where the Supreme Court held that:
"... As a matter of general proposition it cannot be held that an
authority inviting tenders is bound to give effect to every term
mentioned in the notice in meticulous detail, and is not entitled
to waive even a technical irregularity of little or no significance.
The requirements in a tender notice can be classified into two
categories those which lay down the essential conditions of
eligibility and the others which are merely ancillary or
subsidiary with the main object to be achieved by the condition.
In the first case, the authority issuing the tender may be required
to enforce them rigidly. In the other cases, it must be open to the
authority to deviate from and not to insist upon the strict literal
compliance of the condition in appropriate cases...."
A similar approach was indicated in IRCTC v. Doshion Veolia Water
Solutions (P) Ltd.; there the omission to mention the figure of excise
duty in the bid was held to be not in respect of an essential condition as
to warrant rejection of the tender."
27. Drawing support from the observations of the Delhi High Court
we may only observe that this cannot be a case where there is any breach
of the essential conditions of the tender document. The Technical
Committee will evaluate the bid. It is just that the circumstances on
record in our opinion make out a case for the Petitioner's empanelment
by giving an opportunity to the Petitioner to effectively participate in the
tender process even at this stage as there is no prejudice to any of the
parties.
25.wp.10131-2024 & ors.odt
28. For the reasons aforestated Writ Petition No.10131 of 2024
deserves to be allowed and is accordingly allowed. The Petitioner having
paid the requisite EMD and process amount, the Respondents are
directed to accept the documents of the Petitioner by granting an
opportunity to the Petitioner to submit remaining documents and due
compliance under E-Tender Notice within a period of one week from the
date of receipt of this order so as to consider the Petitioner's bid for
evaluation.
29. So far as Writ Petition No.10132 of 2024 is concerned the facts are
almost identical as Writ Petition No.10131 of 2024. Writ Petition
No.10132 of 2024 is therefore disposed of on the same terms as Writ
Petition No.10131 of 2024.
30. As regards Writ Petition No.10705 of 2024, some facts need to be
stated. The E-Tender No.1711 was issued by the Respondent No.2 with
identical terms and conditions on 26th June 2024. The EMD and tender
fee aggregated to Rs.5,25,000/-. Amongst the key dates provided for the
E-Tender, the bid submission end date was 18 th July 2024 at 17:00 hours.
The technical bid opening was to be on 19th July 2024 at 17:00 hours. On
13th July 2024 the Petitioner paid the EMD amount and transfer fee
aggregating to Rs.5,25,000/-. The Petitioner successfully submitted the
bid document on the portal and the portal reflected the message
25.wp.10131-2024 & ors.odt
"UPLOADED SUCCESSFULLY (100%)" on 16 th July 2024. A further
message was reflected on the portal stating "PACKET BID
DOCUMENT SUBMITTED SUCCESSFULLY".
31. The above submission of the bid documents on 16 th July 2024 was
through the support staff who had taken access of the Petitioner's
computer through "Any Desk" app and was on a phone call with the
Petitioner from 12:23 hours for about 14 minutes. The support staff had
assured the Petitioner that the bid document is successfully uploaded
without informing and/or without himself freezing the Tender bid. The
Respondent No.4-NIC has filed an affidavit dated 13 th August 2024 and
has confirmed that two calls were made by the Petitioner and has
provided the transcripts of the conversation between the Petitioner and
the Help Desk. It was noticed that the Petitioner's name did not appear in
the list of active bidders on 22nd June 2024. Accordingly, by three emails,
the Petitioner submitted its bid documents to the Respondent No.3. The
Petitioner submitted the screenshot of the email in respect of the portal to
show the successful submission of the bid documents on 23rd June 2024.
On 22nd July 2024 the Respondent No.3 started scrutinizing the technical
bid and have intimated the communications with the bidders whose bid
documents have shortfall and/or certain minor deficiencies for
compliance of the same in view of the Government Resolution dated 1 st
25.wp.10131-2024 & ors.odt
December 2016.
32. The Petition was filed on 23 rd July 2024. The Respondents filed
their first affidavit on 5th August 2024 wherein it relied on the "special
instructions to the contractors/bidders for e-submission of the bids
online" and published by NIC support team which mentions that the
bidder has to click on the freeze bid button to ensure the completion of
the bid submission process. The NIC filed it's affidavit on 13 th August
2024 contending that the Petitioner has successfully participated in eight
Tenders in the e-procurement portal and acknowledgment has been
successfully generated by the Petitioner for the same from the system,
which indicates that the Petitioner is fully aware of clicking on "freeze
bid" button to complete the bid submission process.
33. It is pertinent to note that in the report dated 6 th September 2024
submitted by Mr Bhaskar Raman pursuant to the order dated 19 th August
2024 passed by this Court, Section D of the report provides for Technical
Assessment in the present Writ Petition and had reached a finding that
there has been a miscommunication between the bidder and technical
support helper. The bidder understood it to mean that the entire process
is completed. However, the instructions given to the bidder on the
website is clear that the bidder has to press the freeze button. The expert
25.wp.10131-2024 & ors.odt
has given his suggestions for the future in Section F stating that in view
of the misunderstanding in communication between the bidder and the
NIC technical support, after the bid document is uploaded, NIC software
should not merely stop with saying "PACKET BID DOCUMENT
SUBMITTED SUCCESSFULLY" but it should immediately indicate
"FREEZING IS STILL PENDING". This will avoid misunderstanding in
future, especially for technically non-savvy users. Section G in the
summary no doubt provides that the bidder should have read the written
instructions clearly regarding "FREEZE BID" in the step prior to the
attempt to upload the bid.
34. Thus, the report of the expert appointed by this Committee clearly
mentions that there is a scope for improvement in the process in future.
We appreciate that the Petitioner was experienced in the matter of E-
Tender process having participated several times in the past. In ordinary
course we would have taken a different view of the matter having regard
to the objection of the Respondents. The fact remains that the Petitioner
did take the help of the support staff of NIC and the possibility of the
communication gap cannot be ruled out considering the materials on
record. It cannot be conclusively said that the entire fault is of the
Petitioner. In any case the observations made by us in Writ Petition
No.10131 of 2024 as regards the present tender being not a competitive
25.wp.10131-2024 & ors.odt
bidding tender and that as ultimately this tender is only for the purpose
of empanelment of physical training-cum-coaching institute, the choice
of enrollment for which is with the students, the present case needs to be
viewed differently. The default will have to be regarded as technical not
violating the essential conditions of the tender. The present Writ Petition
will have to be decided in the contextual facts of this case and
accordingly we have no hesitation in allowing Writ Petition No.10705 of
2024 on the same terms as Writ Petition No.10131 of 2024. The Writ
Petition No.10705 of 2024 is accordingly allowed and disposed of.
35. There shall be no order as to costs.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
