Gauhati High Court

Maksud Ahmed Mazumder vs Food Corporation Of India And 7 Ors on 27 October, 2022

                                                                 Page No.# 1/20

GAHC010179982020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/5308/2020

         MAKSUD AHMED MAZUMDER
         S/O LATE MOHIBUR RAHMAN MAZUMDER
         RESIDENT OF BERENGA PART II
         PO BERENGA PART II, PS SILCHAR, DIST CACHAR, ASSAM 788005



         VERSUS

         FOOD CORPORATION OF INDIA AND 7 ORS.
         HAVING ITS HEADOFFICE AT 16-20, BARAKHAMBA LANE, NEW DELHI
         110001, INDIA AND REGIONAL OFFICE AT PALTAN BAZAR, GUWAHATI
         KAMRUP M ASSAM 781008

         2:EXECUTIVE DIRECTOR

          FOOD CORPORATION OF INDIA
          (HEADQUARTER) 16-20
          BARAKHAMBA LANE
          NEW DELHI 110001. INDIA

         3:THE GENERAL MANAGER
          ENGINEERING

          FOOD CORPORATION OF INDIA
          (HEADQUARTER) 16-20
          BARAKHAMBA LANE
          NEW DELHI 110001. INDIA

         4:THE DEPUTY GENERAL MANAGER
          (CE)
          FCI ZONE OFFICE (NORTH EAST) GUWAHATI 7
          KAMRUP M ASSAM
                                                                     Page No.# 2/20

            5:THE ASSISTANT GENERAL MANAGER (CE)
             FCI. REGIONAL OFFICE
             PALTAN BAZAR
             GUWAHATI KAMRUP M ASSAM 781008

            6:THE AREA MANAGER

             FCI
             DO SILCHAR
             CACHAR


            7:THE MANAGER (DEPOT)
             FCI
             FSD
             RAMNAGAR
             SILCHAR
             DIST CACHAR
            ASSAM

            8:THE JUNIOR ENGINEER (CE)
             FCI
             DO SILCHAR
             CACHAR
            ASSA

Advocate for the Petitioner   : MR. K N CHOUDHURY

Advocate for the Respondent : SC, F C I

BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

For the petitioner :Mr. KN Chowdhury, Sr. Advocate Mr. BJ Ghosh, Advocate

For the Respondents : Mr. BK Singh, SC, FCI

Date of Hearing : 09.06.2022

Date of Judgment & Order : 27.10.2022 Page No.# 3/20

JUDGEMENT & ORDER (CAV)

Heard Mr. KN Choudhury, learned Senior counsel assisted by Mr. BJ Ghosh, learned

counsel for the petitioner. Also heard Mr. BK Singh, learned standing counsel for the FCI.

2. The brief fact of the case:

The respondent FCI invited e-tender on 01.11.2017 for the construction of

Cement Concrete Road proposed to be around 4 numbers of existing Food Storage

Godowns at FSD, Ramnagar, Silchar, Cachar with an estimated cost of Rs.

2,26,10,750/-, which is to be completed within a period of 90 days. The petitioner, a

Class-1 contractor participated in the NIT. The petitioner submitted his quoted bid

value of Rs. 2,38,12,642/-, which was accepted by the respondent FCI through their

letter dated 27.02.2018. Thereafter, the respondent FCI requested the petitioner to

arrange for Design Mix M-30 from any renowned Government Engineering College and

the same was done by the petitioner. Thereafter, NIT, Silchar evaluated the M-30

design mix and submitted the report to FCI on 27.04.2018 but no approval was given

to the petitioner and asked the petitioner for fresh M-30 Design mix from NIT Silchar

and accordingly the petitioner submitted the sample material for evaluation to NIT

Silchar. Again, the respondent FCI vide letter dated 14.12.2018 asked the petitioner for

fresh evaluation of the M-30 Design Mix from NIT Silchar in presence of Junior

Engineer. The respondent FCI again vide letter dated 28.01.2019 asked for a fresh

evaluation report of the M-30 Design Mix from IIT, Guwahati which was received on

20.03.2020. According to the the petitioner, he had made several communications with

FCI for delay in starting of the remaining work due to the non approval of the M-30 Page No.# 4/20

Design Mix, but the respondent FCI vide letter dated 04.03.2020 issued show cause

notice on the petitioner which was replied by the petitioner through his letter dated

13.05.2020, denying the allegations made in the show cause notice and the petitioner

expressed his desire to complete the work in the event the respondent FCI agrees to

enhance 30 % from the quoted rate to restart the remaining works due to the increase

of price of materials in last 24 months, which is beyond the date of completion.

Thereafter, the petitioner filed WP(C) 3907/2020, however, such writ petition was

withdrawn by the petitioner with a liberty to file a fresh petition in order to assail the

termination order dated 08.06.2020 and the petitioner filed fresh writ petition being

WP(C)4856/2020 challenging the impugned final notice dated 08.06.2020, which was

also withdrawn as the respondent FCI issued impugned tender notice dated

20.11.2020 with a liberty to file fresh petition challenging the final notice dated

08.06.2020.Accordingly, the petitioner filed this writ petition.

3. The facts pleaded by the petitioner:

I. On 01.11.2017, Executive Director on behalf of Food Corporation

of India invited e-tender for construction of Cement Concrete Road

proposed to be executed around 4 numbers of existing Food Storage

Godowns at FSD, Ramnagar. Respondent authority accepted the offer of

the petitioner vide letter dated 23.02.2018.

II. On 14.03.2018, the petitioner was requested to execute formal

agreement and take possession of the work site and to start the work

and also asked to arrange for Design Mix M-30 from any renowned

Government Engineering College and on 19.03.2018, a contract Page No.# 5/20

agreement was executed between the petitioner and the respondent

authority.

III. Thereafter, the petitioner submitted petition on 28.04.2018

informing the authority that work site clearly not handed over and it has

affected the WBM and concrete work held up for quite long time and the

work was delayed.

IV. On 18.05.2018, the petitioner again informed the respondent

authority that the work could not be proceeded further due to heavy rain

and vehicle are running in the construction area.

V. Thereafter, the respondent authority received the report of Mix

Design M-30 from NIT Silchar but could not be finalized. And thereafter,

on 22.06.2018, the petitioner requested the respondent authority to

hand over the site for PCC work by making vehicle free zone as WBM

work completed because only scope of work only is PCC work since the

M-30 design is not finalized.

VI. The petitioner was directed to send requisite materials for fresh

evaluation of design mix from NIT Silchar on 25.07.2018. and samples

were sent on 27.07.2018.XIV. A letter was submitted on 30.08.2018

before the respondent FCI for approval of Design Mix M-30 otherwise

work will not progress.

VII. On 08.10.2018, he Asst. General Manager, CE directed the

petitioner to complete the drains and culverts till finalization of Design

Mix M-30.

Page No.# 6/20

VIII. On 06.11.2018, Assistant General Manager, CE extended the

time for completion of work up to 31.12.2018 without informing the

petitioner.

IX. On 14.12.2018, the Assistant General Manager, CE again issued

another letter directing the petitioner to arrange Design Mix M-30. And

thereafter, on 24.12.2018, the without any information to the petitioner

extended the time up to 30.01.2019.

X. On 28.01.2018, the Assistant General Manager, CE requested the

petitioner to supply samples of the materials to be sent to IIT Guwahati

for testing of Design Mix M-30.

XI. Thereafter, the Assistant General Manager, CE without any

information to the petitioner extended the time up to 28.02.2019 on

28.01.2019 and further went on extending the validity period of the

agreement till 30.03.2019 without any consent from the petitioner.

XII. On 09.05.2019, the petitioner submitted letter to disassociate

himself from the agreement as the authority was not approving the

design of M-30 grade mix concrete and also requested to allow him to lift

his T&P machines etc. from the site.

XIII. However, on 23.05.2019, the respondent Assistant General

Manager, CE issues a show cause to which, the petitioner submitted a

reply on 29.05.2019 denying each and every allegation made and

requested for return of PG with interest at prevailing rate.

XIV. The petitioner submitted final bills on 04.07.2019 and requested Page No.# 7/20

for payment. And on 10.08.2019 The petitioner submitted notice under

Clause 25 of the agreement for settlement of disputes along with list of

claims.

XV. On 25.09.2019, the Assistant General Manager, CE refuted the

claims of 30% enhancement of quoted price as requested by the

petitioner on untenable and whimsical grounds and also discarded the

claims made under Clause-25.

XVI. Thereafter, on 04.03.2020, show cause notice was issued to

the petitioner and on 13.05.2020, the petitioner replied to the show

cause notice denying each and every allegation. A final notice was

issued on 08.06.2020 to which, the petitioner replied on 13.06.2020,

interalia taking a stand that the contract agreement has already expired

long before and does not exist anymore as of now.

4. Learned Senior counsel Mr. K N Choudhury appearing for the

petitioner submits as follows:

I. From the facts and record available there is no dispute on the fact that

the execution of the project has been delayed for non-approval of the Design

mix at the end of the respondent employer and not for any fault on the part of

the petitioner inasmuch as in view of such fault on the respondent employer, the

petitioner is entitled for escalation in prices as price of materials has already

increased. Further, delay is also admittedly attributable for non-handing over of

the site. Therefore, the authority could not have issued the fresh tender and it

ought to have allowed the petitioner to complete the work by allowing price Page No.# 8/20

escalation.

II. The termination itself is having no meaning inasmuch as prior to such

termination not only the contract period was over but also the petitioner had

withdrawn from the contract itself and took recourse to the provision of Clause

25 of the contract itself for redressal of the dispute. However same has also

been rejected by a cryptic order. Therefore, the employer is not competent

under the terms of the contract to issue the impugned order and advertisement

and the petitioner is entitled to complete the work with escalated price.

III. The impugned order of debarring the petitioner in participating in

future tender process relating to the work contract is without any reason. The

action of the State and its instrumentality must be supported by a reason and

when such order is not supported by any reason, the action hits at the root of

Article 14 of the Constitution of India and therefore, the impugned order is

liable to be set aside and quashed.

IV. When an instrumentality of the State is a party to a contract, it has an

obligation to act fairly, justly and reasonably which is requirement of Article 14

of the Constitution of India. In the present case, the basic prayer is for quashing

the order whereby, the petitioner is barred from participation in future tender

process relating to the work in question inasmuch as the petitioner had himself

withdrawn from the contract for the reason of delay caused in executing the

contract for the fault of the employer and denial of escalation in price.

V. The action of the respondents in the face of it is arbitrary and

unreasonable resulting in violation of the petitioner's right under Article 14 of Page No.# 9/20

the Constitution of India. In support of such contention Mr. Choudhury relies on

a judgment of the Hon'ble Apex Court in A.B.L International Limited -Vs-

Export Credit Guarantee Corporation of India Limited reported in 2004

3 SCC 553 and the judgment of the Hon'ble Apex Court in Kumari Shrilekha

Vidyarthi, -Vs- State of UP reported in 1991 1 SCC 212.

5. The pleaded case of the respondent FCI can be summarized

as follows:

I. Petitioner's tender was accepted by the FCI at the estimated cost of Rs.

2,26,10,750/-. And On 14.03.2018, the petitioner was asked to take possession

of site and start work.

II. The petitioner submitted report on 27.04.2018 of Mix Design (M30)

wherein Cement consumption per cubic meter was 450 kg.

III. As the first report of design mix M-30 was not in conformity with the

specifications laid down in the contract, therefore, the petitioner on 25.07.2018

was asked to arrange fresh design mix M-30 from any renowned Government

Engineering College.

IV. As the design Mix of M-30, which was carried from NIT Silchar two

times but still the cement consumption was on a higher side as compared with

DSR 2016 items, as such FCI requested the petitioner to provide samples to the

FCI, RO so that FCI can submit to IIT, Guwahati for testing of M-30 design mix.

V. On 23.02.2019, FCI, Silchar requested petitioner again to arrange M-30

design mix from IIT-Guwahati along with detail properties of all constituent Page No.# 10/20

materials. However, the petitioner on 09.05.2019 proclaimed disassociated from

the said agreement and claimed for damages and losses.

VI. The FCI claims that contract is still alive and requested the petitioner to

collect samples for RMC plant for M-30 test. Since the petitioner was not taking

out any effort to arrange design Mix from IIT, Guwahati, the FCI vide its letter

dated 01.07.2019 requested IIT, Guwahati to arrange the Mix design.

VII. In the meantime, on 19.08.2019, the petitioner invoked Clause 25 and

filed list of claims including damages. Thereafter, on 25.09.2019, FCI asked the

petitioner to pursue the IIT-Guwahati to get M-30 design.

VIII. After getting the report from IIT, on 27.01.2020, FCI sent M-30

design to the petitioner and asked to restart work. Again on 06.02.2020, FCI

requested the petitioner to restart the work. On 04.03.2020, FCI issued show

cause notice because of delay and suspension of work by the petitioner. And in

the meantime, on 20.03.2020, FCI submitted full-fledged report of M-30 issued

by IIT, Guwahati.

IX. The petitioner replied to the show cause and agreed to work at

enhanced rate by 30%. As the 30% enhancement is against the provision of

agreement and therefore, action as per agreement was necessary to be taken

against the petitioner.And accordingly issued order impugned in the present writ

petition.

6. The learned counsel for the respondent FCI submits as

follows:

Page No.# 11/20

Mr. BK Singh, learned standing counsel for the respondent FCI submits the

following:

I. Clause 10(A) of the tender agreement says that it is the sole

responsibility of the petitioner to supply the materials for testing at his

own cost.

II. Clause 5 of the tender agreement says about the time and

extension for delay. The respondent FCI refutes that the time of

completion of work was extended solely because of negligence on the

part of the respondent in taking the decision to approve Mix Design M-

30.

III. The present is a contractual dispute and therefore, the writ

Court may not like to interfere with such contractual decision.

IV. The deficiency in performance of the contract as well as

abandoning the contract site and the legality of the reasons thereof

cannot be a subject matter of a writ petition inasmuch as for such

determination evidences are required. Due to inability of the petitioner to

perform the contract, the FCI was compelled to terminate the contract by

the impugned order and had decided not to allow such a contractor to

participate in the tender.

V. It is well settled that dispute relating to the contract cannot be

agitated under Article 226 of the Constitution of India. Mr. Singh, learned

counsel relies on paragraph 6 of a judgment of the Hon'ble Apex Court in

National Highway Authority of India. -Vs- Ganga Enterprises Page No.# 12/20

reported in AIR 2003 SC 3823.

7. Reason and determination:

This Court has given anxious consideration to the submissions made by the learned

counsel for the parties, gone through the materials available on record. The basic

issue for determination is whether this Court should entertain the present writ

petition interfering with the order of termination of the contract and also the

consequential orders and the same are discussed in the following manner.

A. The termination of the contract:

I. The Hon'ble Apex Court while dealing with a difference between statutory

contracts and private contract between private individual and instrumentally of

the State, held in Pimpry Chinwad Municipal Corporation Vs. Gayatri

Construction Company reported in (2008) 8 SCC 172 that if a term of

contract is violated, ordinary remedy is not the writ petition under Article 226 of

the Constitution of India. It was also held that a contract would not become

statutory simply because it is for construction of a public utility and it has been

awarded by a statutory body. It was further held that the dispute relating to

interpretation of the term and conditions of such contract cannot be agitated in a

petition under Article 226 of the Constitution of India, rather it is a matter for

adjudication by a Civil Court or in arbitration, if provided for in the contract. It

was also held that a contract between the parties is a contract in the realm of

private Law.

II. The Hon'ble Apex Court also in catena of decision considered the scope

of exercise of power by High Court under Article 226 of the Constitution of India Page No.# 13/20

in relation to contractual obligation of the State or its instrumentalities with the

citizens in the backdrop of violation of right of citizens under Article 14 of the

Constitution of India. The Hon'ble Apex Court in the case of Ramana Dayaram

Shetty -VS- the International Airport Authority of India reported in AIR

1979 SC 1628 held that modern welfare state which is committed to egalitarian

values and dedicated to the rule of law has to act while awarding contract, under

the Constitutional mandate of Article 14 of the Constitution of India and the

Government cannot act arbitrarily in its sweet will like private individual and the

action of the State must be in conformity with standard or norm which is not

arbitrary, irrational and irrelevant. The Hon'ble Apex Court in the case of Kasturi

Lal Lakshmi Reddy -VS- State of Jammu and Kashmir reported in AIR

1980 SC 1992 held that whatever the activity, a Government is still a

Government and is subject to restrain inherent in its position in a democratic

society and the power of Government cannot be exercised arbitrarily or in an

unprincipled manner. In the case of A.B.L International Limited -Vs- Export

Credit Guarantee Corporation of India Limited reported in (2004) 3 SCC

553, the hon'ble Apex Court held that a writ petition involving serious disputed

question of fact which requires consideration of evidence will not normally be

entertained by a court in exercise of its writ jurisdiction, but there is no absolute

rule that in all cases involving disputed question of fact the parties should be

relegated to a civil suit. It was further held that on a given set of facts if the

State acts in an arbitrary manner even in a matter of contract an aggrieved party

can approach the court by way of writ petition and the writ court, depending on Page No.# 14/20

facts of the said case is empowered to grant relief.

III. Thus law is by now well settled that High Court has a discretion to

entertain or not entertain a writ petition involving contractual disputes, wherein

state or its instrumentality is a party and such discretionary power shall not be

exercised in exclusion of alternative remedies until and unless the action of the

State is arbitrary, unreasonable resulting in violation of the right of a citizen

under Article 14 of the Constitution of India.

IV. It is also a settled proposition of law that in a case of dispute arising out

of a statutory contract, a judicial review under Article 226 of the Constitution of

India is permissible. When an instrumentality of the State acts contrary to public

good and public interest, unfairly, unjustly and unreasonably in its contractual,

constitutional or statutory obligation it really acts contrary to the Constitutional

guarantee under Article 14 of the Constitution.

V. Thus when the dispute arises out of performance or non performance of

contractual liabilities as per the term of the contract and if the allegation and

counter allegations are made regarding violation of terms of the contract, a writ

Court generally shall not enter into the arena of such dispute and rather the

parties should be relegated to the remedy of a civil Court or to any other remedy

that the parties has agreed between them for determination of such disputes,

including arbitration. It is also well settled that when the action challenged

involves exercise of administrative power/executive power, arising out of a

contract, a judicial review under Article 226 of the Constitution of India shall be

permissible inasmuch as exercise of such administrative power/executive power Page No.# 15/20

is not controlled by the term of the contract.

VI. From catena of decision, it can safely be concluded that a writ Court

should not exercise its extra ordinary power in the case of pure contractual

matters/disputes and it can exercise its power when the petitioner can satisfy

the writ court that the remedy is not a private law remedy but a public law

remedy.

VII. Since, the present contract in question is a contract between the

respondent FCI and the petitioner for execution of a work contract and governed

by the terms of the contractual obligations, the considered opinion of this Court

is that such contractual obligation is a matter of private law remedy. The

correctness of satisfaction of the respondent FCI cannot be tested by this court

in exercise of its power of judicial review inasmuch as the reason for such

termination is stated to be violation of the terms of the contract. Therefore, this

Court is not inclined to interfere with the impugned decisions to terminate the

contract.

B. The Advertisement:

I. From different pronouncements of Hon'ble Apex Court ( Tata

Cellular Vs Union of India-1994 6 SCC 651 , Afcons Infrastructure

Ltd. Vs Nagpur Metro Rail Corpn. Ltd. - (2016) 16 SCC 818 , Silppi

Constructions Contractors vs. Union of India and Another - (2020)

16 SCC 489) this court can take judicial notice that there has been a rise in

scrutiny of tender in writ proceedings under Article 226 of the Constitution of

India and almost all tenders are sought to be challenged by way of the writ Page No.# 16/20

petition in a matter of routine. In the aforesaid backdrop, Hon'ble Apex court

has repeatedly held that in certain aspects relating to tender judicial review is

equivalent to judicial restraint. The Hon'ble Apex court has viewed that such

review should relate not to the decision itself but to the decision making

process. It is well settled that the writ court does not have the expertise to

correct such a decision by substituting its own decision for the decision of the

authority.

II. From the aforesaid pronouncements of the Hon'ble Apex court, it

can safely be concluded that the Apex Court has consistently viewed that

judicial review of a decision of public authorities, so far it relates to the award

of the contract, should be limited. It is equally well settled that as the process

of tender involves public authorities, the court does have the authority to

intervene in terms of how a decision, action or process was arrived at.

Therefore, to intervene in such a situation, while making a judicial review of

the action, the court must satisfy that the action of the authority is arbitrary,

irrational, malifide, whimsical or contrary to law, done to favour someone,

done with an ulterior motive, misuses its power or such action has adversely

affected public interest. The court can also intervene, if it is shown that a

condition which is essential is not complied with or which is not essential is

being insisted upon and applying such method contract work is allotted to

some favoured party.

III. From the discussions made herein above the following proposition

of the Law can be summarized:

Page No.# 17/20

a. When a State or its instrumentalities enters into any contract

its conduct should be fair and reasonable and cannot be arbitrary and

unreasonable.

b. When any State action is violative of Article 14, including in

realm of contract, a writ petition shall be maintainable.

c. In case of pure contractual matters such as interpretation and

implementation of a clause in contract cannot be a subject matter of a

writ petition inasmuch as such dispute shall fall within the realm of a

private Law remedy.

d. In case of contract between the State and person aggrieved is

non statutory and purely contractual the rights are governed only by

terms of the contract.

e. When the action impugned is issued in exercise of executive /

administrative power and beyond the scope of the contract, writ court

can exercise its jurisdiction when found to be arbitrary, irrational and

illegal.

IV. Now coming to the challenge to the advertisement, this court is of

the considered opinion that after withdrawal of the petitioner from the

contract and rejection of his claim under clause 25 of the agreement at the

hands of the respondent FCI, the petitioner shall not have any right to

obstruct the respondent FCI proceeding with the tender process. Of course,

the petitioner shall have a right to challenge the decision of the authority

declining the claim of the petitioner under clause 25 of the contract before Page No.# 18/20

the appropriate forum including forum agreed to by the parties under the

contract, which is not a writ court in view of the reasons and settled

proposition of law as discussed hereinabove and being a pure contractual

dispute. As discussed hereinabove, such issuance of tender cannot be open

to judicial scrutiny as invitation of tender is in the realm of contract inasmuch

as the petitioner wants to stall the tender process for the reason of alleged

breach of contract by the respondent FCI. The petitioner in the considered

opinion of this court is left with the option either to take recourse to the

Specific Relief Act and / or Specific Performance of the Contract or is at

liberty to sue for damages. Accordingly, this court is not inclined to interfere

with the tender process already initiated.

C. The decision to debar the petitioner to participate in the tender process:

I. The learned counsel for the FCI has not been able to show any

terms in the contract, which empowers the respondent FCI to debar the

contractor from participating in the future tender process for the same

work, as a penal action, in a situation when the contract in question is

terminated for the alleged fault/ non-performance of the contractor.

Therefore, the action of the authorities in debarring the petitioner from

participating in the future tender process relating to the same work is not

under any term of the contract rather it's an executive/ administrative

decision. And therefore, such action is having public law character. In the

case in hand, as no power is discernable under the contract to debar the

petitioner from the future tender process, passing of the said order Page No.# 19/20

without giving any opportunity of hearing to the petitioner hits at the very

root of Article 14 of the Constitution of India inasmuch as in the given

facts such action is arbitrary and illegal. The same also violates the

petitioner's right under Article 19 (1)(G) of the Constitution of India.

Therefore, this Court is of the unhesitant view that the action of debarring

the petitioner from participating in the future tender process is not

supported by the terms of the contracts and same amounts to denial of

equal protection of law and in violation of principle of natural justice.

Therefore, in the considered opinion of this Court such decision can be

judicially reviewed in exercise of power of this Court under Article 226 of

the Constitution of India and same is liable to be interfered with for being

violative of right of the petitioner under Articles 14 and 19(1)(G) of the

Constitution of India.

II. The decision of the FCI to debar the present petitioners from

participating in the future tender process arising out of the same work,

after termination of the contract cannot be said to be an action in exercise

of any power under the terms of the contract in view of the settled

proposition of law as discussed hereinabove.

8. The directions:

For the reasons discussed hereinabove and the determination made, this writ

petition is disposed of with the following directions:

I. The Prayer for setting aside and quashing the

termination of contract is rejected. The final termination notice Page No.# 20/20

is upheld. The employer, FCI shall be at liberty to continue with

the impugned tender processor it can initiate fresh tender for

the execution of the work in question.

II. The decision to not to allow the petitioner to

participate in future tender process relating to work contract in

question is interfered with and the petitioner shall be permitted

to participate in the tender process, if the petitioner so desires