Summary
A bidder for a road user fee collection contract that quoted Rs.9,72,999 (in figures and words) in a BOQ column expressly meant for the full 1095-day period, and after financial bids were opened claimed this was a per-day rate, was not entitled to have its bid recomputed so as to make it the highest. The Supreme Court set aside the Division Bench's direction permitting such rectification: the clarification clause in the instructions to bidders could not override the tender's bar on any change to the BOQ, and the High Court had decided the matter without impleading or hearing the H1 bidder.
Issues
- Whether a power of the tendering authority to seek clarification or information during evaluation extends to permitting a bidder to rectify its quoted financial bid after the financial bids are opened, despite a condition that no change in the BOQ template will be accepted.
- Whether the claimed error, quoting a per-day figure instead of the amount for the whole contract period, was an inadvertent mistake capable of correction in the public interest of higher revenue.
- Whether the High Court could grant relief that displaced the H1 bidder without impleading or hearing it.
- The scope of judicial review under Article 226 in tender matters.
Provisions considered
- Article 226, Constitution of IndiaApplying Jagdish Mandal and Afcons, the Court held that writ courts must exercise utmost restraint in tender matters and interfere only on mala fides, intent to favour, arbitrariness or perversity; the employer's reading of its own tender documents deserves deference. (¶¶ 34, 35, 42)
Held
- The clause permitting the notice inviting authority to seek clarification, information or supporting documents during evaluation is meant only for clarifying documents already filed; it cannot be stretched to allow rectification of quoted BOQ rates, which is governed by the tender condition that any change in the BOQ template will not be accepted under any circumstances. The two clauses must be read together. (¶¶ 29, 30, 41)
- The bidder entered the same figure in both figures and words in the column headed as the amount for 1095 days, so its plea of an inadvertent per-day entry could not be accepted; it had been careless, and allowing rectification after the financial bids were finalised would unsettle the whole tender process. (¶¶ 31, 32, 41)
- Following Patel Engineering and ABCI Infrastructures, a bidder that could have corrected its mistake before submission cannot correct it after the bids are opened; adherence to the rules and conditions of a tender is itself in the public interest. (¶¶ 33, 33.1, 36)
- Public interest in commercial transactions is not confined to securing more revenue; the sanctity of the tender process and adherence to its conditions are equally if not more important, and the mere possibility of more money in the public coffers does not by itself serve public interest. (¶¶ 39, 40, 44)
- The H1 bidder was a necessary party to proceedings whose outcome downgraded its status. Although equity and natural justice stay at a distance in tender evaluation, fairness and natural justice are integral to judicial proceedings scrutinising that evaluation; the High Court's failure to implead and hear the appellant vitiated its judgment. (¶¶ 37, 38, 43)
Result
Appeal allowed; the Division Bench judgment dated 23.02.2024 in MAT No. 93 of 2024 set aside; the State authorities free to proceed with and finalise the award of the contract under the notice inviting electronic bid dated 17.10.2023; no order as to costs.