Delhi High Court
Revalsys Technologies India Private ... vs Land Ports Authority Of India & Anr. on 19 October, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Sanjeev Narula
$~7.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 19.10.2023
% W.P.(C) 11998/2023 and CM APPL. 52083/2023
REVALSYS TECHNOLOGIES INDIA PRIVATE LIMITED
& ANR. ..... Petitioners
Through: Mr. Aditya Dewan, Advocate.
versus
LAND PORTS AUTHORITY OF INDIA & ANR. ..... Respondents
Through: Mr. Vikram Jetly, CGSC with
Ms.Shreya Jetly, Advocate for
respondent No.1.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The instant writ petition has been filed by the Petitioners seeking a
direction to the Respondents to accept the bid of the Petitioners in respect of
Tender Document No. GEM/2023/B/3552190 dated 09.06.2023 ("Subject
Tender") issued by the Land Ports Authority of India ("LPAI" or
"Respondent No. 1")
2. The facts in brief, leading up to the filing of the instant writ petition
are, that on 09.06.2023, LPAI issued the Subject Tender for the work of
"Selection of System Integrator for Design, Development, Implementation
and Operation & Maintenance of Land Ports Management System
„VINIMAY‟" ("the Project") of LPAI. The terms of the Subject Tender
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH W.P.(C) No. 11998/2023 Page 1 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
provided that participants should submit their respective bids by 03:00 PM
on 01.09.2023. The Request for Proposal ("RFP") for the Subject Tender
provided that the bids should be submitted by uploading the concerned file
to the Government E-Marketplace ("GEM" or "Respondent No. 2") Portal.
3. Petitioner No. 1 and Petitioner No. 2, entered into a Consortium
Agreement dated 30.08.2023 for the purpose of submitting their bid in
pursuance of the Tender under the name of "REVALSYS-ENVISION
LPMS" ("Petitioner Consortium"), with Petitioner No. 1 as the lead
member of the Petitioner Consortium.
4. It is stated that on 01.09.2023, i.e., the last day of submission of bids
for the Subject Tender, the Petitioner Consortium sought to submit their bid
via the GEM Portal, however they were unable to do so owing to technical
glitches on the GEM website and the Petitioners were unable to upload the
files, and therefore their bid could not be submitted for no fault on their part.
It is stated that the GEM Portal showed an error that "PDF File format not
supported" despite the fact that it met the specifications provided, with aa
file size of less than 10 MB and not more than 100 pages.
5. On the same day, at 02:30PM, the Petitioners raised with GEM, a
grievance ticket with the description of the issue being "Unable to
Participate In Bid". It is stated that the GEM Helpdesk executive accessed
the Petitioners system remotely through AnyDesk software and the
Petitioners followed his instructions to compress the files, however the issue
was still not resolved.
6. The Petitioners therefore were unable to submit their bid before 03:00
PM on 01.09.2023 and have approached this Court with the following
prayers:
Signature Not Verified
Digitally Signed
W.P.(C) No. 11998/2023
By:BHUPINDER SINGH Page 2 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
"a) Issue a writ of mandamus and/or other order(s) of the
similar nature directing the Respondents to suitably extend the
date for submission/opening of the tender inviting bids vide its
tender document no./ GEM bid number: GEM/2023/b/3552190
issued by the Land Ports Authority Of India, and/or
b) Issue a writ of mandamus and/or other order(s) of the
similar nature directing the Respondents to manually/physically
accept the bid of the Petitioners in respect of the tender inviting
bids vide its tender document no./ GEM bid number:
GEM/2023/b/3552190 issued by the Land Ports Authority Of
India and/or
c) Issue a writ of mandamus and/or other order(s) of the similar
nature directing the Respondent No. 2 to rectify the errors in
the GeM portal and permit the Petitioners to submit their bid
online and direct the Respondents to consider the same for the
process of the tender document no./ GEM bid number:
GEM/2023/b/3552190 issued by the Land Ports Authority of
India; and /or
d) Pass any other/ further order(s) or direction(s) as this
Hon‟ble Court may deem fit and proper in the interest of
justice. "
7. The present case came up before this Court on 13.09.2023 wherein
this Court issued notice based on the claim of the Petitioners that they were
unable to submit the bid on account of technical glitch. It was observed by
this Court that in case the Petitioner‟s plea is not substantiated by the record,
this Court shall impose costs upon the Petitioner.
8. Learned counsel for the Petitioners submits that they were unable to
submit their bid on the GEM Portal before 03:00 PM on 01.09.2023 because
the GEM Portal was not functioning properly and the same was out of their
control. It is submitted that there was inaction on the part of the Respondents
to rectify the technical glitch and the same is an encroachment of their rights
under Article 19(1)(g) of the Constitution of India. It is further submitted
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH W.P.(C) No. 11998/2023 Page 3 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
that the Petitioners have been deprived of their right to participate in the
Subject Tender and present a competitive bid, and therefore should be
allowed to submit their bid and the same should be considered by the
tendering authority.
9. Per Contra, learned counsel for GEM refutes the claims made by the
Petitioners apropos technical glitches on the GEM Portal. He submits that
there were six bidders who had participated in the bidding process of the
Subject Tender and none of these bidders have reported any technical
glitches on the GEM Portal. He further submits that on 01.09.2023, between
01:55 PM and 02:49 PM, the Portal received four bids in respect of the
Subject Tender. He contends that the Petitioners were also trying to submit
their bid during the same time, however no issues were faced by the other
four bidders and they were able to successfully submit their bid online. He
therefore submits that there were no technical glitches on the GEM Portal
during the time when the Petitioners were attempting to submit their bid.
10. It is submitted by learned counsel for GEM that the Petitioners raised
a ticket with GEM helpdesk, to which the helpdesk responded promptly,
however the Petitioners failed to upload screenshots of the issue being faced
by them, and thus the ticket was closed owing to non-receipt of required
details and response from the Petitioners. It is submitted that the Petitioners
called the call centre of GeM Helpdesk and gave remote access of their
system through AnyDesk software, and through this the Helpdesk official
successfully uploaded the files and the issue was resolved and the Petitioner
also confirmed successful upload of the files and the issue was thus resolved
and the call was accordingly disconnected. He furthers submits that the
screenshots shared by the Petitioners show that two (2) out of four (4)
Signature Not Verified
Digitally Signed
W.P.(C) No. 11998/2023
By:BHUPINDER SINGH Page 4 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
documents are uploaded successfully, which further evinces that there was
no technical glitch on the GEM Portal, and the issues faced by the
Petitioners cannot be attributed to GEM.
11. Heard learned counsels for the parties and perused the documents on
record.
12. The facts of the case reveal that as per the terms of the Subject
Tender, the prospective participants were required to submit their bids on
the GEM Portal by 03:00 PM on 01.09.2023. The Petitioner Consortium,
wishing to participate in the Subject Tender tried to submit its bid on
01.09.2023, however some of the documents required to be uploaded could
not be uploaded. As per the screenshot annexed by the Petitioners, while two
documents were uploaded, two documents being submitted by the
Petitioners were crossing the 100 page limit prescribed. Due to the issues
faced by the Petitioners, they contacted GEM to resolve the issue. The GEM
Helpdesk vide a call and the AnyDesk software helped the Petitioners
resolve the issue pertaining to inability to upload certain documents and
accordingly closed the ticket/grievance raised by the Petitioners. However,
even with the assistance of GEM, the Petitioners failed to submit the
documents before the deadline prescribed. Further, during the time period in
which the Petitioners were attempting to submit their bids in respect of the
Subject Tender, the GEM Portal received four other bids with respect to the
Subject Tender.
13. In view of the above, this Court finds it difficult to accept the
contention of the Petitioners that they were unable to submit their bids due
to a technical glitch on the GEM Portal. The fact that the Petitioners were
able to upload some documents but not all documents along with the fact
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH W.P.(C) No. 11998/2023 Page 5 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
that four other bidders were able to successfully submit their bids during the
said time makes it amply clear that the non-submission of bid by the
Petitioner Consortium before the deadline was not due to any technical
glitches on the GEM Portal. The issues faced by the Petitioners, if any, can
only be attributed to the Petitioners themselves and not the Respondents.
Therefore, the failure of the bidder to submit its bid within due time on the
GEM Portal is certainly the fault of the Petitioner itself, and this Court finds
no merit in the allegations levelled by the Petitioner that it was unable to
submit its bid due to technical glitches.
14. A similar question relating to non-submission of bid due to alleged
technical glitches was recently decided by this Court in Jindal Steel &
Power Ltd. v. Union of India, 2023 SCC OnLine Del 4401, wherein the
Petitioner-therein approached this Court alleging that on account of a
technical glitch, it was prevented from proceeding further in the e-auction
process in relation to the allocation of coal mines. This Court in the said
case, after going through the material placed on record, came to a finding
that there was no technical glitch on the bidding portal, and therefore, it
would be improper to grant relief to the Petitioner-therein. The relevant
extracts of the decision in Jindal Steel (supra) reads as under:
"82. A perusal of the material on record shows that at the time
when the auction for Chhendipada (Revised) Coal Mine was
going on, two more auctions - one for Parbatpur Central Mine
(40729) and the other for Datima Mine (40733), were being
conducted on the very same e-auction portal. Material on
record indicates that between 14 : 48 : 09 hrs to 14 : 56 : 09
hrs, i.e. the time period in which the Petitioner faced technical
glitches on the e-auction portal, bidders were able to place
their bids for the other two mines. Bids were received at 14 : 51
: 57 for Parbatpur Central Mine and for Datima Mine bids
were received at 14 : 48 : 13, 14 : 49 : 14, 14 : 54 : 10 & 14 :
Signature Not Verified
Digitally Signed
W.P.(C) No. 11998/2023
By:BHUPINDER SINGH Page 6 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
56 : 10. Since the bidders for two other auctions for coal mines
were about to place the bids, which were being conducted at
the very same time on the very same portal, it cannot be said
that there was a technical glitch in the portal of Respondent No.
3. The Petitioner has not been able to make out a case that
there was a technical glitch across the board on the portal on
which eauctions were being conducted.
83. This Court is of the opinion that in view of the fact that
there was no glitch on the portal of the MSTC, on which the e-
auctions were being conducted, it would be improper to set
aside the result of the present e-auction only on the ground that
the Petitioner was prepared to give a higher bid."
15. Similarly, the High Court of Orissa in Mythri Infrastructure &
Mining India (P) Ltd. v. State of Odisha, 2021 SCC OnLine Ori 2436,
refuted the contention of the Petitioners-therein that it could not submit its
Initial Price Offer ("IPO") on account of technical glitches faced by it. The
relevant paragraphs of the decision in Mythri Infrastructure (supra) are
reproduced as under:
"25. While the Petitioners might contend that their inability to
upload the IPO was for reasons entirely outside their control,
the fact remains that there was no technical glitch on the side of
Opposite Party No. 3. The log enclosed with its counter
affidavit makes it abundantly clear that none of the other
bidders encountered any difficulty in uploading the technical
bid as well as the IPOs. While the log does show that the
Petitioners' three attempts at uploading the IPO prior to 3 PM
on 24th August, 2021 were unsuccessful, this is not conclusive
proof of the technical glitches at the end of the Petitioners
being for reasons entirely outside their control. Even assuming
in this regard in favour of the Petitioners, the fact remains that
they need not have waited till the last minute to upload the IPO.
The tender documents made it clear that Opposite Party No. 3
would not be responsible for any problem at the bidder's end. In
fact, this is the reason why MSTC Limited had offered help to
bidders. The instructions in this regard were specific and read
as under:
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH W.P.(C) No. 11998/2023 Page 7 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
"Attached Documents
After uploading these documents, the bidder shall
have to attach them with the specific tender for the
concerned mine for which it is intending to submit
the Technical Bid. It may be noted by the Bidder
that in case it intends to use the same supporting
document for more than one mine, it does not need
to upload the same document every time. The
supporting document, once uploaded, can be
attached with Technical Bid for multiple mineral
block(s), if desired.
The bidder should note that only a file which is
"attached" with a specific mine(s) shall be
considered during evaluation of the Technical Bid.
Files which are not attached to any mine(s) shall
not be considered for evaluation.
The Bidder should also note that a Bid will be
considered as submitted if and only if the Bidder
has submitted the Initial Price Offer. Only such
Bids will be opened for which Initial Price Offer
has been submitted. It is further clarified that
saving of Technical Bid without saving of the
Initial Price Offer will be treated as non-
submission of bid.
Upon successful submission of Initial Price Offer,
the Bidder shall receive a bid acknowledgment
from the system automatically.
The Bidders may note that the Technical Bid and
the Initial Price Offer submitted online as above
will be encrypted by the MSTC's own software
before storage in the database. This will be done to
protect the sanctity and confidentiality of the Bids
before the actual opening of the same.
The Bidder has an option to edit Technical Bid and
initial price offer as many times as it wishes till the
final submission." (emphasis supplied)
26. In similar circumstances, in Shapoorji Pallonji (supra), the
Signature Not Verified
Digitally Signed
W.P.(C) No. 11998/2023
By:BHUPINDER SINGH Page 8 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
Supreme Court disapproved of the High Court having
interfered and allowed the Respondent therein to participate in
the tender process. In that case, the deadline for submission of
online bids was 13 : 00 hours. Respondent No. 1 had submitted
its proposal at 12 : 16 hours. It was claimed that it pressed the
„freeze button‟ but could not get any acknowledgement. Its bid
was therefore rejected. The system had generated an
acknowledgement for other bidders and therefore it was held
that there was no glitch in the system as far as the host of web
portal i.e. the National Informatics Centre (NIC) was
concerned. The Supreme Court came to the following
conclusions:
"9. If 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
travelling beyond the Government of India
Guidelines, should commend to us for acceptance.
The opinion rendered in this 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 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
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH W.P.(C) No. 11998/2023 Page 9 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
not a valid bid and the directions issued by the
High Court in favour of the first respondent
virtually confer on the said respondent a second
opportunity, which cannot be countenanced.
10. 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 29 of the impugned
judgment/order dated 28-9-2017. The same are,
therefore, interfered with. The appeal is allowed
accordingly."
27. The present case is more or less similar on facts. The Court
is therefore inclined not to accept the plea of Petitioner No. 1
that it should be allowed to participate in the second round of
bidding by requiring the Opposite Parties to accept its IPO,
which would be submitted physically."
16. A Special Leave to Appeal being Appeal (C) No(s). 20851/2021, was
filed against the Order of the Division Bench of the Orissa High Court. The
said Appeal was rejected by the Apex Court vide Order dated 19.01.2023 by
observing as under:
" It is pointed out to us that about 122 bids were received
and uploaded in the server in question on 24.07.2021 upto 3:00
p.m. On the basis of preponderance of probability, the High
Court has rightly arrived at the conclusion that the technical
glitch was at the end of the petitioners.
During the course of hearing, the learned Senior
Advocate appearing on behalf of the petitioners has stated that
the tender qua the 11th block has been cancelled/annulled. This
is disputed by the learned Senior Advocate appearing on behalf
of the State of Odisha. We make no comments in this regard.
Recording the aforesaid, we do not find any good ground
and reason to interfere with the impugned judgment and hence
the special leave petition is dismissed.
Application for impleadment stand disposed of. Pending
application(s), if any, shall stand disposed of."
Signature Not Verified
Digitally Signed
W.P.(C) No. 11998/2023
By:BHUPINDER SINGH Page 10 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
17. It is well settled that the scope of interference by a High Court in
matters of tender, while exercising its jurisdiction under Article 226 of the
Constitution of India, is extremely narrow. The Court ought not to interfere
in such matters unless it is established that the process adopted by the
decision-making authority is mala fide, intended to favour someone,
arbitrary or irrational. In case the decision-making process is just, fair and
reasonable, the writ courts must loathe to interfere with the award of
contracts by the State/Instrumentalities of the State. [See: Tata Cellular v.
Union of India,(1994) 6 SCC 651; Afcons Infrastructure Ltd. v. Nagpur
Metro Rail Corpn. Ltd., (2016) 16 SCC 818; Silppi Constructions
Contractors v. Union of India,(2020) 16 SCC 489; and Agmatel India (P)
Ltd. v. Resoursys Telecom, (2022) 5 SCC 362].
18. In view of the above, this Court does not find any merit in the
contentions and allegations made by the Petitioners. It is difficult for this
Court to come to a finding that the Petitioner Consortium was unable to
submit its bid for the Subject Tender owing to technical glitches on the
GEM Portal. The documents on record make it very clear that that the GEM
Portal was working smoothly on the last date of submission of bids i.e.,
01.09.2023 and during the time when the Petitioners were attempting to
submit their bid. The issues, if any, faced by the Petitioners in submitting its
bid before the bid submission cut-off time can only be attributed to the
Petitioners themselves and the Petitioners cannot seek refuge from its
inability to adhere to the timelines prescribed by alleging the presence of
and / or the occurrence of technical glitches on the GEM Portal. In view of
the aforesaid, this Court finds no merit in the present writ petition and the
same is dismissed.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH W.P.(C) No. 11998/2023 Page 11 of 12
ROHELLA
Signing Date:02.11.2023
11:01:56
19. On 13.09.2023, this Court has issued notice solely based upon the
allegations of the Petitioners that there was a technical glitch due to which
its bid has been rejected. It was further observed by this Court that in case
the petition is dismissed, heavy costs shall be imposed upon the Petitioners.
In the present case, there was no technical glitch - as argued by the
Petitioners, and the allegations made by the Petitioners that they were not
able to submit their bid for the Subject Tender owing to technical glitches on
the e portal, is incorrect and has not been established. Therefore, the petition
is dismissed with costs of Rs. 1,00,000/- to be paid to the Armed Forces
Battle Casualties Welfare Fund within four weeks.
20. With these observations, the petition is dismissed, along with pending
application(s), if any.
SATISH CHANDRA SHARMA, C.J.
SANJEEV NARULA, J OCTOBER 19, 2023 Signature Not Verified Digitally Signed W.P.(C) No. 11998/2023 By:BHUPINDER SINGH Page 12 of 12 ROHELLA Signing Date:02.11.2023 11:01:56