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Showing contexts for: tender revocation in Amr - Dev Prabha vs The Union Of India Through The Secretary on 12 April, 2018Matching Fragments
Clause-14 of Instructions to Bidders provides for revocation of the tender process and is quoted hereunder:
"Revocation of Tender Process: The online evaluation of tender must be performed by the Evaluator with utmost care and diligence. The Evaluator of tender must ensure that the decision of Tender Committee is correctly uploaded on the e-Tendering portal. However, there may be situation when the decision of Tender Committee may have to be changed subsequently on account of a Court's verdict. Also, there may be circumstances when online evaluation of tender is not done correctly due to mistake by the Evaluator or due to technical error in the system, which may lead to cancellation of tender. In order to avoid the cancellation of tender in such cases, the tender process needs be reverted back to appropriate stage (Technical-bid Opening or Price-bid Opening stage) to comply with the Court's verdict or to rectify the error committed by the Evaluator. This provision in the e- Tendering system has been introduced with an objective to abide by the Court's verdict or to ensure that the tender process should not suffer due to mistake committed by an individual or due to any technical error in the system.
Revocation of Tender process back to technical-bid opening stage or Price-bid opening stage from an advanced stage shall be done under the following circumstances:
1. To comply with the directives of Hon'ble Court of Law.
2. If the Evaluator makes a mistake in online evaluation of tender, which is not in line with the Tender Committee decision.
3. If there is an error in the online evaluation of tender due to technical error in the system.
However revocation of tender process will be under the discretion of the BCCL Management."
34. The precedence on the point including those relied upon by the learned counsel for the appellant and the Respondent No. 8 have been comprehensively discussed by the Apex Court in the case of Siemens Aktiengeselischaft and Siemens Limited vs. Delhi Metro Rail Corporation Limited and others [(2014) 11 SCC 288, paragraph-18 to 23].
35. I would like to examine the issue in the light of the challenge made keeping in mind these well settled principles of law laid down by the Apex Court on the exercise of power of judicial review. The present matter relates to award of a work under an instrumentality of the State i.e. BCCL for an estimated value of Rs. 1694.84 crores through online process of reverse auction bidding. The bidders were required to accept unconditionally the User Portal Agreement online, as per Clause-G of the NIT. Bidders were also required to accept the Integrity Pact online, as per Clause-H of tender document. Bidders had to ensure that there should not be any discrepancy between online submission of information and uploading of scanned copy of the documents. Under Clause-8(vi) of the General Instructions for submission of Bid, it was the bidder's responsibility to comply with the system requirement i.e. hardware, software and internet connectivity at bidder's premises to access the e-tender website. Under no circumstances, BCCL would be liable to the bidders for any direct / indirect loss or damages incurred by them arising out of incorrect use of the e-tender system or internet connectivity failures. Price bids were to be submitted by the bidders online. After opening of the Price Bid viz. Clause 9(iv), the system would evaluate each bid by multiplying the quantity with the unit rate quoted for the respective items. The overall quoted lowest price along with the details of rate and amount of each item will be displayed by the system "without disclosing the name of the bidder during Reverse Auction". The lowest bidder had to email a scanned copy of the duly signed filled in prescribed form for Price Bid Breakup (Form-III of Annexure-M) to the service provider within two hours of the conclusion of the auction. The Reverse Auction would stop in case particular bid remains unresponded for continuous 30 minutes between 15:00 hrs. to 18:00 hrs. in the 1 st day and 11:00 hrs to 18:00 hrs in the 2 nd day, as per Clause 9(ix) of the NIT. There was no issue in relation to the bidding process on the 1st day on 04.05.2015. On the 2nd day, the Reverse Auction was to continue from 11:00 hrs and finally stop at 18:00 hrs. Service provider for e-tendering was required to take all necessary steps to ensure smooth and uninterrupted functioning of the same at their end. Bidders were advised to ensure stable connectivity at their end. Service provider or BCCL could not be responsible for any disruption of connectivity or any failure at bidder's end, as per Clause 9(xii). Manual extension of bidding time would not be allowed at the request of the bidder. In case there is any technological or system failure at service provider's end, the bidding will be paused and it will be extended for the period the system remained down. At the end of the bidding, bidder emerging as L-1 will have to produce documents as per Clause- 7(b). If L-1 bidder fails to produce the original documents within a period of five days after the day of Reverse Auction, it would be liable for cancellation of bid / contract and forfeiture of EMD or Performance Security and also for delisting. The General terms and conditions of the NIT, quoted above, provide for revocation of tender process. The online evaluation of tender must be performed by the Evaluator with utmost care and diligence. It further provided that there may be circumstances when online evaluation of tender is not done correctly due to mistake of Evaluator or due to technical error in the system, in that case, it may lead to cancellation of the tender. In order to avoid the cancellation of tender in such cases, the tender process needs to be reverted back to appropriate stage (Technical-bid Opening or Price-bid Opening stage) to comply with the Court's verdict or to rectify the error committed by the Evaluator. This provision in the e-Tendering system has been introduced with an objective to abide by the Court's verdict or to ensure that the tender process should not suffer due to mistake committed by an individual or due to any technical error in the system. Revocation of Tender process back to technical-bid opening stage or Price-bid opening stage from an advanced stage shall be done under the following circumstances:
1. To comply with the directives of Hon'ble Court of Law.
2. If the Evaluator makes a mistake in online evaluation of tender, which is not in line with the Tender Committee decision.
3. If there is an error in the online evaluation of tender due to technical error in the system.
However revocation of tender process will be under the discretion of the BCCL Management.
36. The salient terms of the NIT, quoted in the earlier paragraph and discussed hereinabove, unambiguously show that Reverse Auction Bidding Process should be absolutely secure and pure. The system would be paused only in case of technological or system failure at the service provider's end and would got extended for the period the system remained down. No manual extension of bidding time will be allowed at the request of the bidder, nor service provider or BCCL will be responsible for any disruption of connectivity or any failure at the bidder's end. It is evident from the records that the system was not paused at 12:55 hrs or thereafter till the scheduled close of time on expiry of 30 minutes period from last bid submitted at 12:33:47 hrs till 1:03:58 hrs. It automatically got stopped at a scheduled closure, as reflected from the screenshot taken at 13:03:47 hrs showing the writ petitioner as L-1 and the bid amount quoted by it i.e. Rs. 23454553620.00000000. The date and time of the bid submitted by the appellant before automatic close at the end of 30 minutes period was 05.05.2015 at 12:33:47 hrs. CERT-In's report shows that BCCL had reported to C1 India Pvt. Ltd that bidders have complained that they are not able to submit their bids; C1 India Pvt. Ltd. did not pause running of the Reverse Auction Bidding application which resulted in the start of the Reverse Auction Closure Process automatically at 13:03:47 hrs after 30 minutes of the last bid of the writ petitioner. The conclusion recorded by the CERT-In in its Incident 'Analysis Report' dated 28.12.2015 however showed that during the crucial period from 12.50 hrs to 13:05 hrs, bandwidth available to the bidders was very low and web access logs showed that all the bidders had faced problem in connecting to the server running the web application, which could be due to dual fiber cut, as reported by M/s TCL and also evident from the various graph provided them. Web connectivity problem was severe for three of the bidders including M/s Madhucon Projects Ltd., M/s R.K. Transport Co. (Respondnet No. 8) and M/s Dhansar Engineering Co., while for the other three including the writ petitioner, problem was faced intermittently. Service provider C1 India Pvt. Ltd. was well connected to the server running web application throughout the auction process including crucial period from 12:50 hrs to 13:05 hrs since it was well connected with the server through leased line. It did not face any difficulty at all to connect the server. However, even after receiving complaint from the BCCL about the problem faced by the bidders in submitting their bids, C1 India Pvt. Ltd did not pause the Reverse Auction application running on the server which lead to closure of the bidding process during crucial period. CERT-In opined that it did not find any external interference, manipulation or interruption to the Reverse e-Auction Bidding Application running on virtual server.