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11. The Hon'ble Supreme Court had also examined a similar issue in ABCI (supra), which is closer to home than Omsairam (supra).
12. In ABCI (supra), the appellant, instead of submitting a figure of Rs.1569,00,00,000/- had quoted Rs.1,569/- only as its bid amount against the estimated project cost of Rs.15,04,64,00,000/-. The bid security amount of Rs.15,04,64,000/- in the form of bank guarantee was also furnished by the appellant. It was stated that the appellant had discovered its mistake only on the date when financial bids were opened, i.e., 24.08.2023. Immediately on 25.08.2023, the appellant informed the tendering authorities that its bid ought to have been Rs.1,569/- crores instead of Rs.1,569/- and attributed the same to a typographical mistake or critical system error and urged that it was a patent error and a mistake, given the scale and nature of the work tendered. The tendering authority, i.e., the Border Roads Organisation (hereafter "the BRO"), called upon the appellant to justify the quoted amount by 31.08.2023. On 30.08.2023, the appellant reiterated their intended bid was Rs.1569 crores and by the letter dated 07.09.2023 requested that the appellant may not be considered as L-1 bidder and the bid security amount be released without encashment. Unfazed, the BRO communicated with the State Bank of India, the appellant's banker, that the appellant is a defaulter and the bid security be forfeited by encashing the Bank Guarantee furnished by the appellant.
13. The writ petition preferred by ABCI (supra) was dismissed by the jurisdictional High Court. The dismissal was assailed before the Hon'ble Supreme Court which posed itself a question as to whether the BRO, (i) was justified in accepting the bid of Rs.1,569 and; (ii) on the failure of the appellant to execute the agreement, ask for forfeiture of the bid security by encashment of bank guarantee. The law, succinctly stated in ABCI (supra), needs to be emphasised by extracting relevant paragraphs. The same read thus:
11. On 7-9-2023, the appellant sent another letter stating they should not be considered the L1 bidder, and the bank guarantee of Rs 15,04,64,000 may be returned to them without encashment.
12. On 12-9-2023, the appellant again wrote emphasising that the bid was an error and that the bid security should not be forfeited.
13. Vide letter 16-9-2023, BRO, unmoved, wrote to the appellant's bank, State Bank of India, stating that the appellant had been declared a defaulter, and their bid security was to be forfeited. The bank was asked to encash the bank guarantee and remit Rs 15,04,64,000 to BRO.
Apart from concurring with the principles laid down in Omsairam (supra), the doctrine of proportionality was also applied to mitigate the hardship which the appellant would face by forfeiture of Rs.15.64 crores and directed the appellant to pay to BRO a sum of Rs.1 crore for its error.
14. Principles being clear, when we examine the facts obtaining in the present case, we find that the petitioner had to enter the bid amount in two boxes, one in "figures" and the other in "words" as per the tender condition. Though in the "figures" column, the petitioner had filled in the correct amount, i.e., Rs.1220,00,00,000/-, however, in the "words" column the petitioner entered "Rupees One Thousand Two Hundred Twenty only" and inadvertently omitted the word "crores". It also claimed that this mistake was discovered only when the financial bids were opened on 25.03.2025. Undisputedly, vide the communication dated 26.03.2025, the petitioner had informed the NHAI of the bonafide error and requested that the words "crores" may be read in the "words" column so as to align it with the bid quoted in "figures". In fact, the petitioner stood by its original bid and indicated that it was ready to execute the works in terms of the tender. The NHAI on the other hand, while accepting the bid vide communication dated 25.03.2025 at "Rupees One Thousand Two Hundred Twenty only" did not even consider as to whether such bid amount was feasible, given the magnitude of the project. It did not even ask the petitioner for justification, as was done by BRO in ABCI (supra). Infact, unlike ABCI (supra), the case of the petitioner is at a better footing for the reason that the ABCI sought withdrawal of its bid after discovery of the error, while the petitioner is willing to go ahead and execute the contract and the project in terms thereof.