Indian Kanoon - Search engine for Indian Law

In course of argument, various submissions have been made by the learned Senior Counsel for the parties. While, it is the submission of Mr.Saran, learned Senior Counsel that there are possibilities of interfering with the information furnished by the petitioner in its financial bid and the respondents may come to know about the price disclosed in the financial bid, it is the submission of Mr.Upadhyay and Mr.Sahi, learned Senior Advocates at the Bar that the 'E-Portal' is security compliant. Reference has also been made to certain frequently asked questions to show that the documents uploaded on the web-site are in encrypted form and unless those are de-crypted and made in readable form after opening of the technical bid, nobody can read it and come to know about its contents thereof. It is also pointed out that the moment anybody would open the bid document of the petitioner, the system will automatically generate an information which will first go to the petitioner showing that his bid Patna High Court CWJC No.4681 of 2019 dt. 30-04-2019 document has been seen by somebody. There is no such allegation in the writ petition according to learned Senior Advocate for the respondents. Mr. Saran, learned Senior Advocate has in course of argument relied upon the Judgment of the Hon'ble Bombay High Court in case of G.K. Transport Company vs. Western Coalfield Limited to submit that there was an identical Clause in the bid document in the said case whereunder the employer could have modified the bid document by issuing addenda before the deadline of the submission of the bid but when the employer extended the time after the deadline for submission of bids the Hon'ble Bombay High Court did not approve the same. The learned Senior Counsel has also relied upon the Judgment of the Hon'ble Supreme Court in the case of Maharashtra Housing Development Authority vs. Shapoorji Pallonji & Company Private Limited and Ors. reported in 2018 (3) SCC Page 13 to submit that in the said case the time for submission of bid was extended by the employer which was permitted by the Hon'ble High Court but when the Judgment of the Hon'ble High Court was challenged before the Hon'ble Supreme Court the Hon'ble Supreme Court after obtaining a report from the service provider i.e. NIC found that there was no technical glitch in the system and for that reason the Hon'ble Supreme Court took a view that in absence of any technical glitch in the system if the time was extended by the employer contrary to the terms and conditions of the tender then such extension cannot be approved and Patna High Court CWJC No.4681 of 2019 dt. 30-04-2019 the Judgment of the Hon'ble High Court was set- aside.

45. Referring to the logs/audit trail report brought on record with the affidavit of respondent no.5 learned senior counsel submits that the affidavit has clearly disclosed that the service Patna High Court CWJC No.4681 of 2019 dt. 30-04-2019 provider was contacted at Shimla location to resolve the intermittent problem faced by the respondent no.4 and that the identified person of the service provider, provided remote access support and tried to resolve the issues faced by the respondent no.4 but could not resolve the issues till 1.00 PM. Learned senior counsel submits that it is evident from the affidavit of respondent no.5 that the bidders were free to contact the service provider for guidance or system requirement or any other service, in this case the petitioner was facing technical glitch and as such well before expiry of deadline, the respondent no.4 had been seeking help of respondent no.5 because after uploading the tender documents the respondent no.4 was unable to find the final submission tab. It is submitted that from the logbook enclosed as Annexure-3 to the affidavit of respondent no.5 it would appear that the respondent no.4 had uploaded its tender documents. The respondent no.5 was giving remote access to the system of respondent no.4 is also evident from the affidavit of respondent no.5 as the respondent no.5 has stated that he tried to resolve the issue but could not resolve till 1.00 PM. It is submitted that the dispute as to where the glitch was located is wholly irrelevant to the dispute and indeed can never be a subject matter of writ jurisdiction. To that extent, learned senior counsel submits that whether the technical glitch Patna High Court CWJC No.4681 of 2019 dt. 30-04-2019 was in the system of respondent no.4 or on the portal of the respondent no.1-Company, the report of the respondent no.5 cannot be taken as a conclusive proof of the fact and if such serious issue of dispute is ventured into for adjudication, the writ court would not be an appropriate forum for the same.

96. Contesting the said submissions of learned senior counsel for the petitioner, Mr. Parag P. Tripathi, learned senior counsel for the respondent no.4 has strongly contended that a bare perusal of the facts of the present case would show that it has a totally different situation inasmuch as it is evident from the report of the R-5 that the R-4 was in touch with R-5 from a prior time before the deadline of submission of the bid. It is not a case like Shapoorji Pallonji (the first respondent in the said case) where the bidder was found to be negligent and had failed to press "freeze button." It is a case where the R-4 had gone in the hand of the R-5 by giving remote access of its system to R-5 even before deadline of submission of bid, but because of the technical glitch the process could not be completed even though the entire tender documents had already been uploaded. He has also submitted that there was a technical glitch is evident from the report of the R-5 though it says that the technical glitch was in the system of R-4 but it would be a disputed question of facts to say as to where the technical glitches existed at the relevant time and this Court sitting under Article 226 of the Constitution of India need not go into Patna High Court CWJC No.4681 of 2019 dt. 30-04-2019 those disputed question of facts which would require taking of evidence.

100. So far as the issues raised with regard to the technical glitches are concerned, this Court is also satisfied on perusal of Annexure- '5' and '6' to the writ application that they refer to technical issues being faced by the bidders in submission/uploading of bid on SJVN e-tender portal. Annexure-5 and 6 cannot be interpreted to read as if they say that the technical issues were with the SJVN's e-tender portal. Since this Court has taken a view that the employer had power to extend the deadline for submission of the bid after expiry of the period in the facts of the present case, this Court need not go into making an inquiry as to where exactly the technical glitches were existing before 13.00 Hrs (IST) on 05.03.2019.