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7. With respect to the delay and latches on the part of the petitioner to the effect that although the auction resumed on 05.05.2015, the petitioner had approached this Court on 10.08.2015 without disclosing any justification for such delay. Further submission has been advanced that even after letter of acceptance was issued on 30.05.2015, the petitioner delayed challenging the process or the decision taken by more than 2 months. It has been stated that the letter of acceptance is treated as a concluded contract between the parties. In support of his contention, learned senior counsel has referred to the case of "Raunaq International Ltd. Vs. IVR Construction Ltd. & others" reported in (1999) 1 SCC 492. The preliminary objection which has been raised by the learned ASGI is with respect to the petitioner being barred by the principles of estoppel on the ground that though the challenge has been made to the resumption of the auction process, but the petitioner had willingly participated in the resumed auction process and had never raised any sort of objection at that point of time. It has been stated that after issuance of the letter of acceptance to the respondent no. 8 - M/s. BCCL in compliance with the terms and conditions of the NIT has duly returned the earnest money deposited to the unsuccessful bidder which included the petitioner also. The return of the bank guarantee was never protested or objected to by the petitioner. Learned ASGI has also submitted that if there was a technical fault, the auction was permissible to be resumed for the paused period for which he has referred to Clause 9 (XIII) of the NIT. The petitioner after resumption has submitted 12 bids and even in the extended period, it had submitted 8 bids without any protest or objection. Submissions have been advanced that the petitioner is estopped by virtue of the principles of estoppel to challenge the auction process as he cannot be permitted to approbate and reprobate at the same breath. The contention of the petitioner that he was declared as L1 bidder at 13:03 hours is based on a wrongful assumption as the petitioner was also well aware of the resumption of the auction process, since it had participated in it whole heartedly without there being any sort of objection made on its behalf. In support of such contention reference has been made to the case of "THDC India Ltd. Vs. Voith Hydro GMBH Company & Anr" reported in (2011) 4 SCC 756. So far as the question of public interst is concerned, submission has been advanced that the bid offer of the petitioner being Rs. 2213 lacs is higher by Rs. 170 crores, if compared to the offer made by respondent no. 8 and the same is totally against the public interest as it would cost the State an enormous amount of Rs. 170 crores. It has therefore been submitted that since there is no public interest involved in the writ application and the same is in fact against the public interest, on such score also, the writ application is liable to be dismissed and in support of such contention reference has been made to the case of "Rajasthan Housing Board & Anr. Vs. G. S. Investments & Anr." reported in (2007) 1 SCC 477 as well as to the case of "Jagdish Mandal Vs. State of Orissa & Ors." reported in (2007) 14 SCC 517.

10. Mr. Kalyan Bandopadhyay, learned senior counsel appearing on behalf of the petitioner replying to the contentions advanced by the learned ASGI has stated that the question of estoppel which has been sought to be raised by the learned counsel for the respondent nos. 3 to 5 cannot be decided as a preliminary issue. He has once again referred to the conditions of the NIT and had stated that an illegality having been committed the rule of law has to be established by correcting such illegality. In support of his contention, learned senior counsel has referred to Clause 9(IV), (V), (XII) and (XIII) of the NIT. Reference has also been made to the business rules and it has been stated that Clause 9 (IX) of the NIT has to be read with Clause VII of the business rules. It has been stated that Clause 7 specifies that on the second day of the auction, no auto extension will be given after 18:00 hours on the second day of the auction. Learned senior counsel has also made a reference to the screenshot of the auction held on the second day which indicated that on 05.05.2015, the time remaining for the auction to close was 1 second and the auction was subsequently shown to be closed and it was never shown to be paused. It has therefore been submitted that the resumption of the bid after closure of the auction is an illegal act on the part of the respondent - BCCL in connivance with the service provider and the respondent no. 8. Reference has also been made to the counter affidavit of the BCCL by stating that nowhere it has been mentioned as to with whom the consultation was made in the office of the Chairman cum Managing Director. No disclosure from any of the bidders as to whether any complaint has been made with respect to the technical snag purported to have disrupted the auction process has been made and the averments made in the third supplementary counter affidavit by the BCCL is not the actual fact. It has been stated that if the process was closed on 01:03 PM, how could the respondents have stated that the system was affected from 12:55 to 01:05 PM. Further submission has been advanced that Clause 9 (XIII) is for the service provider and not for the BCCL. It has been submitted that the statement that there is no requirement for the service provider to consult BCCL is totally contradictory. Learned senior counsel thus submits that whether in the given circumstances, the doctrine of estoppel will lie. Referring to the supplementary affidavit filed by the petitioner, much stress has been given to the report of the independent external monitor who had concluded that there is no system failure and resumption of reverse auction was not a fair decision. Reference has also been made to the second supplementary counter affidavit of the respondent nos. 3 to 5 which includes a copy of the independent external monitor which suggested that the resumption of the reverse auction was in order. Learned senior counsel further submits that several questions were formulated by the other independent external monitor, but all the questions were irrelevant and beyond his purview. Question has been raised with respect to the jurisdiction of the other Independent External Monitor (IEM) with respect to answering the question which was beyond his purview as he could not have usurped the jurisdiction of the Court. Learned senior counsel further submitted that Clause 9 (IX) has to be given a strict interpretation and no relaxation on the said condition is permissible in law and therefore, no bid could have been continued after 18:00 hours. Learned senior counsel has referred to the order of this Court passed in the writ application specifically to the order dated 18.08.2015 wherein it was directed that the respondent no. 8 shall not execute the agreement. In support of the various contentions, learned senior counsel has referred to the judgments in the cases of -

16. Clause 10 of the terms and conditions of the reverse auction reveals that neither the service provider which in this case was C1 India Pvt. Ltd. nor M/s. BCCL shall have any liability to bidders for any interruption or delay in excess to the site irrespective of the cause. The E auction which was held on 04.05.2015 which is the first day of the auction was paused at 18:00:16 hours. The petitioner had relied on a screenshot that the time remaining for the auction to be closed is 00:00:01. Since the respondent no. 8 on resumption of the reverse auction has been successful, he was declared L1 and vide letter dated 30.05.2015, it was issued the work order and it was advised to furnish performance guarantee/security to be deposited within 28 days from the date of receipt of the letter of auction. The petitioner has mainly relied on Clause 9 of the NIT that the auction will stop in case a particular bid remained unresponded for a continuous 30 minutes time between 15:00 hours to 18:00 hours on the first day and 11:0 hours to 18:00 hours on the second day. The petitioner has contended that since after the petitioner had made the bid and since the same remained unresponded for a period of 30 minutes continuously, the BCCL does not have any option, but to declare the petitioner as the successful bidder being L1. The said contention of the petitioner has been vociferously countered by the learned ASGI as has been indicated in the preceding paragraphs. Since the auction process had stalled on account of technological glitches which had occurred and was interrupted at the end of the service provider, the respondent no. 8 had sent an email which was also acknowledged by the service provider which can be detected from the email sent by the respondent no. 8 to the respondent - BCCL to which reply was sent to the respondent no. 8 that on account of unexpected occurrence at the auction server, the auction get interrupted on 01:03 PM and got closed. It was further intimated to the respondent no. 8 that the auction will get restarted at 2:30 PM and the remaining time between closure time of the auction and resuming time of the auction will be provided if the auction will reach in the extension time past 6 PM. Basically the gist of the mail dated 05.05.2015 sent to the respondent no. 8 is in adherence to the terms and conditions of the NIT with respect to giving extra time for making up the loss due to the technical snag which had occurred. It appears that the auction process was resumed on 05.05.2015 at 2:30 PM and the bidders including the petitioner and the respondent no. 8 had participated and it went beyond the schedule closure of 18:00 hours and was finally stopped at 19:27 hours when the respondent no. 8 was declared as the successful bidder. The NIT document reveals that C1 India Pvt. Ltd. was selected as the service provider to provide electronic tendering. The service provider under the terms and conditions of the NIT had the authority to restart and resume the reverse auction process without seeking permission without any authority of the BCCL and could have extended the time for reverse auction if there was an interruption or disruption. In the said context, it would be necessary to refer to the counter affidavit filed on behalf of respondent nos. 6 & 7 which is M/s. C1 India Pvt. Ltd. The respondent nos. 6 & 7 have claimed that C1 India Pvt. Ltd. is a pioneer in developing E procurement solution as per the process followed by the Central Government, State Government and Public Sector Undertakings. The solutions developed and implemented by C1 India Pvt. Ltd. according to them have been independently audited for security by Price Water House Cooper and Standardising, Testing and Quality certification (STQC), a Directorate attached to the Ministry of Communication and Information Technology, Government of India. In the said affidavit, it has been stated that the help desk of C1 India Pvt. Ltd. had received calls from the participating bidders on 05.05.2015 between 12:35 to 13:00 hours that they were facing problems in submitted their bid. The initial study was carried out which revealed that due to intermittent bandwidth problem, the auction server has become unresponsive which led to data packet loss. It further appears from the said affidavit that the BCCL servers were hosted in the Tata Telecommunication Ltd., data centre which is equipped with control power high bandwidth cooling system physical security and excess control. After the rectification of the technical fault in the data centre of TCL, the E auction was resumed and proper communication was made to all the bidders and 1 hour 27 minutes time was extended beyond the scheduled closing time. On a report of a complaint made by the petitioner with respect to the resumption of the auction process inquiry was conducted by the Independent External Monitor namely, Sri L. N. Singhi who had come to a conclusion that C1 India Pvt. Ltd. could prove the interruption caused in the system during the auction process and as such, the resumption of reverse auction on 05.05.2015 was in accordance with the procedure specified in the NIT. A further finding has been given that prior to the respondent no. 8 reporting about the disruption in the auction process to either BCCL or to C1 India Pvt. Ltd., C1 India Pvt. Ltd. had already sent an email to Tata Communication at 12:59 hours informing them about the disruption in the system. A contrary view has been taken in the report of another Independent External Monitor namely, Sri N. Chaturvedy who had submitted a report on 23.09.2015 in which he had come to a conclusion that there was no system failure as alleged and the resumption of reverse auction was a fair decision. A comparison of the separate reports submitted by the independent external monitors does reveal that the report of L. N. Singhi seems to be a much more comprehensive and reasoned report than compared to the subsequent report of Sri N. Chaturvedy. Although at some places in the report submitted by Sri L N. Singhi, he appears to have gone beyond his jurisdiction, but on a careful look and comparison of both the reports, confidence would clearly be placed on the report submitted by Sri L N. Singhi.

3. By careful examination and analysis of the logs, as provided to CERT-IN by M/s. C1 India Pvt. Ltd., CERT-IN could not find any external interference, manipulation or interruption to the Reverse e-Auction Bidding Application running on the virtual server."

19. The report therefore, revealed that the web server connectivity problem was severe for some of the bidders including the respondent no. 8 and intermittent for some of the bidders including the petitioner. The analysis report further revealed that in spite of receiving complaints regarding 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 led to closure of the reverse auction bidding process during the crucial period. Analysis report of CERT-IN conclusively proves that the reverse auction which was held on 05.05.2015 was not running smoothly which led to severe connectivity problem for the respondent no. 8 as well as for some other bidders. Adverting back to the terms and conditions of the NIT, Clause 9 (xiii) gives the power of extension in case of any technological or system failure at the service provider end and it will get extended for the period, the system remained down. The resumption of the reverse auction after the technical snag was corrected was in accordance with the terms and conditions of the NIT. Therefore, the act of resumption of the reverse auction process being in conformity with the terms and conditions of the NIT and being without doubt was on account of the technological failure which on being detected led to resumption of the reverse auction, the said process cannot be called into question. The procedure which had been followed to ensure fair impartial and a level playing field to the participants of the tender was a justifiable action on the part of the respondent - BCCL.