AMR Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The appellant had questioned the award of work under NIT No. BCCL/GM (CMC)/e-Tender/F-HEMM-0S/2015/312 dtd. 9/3/2015 to the Respondent No.8 as being arbitrary, unreasonable and malafide with an intent to favour him. He accordingly sought quashing of the Letter of Acceptance dtd. 30/5/2015 issued in favour of the Respondent No. 8 and approached the Writ Court.

(2.) Learned Single Judge on a conspectus of things, in the ultimate analysis, came to the conclusion that public interest did not suffer as the bid offered by the Respondent No. 8 was much higher than the petitioner and held that the impugned action of M/s BCCL or C1 India Private Limited was not unreasonable, arbitrary or unfair. Learned Single Judge also did not find infirmity in the action of the Respondent BCCL in condoning the delay in acceptance of the Performance Guarantee even after expiry of 28 days from the date of receipt of Letter of Acceptance on the representation of the Respondent No. 8 in view of Clause 4.3 of the terms and conditions of the contract which gave discretion to the CMD, BCCL to permit the successful agency to submit performance security up to an extended period. The writ petitioner being aggrieved by the impugned judgment dtd. 16/8/2017, has preferred the present Letters Patent Appeal.

(3.) Learned Senior Counsel Mr. Ajit Kumar Sinha, representing the appellant, has during the course of his elaborate submissions, questioned the legality and correctness of the view taken by the Learned Single Judge. In the process, the relevant terms and conditions of the NIT dtd. 9/3/2015 have been placed for our consideration. Clause 9 relating to the terms of 'Bid Opening', have been read over along with 'Business Rules for Reverse Auction' prescribed as per Clause 9(vi). Clause 8 which provides for Independent External Monitor, has also been referred to as being relevant to the material in controversy. Learned Senior Counsel has also placed the documents at Annexure-3 being the screenshots which showed different stages of the reverse auction process and depict the appellant as L-1 at 13:03:58 hrs. One of the screenshot also shows the time remaining as 01 second at 13:03:46 hrs i.e. before the close of 30 minutes period of the lowest bid submitted by the petitioner, with no other better bid submitted by any other bidders. This, according to him, was in conformity with the clause 9(ix). He has further placed e-mails of Respondent No. 8 (Annexure-34) sent at 13.36 PM and 13.22 pm. He has asserted that no other bidders had actually complained of interruption in the bid process. On complaint being made by the petitioner, one of the Independent External Monitor (IEM) gave a clear opinion that there was no system failure as alleged and resumption of reverse auction was not a fair decision. He had also heard the representative of M/s BCCL and taken note of replies from other tenderer that they did not experience any system failure during the auction. He has expressed serious doubts about the transparency in the decision making process. The other Independent External Monitor Mr. L.C. Singhi, IAS (Retd) however gave a contrary opinion.