The decision of the Mumbai High Court in the Writ Petition (L) 2070 of 2017 filed by the well known Construction company Shapoorji Pallonji & Company Private Limited against the State of Maharashtra in respect of an e-Tender rejection has raised interesting debate on the e-tendering process used by Governments in different States and the Center.
Some of the experts in law have made comments on the earlier articles which require some clarification to be provided from my side and I will try to do the same here.
(P.S: The opinion expressed here does not in anyway discount the accepted fact that M/s Shapoorji Pallonji & Company is a reputed and long standing Civil Contracting firm and must be considered as a highly eligible company to win any Civil Contract whether from the State Government of Maharashtra or elsewhere).
One comment is that the e-tendering process is often tampered with in such a manner that bids from genuine parties are prevented from being placed and in the instant case the petitioner had the resources and commitments to challenge such technical glitches and hence the verdict is welcome.
I do agree that some of the e-tendering software might be tampered with or otherwise be badly built and inadequately tested. This could be part of the larger problem of corruption in administration and not always due to the inadequacy of the software/software developer including NIC.
However, if such a criminal charge was suspected in the instant case, the complaint should have been preferred as a criminal complaint seeking punishment of persons responsible for hacking or denial of service provided there was sufficient evidence.
There is no need to justify this verdict for the reason that tampering for corruption is a possibility or fact and this decision pulls up the Government authorities who are easy targets to blame.
The facts in this case indicate that the petitioner was first of all not ready with his bid until the very end and claims that he encountered technical problems which could not be resolved in time. Some operator at their end could have simply forgotten the last process and in a hurry to complete the tender might have thought that he was through the process once the “Successfully uploaded” message appeared on the screen. This is a common mistake many computer operators do.
The petitioner’s claim of having been prevented from completing the process is only a self serving evidence from the petitioner that there was a technical glitch. It is unclear from the judgement (but can be reasonably presumed otherwise) that the screen shot submitted by the petitioner that the “Documents were uploaded successfully” was supported by a Section 65B certificate.
Even if the successful “Uploading” was proved, it does not complete the process of tender until the “Freeze Bid” is completed. After the documents are uploaded and before the freeze bid process is completed, the bidder may have the option of changing his bid by abandoning the tender or re-submitting the document.
As long as the bidder retains the option to withdraw the submission, the submission has to be treated as incomplete. Hence “Uploading” is not equivalent to “Bidding” but the Judgement will support this anomalous situation.
In the instant case, if the bid committee had not rejected the application of the petitioner, they would have been violating the rights of the remaining bidder. Considering the might of the rejected bidder, it would have perhaps required a lot of courage of an honest official to take the decision.
If there was any prima facie evidence of a criminal tampering with the system, the correct remedy for the petitioner to seek was a criminal punishment of those who tampered with the system as also to cancel the tender and arrange a re-tender in due course.
The petitioner however did not chose this option but chose instead to file a simple writ petition to include the late bid.
If the petitioner was really interested in “Public Good” as some critics of my view imply, they could have raised the issue of “Tampering of E-Tender Process” and helped in cleaning up the system which they did not chose to do.
On the other hand, by allowing regularization of “Incomplete Tender Process” the Court has set a precedent where by the “Tender Rules” are amenable to be changeed if any of the unsuccessful bidders are capable of moving a Court in their favour. This could be used as an excuse in every other tender process by a bidder who fails to meet the rigorous tender rules that others have already followed.
I wish that Maharashtra State Government or NIC should challenge the order because this makes every other e-tendering process a “Suspect” and hits at the very integrity of NIC and the Government officials involved.
I request that those Critics who have ferociously defended the judgement may kindly shed their vested interests and look at the Judgement from the perspective of what is right in principle irrespective of which party benefits therefrom.
Naavi
Related Articles:
The Pandora’s box of Technical Glitches opened….The e-tender judgement in Maharashtra…1
The Pandora’s box of Technical Glitches opened……2: MHDA and NIC need to take note
Following Comments on the points raised here was received on another platform and has been reproduced here with permission:
This is from Advocate Prashant Mali who I understand was associated in the above litigation:
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Let me make the record straight, taking directly from the Judgement
1. Shapoorji Pallonji uploaded its technical and financial bid on 27th July, 2017 at about 12.16 hrs on eprocurement system while the End time was 13:00 Hrs so tender was well within time.
2. Your analogy of “Putting the tender in MHADA premises and not in the tender doesn’t fit here, Coz the bidder has uploaded i.e. “submitted the tender on the server” as mentioned in tender conditions on e-tender server. MHADA added one more step of “Pressing Verification button” after uploading. So to rebut NAAVIs analogy, it was putting the tender in tender box and not pressing a button or button not getting pressed, which is not a precondition in “Invitation to Tender” and hence not a pre-condition to contract.
3. Courts exercise their wise judgement when public interest is in picture. I feel this was a case even court interference was not required as NIC and MHADA had initially said they will co-operate and hence they took Bank Guarantee also after submission dates and after they about this incident. They later developed cold feet allegedly motivated by other bidders may be.
4. This case is a landmark coz, Law cannot be at Peril of Technology and the same goes for Public interest. Bombay High Court has the Original Jurisdiction to decide What extent public interest can lie when it comes to technology and glitches .
General Comments:
I echo some of the members grievance and concern that e-tender doesnt mean transparency, in fact if misdeed is done in tendering process now it is more costly to rectify through Writs and Court orders.
I have handled many e-tender cases and i find it is plagued with issues of trust, confidence. Encryption etc is the cream but the cake is often adulterated
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Comment by Raghunath Iyer
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As much as I read the order, I agree with point 2 – the court observed that “freeze button” was not shown as precondition. Files were uploaded WELL WITHIN time. NIC failed to produce the files even after court requested. That is rather strange behavior by NIC, when it has admitted that the files remain in its “vault” whether “freeze button” was pressed or not.
Also the petitioner gave advance request before tender opening to consider their application. Since all documents are lying encrypted and untampered I wonder why such brouhaha is being made about the “freeze button” other than to exclude a participant.
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Comment by Another
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Dear Mr Naavi,
I am not trained in law but I beg to differ with your conclusion. Given the real possibility that “freeze” button failed to work (could be a browser version mismatch for all you know) instead of assuming that petitioner erred in not pressing it, and given that indeed the bid file of the stipulated size had reached the server in time, as a layman I think the judgement was fair and just to all.
Rather than hiding behind technicalities, it gave chance for the petitioner to remain in the running in good faith. No special favour was shown to them otherwise. Govt potentially benefitted due to more competition. The size of the bid justfied the judicial intervention. There was no injustice to anyone…
My two bits.
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