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.