Madhu Sweta & Shivangi Khanna of our Arbitration & Litigation team won a case in favour of NHAI before the Delhi High Court pertaining to adherence of tender conditions. A writ petition was filed by the Petitioner/GHV India Pvt. Ltd. seeking direction against NHAI/Respondent for rejecting its bid in arbitrary and malafide manner. Reliance was placed by the Petitioner on the recent circular issued by NHAI dated 24.05.2019 which dispenses with the requirement of submitting documents physically.
The Hon’ble Court enquired why NHAI is not complying with the aforesaid circular. We submitted that the circular was recently issued in June 2019 and that no corrigendum was issued to make the circular applicable in the present tender. We further apprised the Hon’ble Court that the e-portal for tender submission is yet to be updated to give effect to the said circular dated 24.05.2019. We relied on the terms of RFP namely Clause 12.3 which categorically stipulates that in case of late submission of physical documents like BG, POA etc., the bid will be summarily rejected. Since the Petitioner had failed to comply with the submissions of physical documents as per Clause 2.11.2 of the RFP conditions, NHAI rejected the bid as per Clause 12.3. In fact, this was the understanding with other bidders also as NHAI has received the online as well as physical submissions of 6 other bidders.
Reference was also made to the recent judgment of Supreme Court namely Vidarbha Irrigtaion development corporation v. M/s Anoj Kumar Garwala wherein the Hon’ble Supreme Court held that “the words used in the tender document cannot be ignored as redundant or superfluous”. Hence, no judicial review is required in the present case as the Petitioner has not even challenged the tender conditions as arbitrary and perverse.
After hearing the arguments, the Hon’ble Court upheld our submissions and rejected the writ petition in favour of NHAI. However, in the interest of justice, the Hon’ble Court observed that the Petitioner may make its representation for reconsideration of the bid and the same may be considered by NHAI.