A division bench of Bombay High Court recently heard a case where during the uploading of an e-tender, the system experienced a technical glitch and the bid was disallowed.
In Shapoorji Pallonji & Company & Anr. v Maharashtra Housing Development Authority & Ors., the authority issued an e-tender notice inviting proposals for the construction of temporary transit camps and various other works for a redevelopment project to be submitted by 1pm on 27 July. The bidders were to submit their bids in a single stage e-tendering process. The company uploaded its technical and financial bid at about 12.16pm on 27 July.
The bid documents were uploaded on the e-portal, but no acknowledgement was generated as pressing of the freeze bid button was not logged in the system. The company was orally informed that its bid was not received and therefore, its bid would not be considered as valid.
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The company then sought to obtain a writ from Bombay High Court. The counsel for the company placed reliance on section 13 of the Information Technology Act, 2000, which provides for the time and place of dispatch and receipt of electronic records. The information technology expert that submitted an affidavit said that the bid document would be available on the National Informatics Centre’s (NIC) server in the same format and composition, as at the time of its uploading to the e-portal. It was argued that even assuming that the bid freeze button was not pressed, the documents surely remain in the NIC server as it hosts the e-portal system website on www.mahatenders.gov.in and has complete access to all data including such documents that may be uploaded by users on the site of e-portal.
The court observed that it is necessary to ensure that bidders are not shunted out of the procedure on account of a technical glitch. After a detailed discussion on the technological issues of the cyber bid, the court allowed the company to participate in the bid by directing NIC to access the files containing the bid documents and transfer them to the authority, which would consider the bid documents as a valid bid.
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The dispute digest is compiled by Bhasin & Co, Advocates, a corporate law firm based in New Delhi. The authors can be contacted at lbhasin@bhasinco.in or lbhasin@gmail.com. Readers should not act on the basis of this information without seeking professional legal advice.
