HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.25304 of 2010 DATE: 24.12.2010 Between : Alfa Infraprop Pvt. Ltd., New Delhi, rep. by its Senior Manager & Authorised signatory. …….Petitioner And Central Power Distribution Company of A.P. Ltd., rep. by its Chief General Manager (Commercial), Hyderabad & another. …..Respondents. HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.25304 of 2010 ORDER : This writ petition is filed by a Private Limited Company, seeking directions by way of Mandamus, declaring the action of respondents in not properly maintaining the server, disabling the petitioner from uploading its bid, as arbitrary, illegal and violation of Article 14 of Constitution of India, with consequential directions to the 1st respondent to accept the financial bid of the petitioner in continuation of its technical bid, which is already submitted pursuant to the bid notice bearing No.APCPDCL/02/LTPP/2010, dated 17.05.2010. 2. The 1st respondent herein i.e. Central Power Distribution Company Andhra Pradesh Limited, has issued tender notification inviting bids for request for proposal for procurement of power for long term, under case-I bidding procedure through tariff based competitive bidding process as per the bidding guidelines issued by the Government of India, for determination of tariff by bidding process, for procurement of power by distribution licensees for meeting the base load requirements by the respondent-Companies. Initially, the tender notification was issued on 17.05.2010 and the same was revised on 17th August 2010. As per the tender notification, bid uploading was commenced on 17th August 2010 and the last date and time for submission of bids was 1st October 2010 by 11 a.m. As per Clause-2 of the tender notification, bidders were required to submit both non- financial and financial bids in a single stage bidding process as per the time lines mentioned in para 10 of the notification. In the tender notification, it was mentioned that bidders, who meet the qualification requirement as specified in clause 2.1 of the request for proposal, will be qualified bidders and the financial bids of all such qualified bidders shall be opened and evaluated as per provisions of Clause 3.4 of the R.F.P. (Request for Proposal), for the purpose of selection of successful bidders. As per Clause 9 of the request for proposal notification, persons interested have to download R.F.P. from http://tendereprocurement.gov.in website, and the bidders are required to procure a digital signature certificate from any certifying authorities in India and were to register in the e-procurement market place and submit the bids online. The procedure for opening of the non-financial and financial bids was prescribed in clause 2.14.1 of the R.F.P. Initially, although the uploading closing time was mentioned as 11 a.m. on 1st of October 2010, a decision was taken to extend the bid closing time upto 3 p.m. on the said date, and the same was also intimated to the bidders in the website. The technical bids were opened at 4 p.m. on 1st of October 2010, and as the technical bid uploaded by the petitioner was not complete by the closing time, the bid of the petitioner was not taken into consideration for the purpose of evaluation. For the purpose of sending proposals by e-procurement, the services of C1 India Private Limited, which is a Government of A.P. e-procurement tendering agency, were utilized for e-tender No.APCPDCL/02/LTPP/2010. 3. This writ petition was filed on 6th of October 2010, alleging that the respondents have not properly maintained the server for uploading the bids, as such, the petitioner was disabled from uploading its bid within the time frame notified by the respondents. In the affidavit filed by Sri Shripati Nanda, the Senior Manager of the petitioner Company, has referred to various clauses in the notification and alleged that though the petitioner commenced uploading the non-financial bid and the financial bid simultaneously as per the terms and conditions of the bidding procedure in the designated website notified by the 1st respondent, it could not upload the entire bid documents for the reason that the designated website i.e. tender.eprocurement.gov.in was not equipped with sufficient space in terms of bytes for receiving the voluminous data being submitted by various bidders, including the petitioner. It is alleged that as a result of the foregoing defect in the server, the petitioner had to make several technical adjustments in compressing its technical data for the purpose of adjusting the voluminous data in a cramped space afforded in the website, and that the last minute changes and alterations consumed precious time. Precisely, it is alleged that due to uploading space constraint, the petitioner could not upload the bids in total and that it was also brought to the notice of the 1st respondent by 3 e-mails sent on 1st of October 2010. It is further alleged that due to the said defect and uploading space constraint, respondents have accepted the bids beyond the notified time i.e. 11 a.m. on 01.10.2010, but when the petitioner was continuously uploading its bid, suddenly at around 3 p.m., the window of the website closed abruptly before the financial bid of the petitioner could be uploaded. It is also alleged that complaining the same, the petitioner has sent a fax message on 01.10.2010, followed by a detailed letter on 03.10.2010, listing out the sequence of events which deprived the petitioner of uploading its financial bid due to the non-availability of sufficient space in the server for uploading its documents. It is the case of the petitioner that as the petitioner could not upload the bid documents for the reason beyond its control, it cannot be deprived of participating in the bidding process. 4. On behalf of the 1st respondent, its Chief General Manager (Commercial), has filed counter affidavit. In the counter affidavit, while referring to various clauses in the tender notification, and while denying the various allegations made by the petitioner, it is stated that the bid uploading closing time was 11 a.m. on 1st October 2010 and the decision to extend the closing time upto 3 p.m. on the said date, was taken in view of anticipated law and order problem on the pronouncement of judgment in Ayodhya case by the Lucknow Bench of High Court of Allahabad, on 30th of September 2010, and the same was also intimated to the bidders in website. It is stated that as per the tender notification, technical bids were opened at 4 p.m. on 01.10.2010 and were evaluated, but there was no technical bid of the petitioner. The financial bids of the qualified tenderers were to be opened on 22nd of October 2010. It is stated that though allegations are made complaining the server problem, the authorized agency i.e. C1 India Private Limited is not made party to the proceedings. It is stated that C1 India Private Limited is the e-procurement tendering agency of the Government of A.P., and its services were utilized for e-tender No.APCPDCL/02/LTPP/2010, for procurement of 2000 MW power on long term basis for the distribution utilities i.e. APCPDCL, APNPDCL, APSPDCL and APEPDCL in Andhra Pradesh and that APCPDCL is also the authorized representative of the other A.P. DISCOMs. It is stated that after the writ petition is filed, the 1st respondent has addressed a letter to the Secretary, Information Technology and Communication Department, requesting for details of the petitioner Company and the details of the space utilized by all the bidders in the tender. The Principal Secretary, Information and Technology and Communication Department, in turn, has addressed a letter to C1 India Private Limited, and then, the C1 India Private Limited has furnished the information stating that it has provided sufficient space in bytes, for uploading the required documents, statements, certificates etc. of the bidders and also provided additional space as sought by the petitioner, by 9.30 a.m. on 01.10.2010, as per the copies of e-mails sent to the petitioner, by C1 India Private Limited. It is stated that the allegation of the petitioner that due to lack of sufficient space in the website it has to adjust the technical data in a cramped space, is not true, as much as the C1 India Private Limited, in the letter, dated 12.10.2010, has confirmed that they have made available 200 MB space by 9.30 a.m. itself on 01.10.2010, which was also informed to the petitioner-Company pursuant to the e-mails sent by it. Counter further states that there was no specific complaint received by the respondents from any prospective bidder, regarding insufficient space for uploading the bids or difficulties in uploading the bids. It is further stated that the e-mails referred to by the petitioner, were sent to C1 India Private Limited, but not to the 1st respondent, and that with regard to the said e-mails, the C1 India Private Limited, through its help desk, has already replied, intimating about the increased common folder also. The counter states that the allegation of the petitioner that it could not upload the bids in total due to uploading space constraint, is not correct and a mention is made with regard to two more bidders, who have uploaded the bids between 11 a.m. and 3 p.m. on 1st of October 2010. Counter also denies the allegation of the petitioner that e-bidding was kept opened beyond the scheduled time due to shortage of space. It is stated that the petitioner has obtained the bid security by way of bank guarantee on 01.10.2010 from Axis Bank Limited, and the same is also evident from the fax message sent by the petitioner at 13.35 hours on 01.10.2010. In the counter, while referring to the letters addressed by the C1 India Private Limited, it is stated that the petitioner has uploaded only 83 MB of its bid by 3 p.m. on 01.10.2010, even though 200 MB space was made available to it by 9.30 a.m. itself. It is submitted that the bidders were given sufficient space and time and as the petitioner could not upload its bid as per the tender notification, before the bid closing time of 3 p.m. on 1st of October 2010, its bid was not opened. It is submitted that the bidders had time of 46 days to upload their bids i.e. from 17th of August 2010 to 1st of October 2010, and 13 bidders have participated in the bidding process and uploaded their bids within the time prescribed. It is stated that as much as the entire bid of the petitioner was not uploaded, even the technical bid was not accepted. While denying the allegation of the petitioner that it could not send the documents due to defect in the server, the 1st respondent has prayed for dismissal of the writ petition. 5. A reply affidavit is also filed by the petitioner. While referring to the averments made in the counter, the petitioner has admitted that its representative was informed that the time for uploading has been extended upto 3 p.m. on 01.10.2010, but the reason for extension of time was not informed. The reply further states that while the petitioner was uploading the documents, the window of the website was abruptly closed at 3 p.m., as such, it could not upload the entire bid documents. The reply further states that when the petitioner was about to upload the financial bid at 2.55.20 p.m., the window of the website was abruptly closed, though the extended closing time is upto 3 p.m. It is also stated in the reply that the uploading time required for financial bid is only 30 seconds and as the petitioner was not allowed to upload its bid upto 3 p.m., as notified in the tender notification, it could not be deprived of the opportunity to participate in the bidding for no fault of it. 6. Heard the learned Senior Counsel Sri D.Prakash Reddy, appearing for petitioner, and the learned Advocate General appearing for respondents. 7. It is contended by Sri D.Prakash Reddy, learned senior counsel, that as much as the petitioner was ready with the required data to submit its technical and financial bids, and as it was deprived of uploading the same for no fault of it, it is to be permitted to submit its competitive bid. It is contended by the learned counsel that when the petitioner was uploading the documents, the server was struck at 2.55.20 hours and the petitioner was not allowed to upload its bid up to 3 p.m., and the same is illegal and arbitrary on the part of respondents. It is further contended by the learned Senior counsel that if the petitioner is allowed to submit its bid now, no prejudice will be caused, and in a way, it is beneficial for the respondents if one more bidder is allowed to participate, as they can select the competitive bidder for the purpose of supplying power. 8. On the other hand, it is submitted by the learned Advocate General that the tender notification was issued with specific terms and conditions, and the bidders who have not adhered to the conditions of the bid, are not entitled to seek any directions from this Court to accept their bids. It is submitted that sufficient space was provided in the server, and in response to the e-mails sent by the petitioner to C1 India Private Limited, it was also informed that 200 MB space is provided for sending the documents. It is submitted by the learned Advocate General that from the letter issued by C1 India Private Limited, it is clear that only 83 MB was utilized by the petitioner and it could not even complete the uploading of technical bid by the closing time i.e. 3 p.m. on 1st of October 2010. It is submitted that the very fact that two more bidders have uploaded their bids between 11 a.m. and 3 p.m. on 01.10.2010, also shows that there was no space constraint in the server, as alleged by the petitioner, and in view of the specific denial of such allegation, there is no legal basis for the petitioner for seeking directions by way of a Writ of Mandamus. It is submitted that in the absence of violation of any tender conditions, the petitioner cannot seek for any directions by way of judicial review in this writ petition filed under Article 226 of the Constitution of India. 9. From the above submissions made by the learned counsel for the parties, the question, which falls for consideration is, whether there is any violation of tender conditions by the respondents in inviting bids for request for proposal for procurement of power. At the outset, it is necessary to refer to certain tender conditions, which are relevant for the purpose of disposal of this writ petition. As per Clause 2, bidders were required to submit both non-financial and financial bids simultaneously in a single stage bidding process, as per the timelines mentioned in para 10 of the notification. As per Clause 9 of the notification, bidders were required to register on the e-procurement market place www.eprocurement.gov.in or https://tender.eprocurement.gov.in, and submit their bids online. As per the said clause, the bidders were required to upload the scanned copies of all the relevant certificates, documents etc., in support of their eligibility criteria, in the e-procurement website. As per clause 10 of the tender conditions, bid was to be submitted at the website mentioned in para 9 on or before 1st of October 2010 (last date of submission of bid), by 11.00 hours (IST). 10. In this writ petition, it is to be noticed that the services of C1 India Private Limited, which is the A.P. Government’s e-procurement tendering agency, were utilized by the 1st respondent-Company, for the e-tender bearing No.APCPDCL/02/LTPP/2010, for procurement of 2000 Megawatt power on long term basis. Although it is the case of the petitioner that there was lack of sufficient space in the designated website, the said Company i.e. C1 India Private Limited, is not made party respondent. Respondents have denied the allegation of the petitioner that sufficient space was not available for sending the bid documents. After the writ petition is filed, the 1st respondent has addressed a letter to the Secretary, Information Technology and Communication Department, requesting for details of the petitioner Company and the details of the space utilized by all the bidders in the tender. The Principal Secretary, Information and Technology and Communication Department, has addressed a letter to the C1 India Private Limited, who have furnished the information stating that they have made available additional space sought by the petitioner, b y 9.30 a.m. itself on 01.10.2010, and they have also responded to the e-mails sent by the petitioner to that effect. Further, no specific complaint was made by any of the bidders regarding insufficient space to upload their bids and two bidders have uploaded the bids between 11 a.m. and 3 p.m. on 1st of October 2010. The allegation of the petitioner that e-bidding was kept open beyond the scheduled time due to shortage of space, was specifically denied by the respondents by stating that the closing time was extended upto 3 p.m., apprehending disturbances in view of judgment in Ayodhya case. It is also to be noticed that though the scheduled time to upload the bids was upto 3 p.m. on 1st of October 2010, from 17th of August 2010, the petitioner has uploaded only 83 MB of its bid, though 200 MB space was made available. The 1st respondent has received totally 13 bids, out of which, 11 bids were received before 11 a.m. on 01.10.2010, and the remaining 2 bids were received by 3 p.m. on the said date. The bidders had sufficient time of 46 days from 17th of August 2010 to 1st of October 2010 to upload their bids and 13 bidders have participated in the bidding and uploaded their bids within the time frame. As much as the bidding process is a time-bound program, and as the bid documents of petitioner were incomplete with regard to technical bid, the tender offered by the petitioner was not opened. 11. Although it is the case of the petitioner that sufficient space was not available, except the e-mails sent on the last day of bidding, there is no other material to show that there was uploading space constraint in the server. Even for the e-mails sent by the petitioner on last day of uploading bids i.e. on 1st of October 2010, the petitioner was informed by 9.30 a.m. that 200 MB space was made available for sending documents. Though it is alleged by the petitioner that the time schedule was revised from 11 a.m. to 3 p.m. on 1st of October 2010 for want of space, but the same is categorically denied in the counter affidavit and such extension appears to be only on account of the apprehended disturbances in view of judgment in Ayodhya case, but not on account of space constraint, as alleged by the petitioner. It is also to be seen that had there been any defect in the server as alleged by the petitioner, same would have been the reason for others also. From the counter affidavit filed on behalf of respondents, it is clear that in response to the notification, from 17th of August 2010 to 1st of October 2010, totally, 13 bids were received by them, out of which, 11 bids were received before 11 a.m. on 1st of October 2010 and two bids were received between 11 a.m. and 3 p.m. on the said date. In that view of the matter, I do not find any substance in the allegation of the petitioner that it could not upload the documents for want of sufficient uploading space. Further, it is submitted by the learned senior Counsel Sri D.Prakash Reddy that while uploading the documents, the server has not accepted the documents sent at 2.55.20 p.m. on 1st of October 2010, and that the petitioner was not allowed even upto 3 p.m. to send the documents, but in the affidavit filed in support of the writ petition, it is pleaded that at around 3 p.m., the window of the website was closed abruptly before the financial bid of the petitioner could be uploaded. In proof of the same, he has relied on the browsing sheet history, a print out of which is filed in the material papers, but, it is not known as to whether the time in the system from which the petitioner has uploaded the documents, is adjusted to the Indian Standard Time or not. At the same time, the respondents have also filed the browsing history of the e-tendering agency on 1st of October 2010, to show that the last document sent by the petitioner was at 2.48.33 hours, and thereafter, no other documents were sent by the petitioner, till the closing time of the bid i.e. 3 p.m. on the aforesaid date. In that view of the matter, it is clear that the petitioner has not sent the complete bid documents even with regard to the technical bid, before the expiry of the closing time i.e. 3 p.m. on the notified date i.e. 1st of October 2010. Therefore, I do not find any illegality in the procedure adopted by the respondents in inviting bids. 12. Sri D.Prakash Reddy, learned Senior Counsel, has further contended that by allowing the petitioner to submit the financial bid, no prejudice will be caused. However, it is to be seen that when bids are invited with specified tender conditions, no direction can be granted to consider the bid of the petitioner, who has not fulfilled the criteria notified in the notification, by not sending the documents within the prescribed time. Any direction by exercising judicial review, to accept the bid of the petitioner, will run contrary to the tender conditions. As this Court is of the view that there is no illegality or arbitrariness in the procedure adopted by the respondents, and that the respondents have followed the timings as notified in the notification for inviting bids, and the revised timings as notified to the bidders in the website, and in the absence of violation of any tender conditions, no direction can be granted for accepting the bid of the petitioner. It is well settled that in the matters relating to contract, this Court is very slow to interfere, unless a case is made out to show the arbitrariness in following the procedure notified, for excluding the bid offered by a particular bidder. 13. For the aforesaid reasons, I do not find any merit in this writ petition, for grant of directions as prayed for. The writ petition is devoid of merit and it is accordingly dismissed. No order as to costs. ______________________ R. SUBHASH REDDY, J 24th December 2010 ajr