IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 10629 of 2008 Between: R.M. Cylinders Private Ltd Company incorporated under the Companies Act having its Office at 202, 4th Floor, Malathi Plaza, Hanumantekdi, Hyderabad Rep. by its Mangaing Director. ..... PETITIONER AND 1 M/s. Hindustan Petroleum Corporation, Hindustan Bhavan, 8 Shoorji Vallabhdas Marg Ballari State, Mumbai. 2 M/s. Hindustan Petroleum Corporation, Hindustan Bhavan, 8 Shoorji Vallabhdas Marg Ballari State, Mumbai. Rep. by its Executive Director (Marketing) .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondent in not opening the technical bid of the petitioner in furtherance to the e-tender procurement notiﬁcation bearing No. 8000002 HD dt. 3-4-2008 for procurement of 14.2 KG LPG Cylinders ﬁtted with SC valve as illegal, arbitrary, and violative of Arts 14 and 19(1)(g) of the Constitution of India. Counsel for the Petitioner : MR. V.V.N.NARAYANA RAO Counsel for the Respondents : MR. M.RAVINDRANATH REDDY The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.10629 OF 2008 ORDER : The petitioner, which claims to be a company incorporated under the provisions of the Companies Act, 1956, ﬁled this writ petition seeking a declaration that the action of the respondents in not opening the technical bid of the petitioner in furtherance of e-tender procurement notification, dated 3.4.2008, as arbitrary and illegal. The material on record shows that the 2nd respondent issued e-tender procurement notiﬁcation, dated 3.4.2008, for procurement of 14.2 kg LPG Cylinders ﬁtted with SC Valve prescribing the schedule as under : “e-T ender No :8000002-HD-12001, dated 03.04.2008 Due date for submission of hard copy of EMD/ Declaration of exemption for payment of EMD…29.04.2008 at 15.00 Hrs Due date for submission of tender … 29.04.2008 at 15.00 Hrs Date of opening … 29.04.2008 at 15.30 Hrs” The petitioner claims that in response to the above said notiﬁcation the petitioner company submitted its technical bid and the price bid in physical form as well as through e- procurement within the stipulated date and time. However, on 29.4.2008 i.e., the date fixed for opening the technical bids, the petitioner company came to know that its technical bid was not opened. Aggrieved by the said action, this writ petition was ﬁled on 5.6.2008 contending inter alia that the action of the respondents in not opening its technical bid is arbitrary and illegal apart from being violative of Article 14 of the Constitution of India. It is contended by the petitioner that even assuming that the technical bid of the petitioner is liable to be rejected on any ground whatsoever, the respondents are bound to communicate the reasons for such refusal. On behalf of the respondents, the Chief Regional Manager, Hyderabad, ﬁled a counter-aﬃdavit stating that the respondent Corporation issued notiﬁcations dated 25.2.2008 and 3.4.2008 to procure 14.2 kg cylinders of LPG in the States of Tamil Nadu and Andhra Pradesh respectively making it clear that the entire procurement was only on e-procurement platform. Pursuant thereto, 23 bidders including the petitioner herein participated so far as the State of Andhra Pradesh is concerned. However, out of the said 23, only 16 submitted their tenders within the time stipulated. The petitioner was one of the bidders who did not submit its tender. On veriﬁcation, it was found that though the petitioner prepared e-tender it had not completed the entire process before closing time of tender i.e., 29.4.2008 at 15.00 hrs. Since the petitioner had not submitted the tender before the due date and time its bid was not available in the system for opening of technical bids along with other tenderers on 29.4.2008 at 15.30 hrs. Hence, the allegations of the petitioner are unfounded and the writ petition is without any merit. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioner while placing reliance upon a decision of the Supreme Court in STAR ENTERPRISES v. C.I.D.C. OF MAHARASHTRA LTD. [1] vehemently contended that the action of the respondents in not communicating the reasons for refusing the petitioner’s technical bid is arbitrary and illegal. I do not ﬁnd any substance in the above contention of the petitioner having regard to the speciﬁc plea of the respondents in their counter-aﬃdavit that the petitioner herein failed to submit its technical bid before the due date and time prescribed in the tender notiﬁcation dated 3.4.2008. Neither an aﬃdavit-in-reply is ﬁled by the petitioner rebutting the stand taken by the respondents nor any other material is placed before this Court to show that the petitioner’s technical bid was received within the time prescribed in the tender notification. However, it is contended that apart from e-procurement procedure since the petitioner had also submitted its technical and price bid along with all annexures before the respondents vide its letter dated 26.4.08, much prior to the last date ﬁxed in the tender notiﬁcation, the version of the respondents that the petitioner failed to submit its tender within the time is not correct. At the outset, it is to be noted that in the tender notiﬁcation dated 3.4.2008 it was speciﬁcally mentioned that the tender is of e-procurement platform and that the interested bidders have to participate only through the internet through the website speciﬁed therein. The relevant clauses 3 and 5 from the tender notiﬁcation dated 3.4.2008 may be extracted hereunder : “(3) Bidders are requested to note that this tender is on e-procurement platform and hence the interested bidders can participate in the tender only through the internet through the website http://eproc.hpcl.co.in Tender can be viewed in our w e b s i t e www.hindustanpetroleum.com The minimum requirement with respect to possession of Digital Certiﬁcate by the vendor, Hardware and Operating System required in their Computer to enable vendors to participate in the tender are given in the instructions chapter of the tender and bidders are requested to be guided by the same. The system requirement details are also available at the website http://eproc.hpcl.co.in by clicking the line “Vendor Instruction Manual” (5) The tenderers shall be quoting from their own oﬃces / place of their choice. Internet connectivity shall have to be ensured by each tenderer themselves.” Similar instructions were also speciﬁed in the Instructions To the Tenderers with regard to e-procurement. Thus, it is clear that the entire procurement under the tender notiﬁcation was on e-procurement platform. Hence, even assuming that the petitioner had submitted the tender documents in physical form within the time, the same cannot be taken into consideration. The respondents are required to consider only those technical bids received before the date and time stipulated in the electronic form and they did so. Since admittedly the petitioner’s technical bid was not available in the system by the time of opening of technical bids, the question of considering its bid did not arise at all. As a matter of fact, in the counter-aﬃdavit, it is explained by the respondents that from the report called for from the Consultant of the Respondent Corporation who provided the software for e-tendering process, it was found that the petitioner had prepared e-tender, but failed to complete the entire process before the closing time of the tender i.e., on 29.4.2008 at 15.00 hrs. and therefore its bid was not available in the system for opening of technical bids along with other tenderers. In the circumstances, it is clear that the petitioner failed to submit its tender within the time prescribed in the tender notiﬁcation. It is also relevant to note that the petitioner had participated in respect of another e-tender ﬂoated by the respondent in the State of Tamil Nadu and was declared as the successful bidder. Hence, it is not as if that the petitioner was not aware of the process of e-tender. For the aforesaid reasons, the action of the respondents in not considering the petitioner’s technical bid cannot be held to be either arbitrary or illegal. Accordingly, the Writ Petition is dismissed. No costs. ______________ G. ROHINI, J. Dt. 11.09.2008 gbs [1] (1990)3 SCC 280