Unsuccessful Participating Tenderer Can't Challenge Tender Conditions At Final Stage : Allahabad High Court

A Bench of Justice Shekhar B. Saraf and Justice Prashant Kumar dismissed a writ petition filed under Article 226 of the Constitution by Avani Paridhi Energy and Communications Pvt. Ltd. challenging the technical evaluation and the entire tender process, alleging it violated a Government Order.

At the outset, a preliminary objection was raised by the respondents regarding the maintainability of the plea as it was submitted that that he petitioner has participated in the entire tender process and was accordingly, barred from challenging the same by way of a writ petition.

In response to this, the petitioner relied upon Uttarakhand High Court's 2023 judgment in Nandaur Haldwani Ujjwal Dharam Kanta Owners Society v. Uttarakhand Forest Development Corporation and others to submit that if the petitioner protested and thereafter participated, he is not estopped from filing a writ petition.

The division bench noted that though a letter had raised some protest, the receipt of such letter was categorically denied by the counsel appearing on behalf of the respondents.

In view of this, the Court refused to weigh in the contention of the petitioner that they had participated in the tender process after protesting noting that it remained unsubstantiated. Thus, the Court concluded that Uttarakhand HC's judgment won't help the petitioner.

Furthermore, the bench, relying upon the Supreme Court's 2023 judgment in the case of Tata Motors Limited v The Brihan Mumbai Electric Supply & Transport Undertaking (Best) And Ors 2023 LiveLaw (SC) 467, opined that the Writ Court should be slow to interfere in commercial matters especially in relation to tenders issued by the government.

"…the Writ Court should ordinarily refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out…", the Court noted.

Against this backdrop, the bench added that a person who has participated in the tender process is barred from challenging the said tender conditions at the closing stages when it is clear that the person is unsuccessful.

“Any such challenge to the tender conditions is required to be made by the person at the very first instance and an unsuccessful tenderer cannot raise a ground that the tender conditions were in any manner unlawful so as to reverse the decision at the eleventh hour”, the Court noted.

Accordingly, the writ plea was dismissed.