The Delhi High Court recently dismissed a petition filed by Adani Global Air Cargo Solutions Private Limited challenging the bidding process for the development of a new cargo terminal at Kolkata Airport [Adani Global Air Cargo Solutions Private Limited v. Union of India].
The Court held that Adani failed to substantiate its claim that technical glitches on the e-procurement portal prevented the timely submission of its bid.
This was after the Central government and other respondents opposed Adani’s petition and submitted material which showed that the portal was functioning without any technical issues on the relevant day.
The judgment was passed by a Division Bench of Justices Vibhu Bakru and Girish Kathpalia.
“Whilst this court finds no ground to interfere with the bidding process, given the limited scope of judicial review, it is necessary to clarify that ACLASCL (the company inviting bids) is not precluded, from considering that despite the petitioner’s bonafide attempts, it had failed to upload its bid, and from taking an appropriate decision in its commercial interest,” the Court said.
The petition filed by Adani Global Air Cargo Solutions and its director sought the cancellation of the e-tender issued by ACLASCL, a subsidiary of the Airports Authority of India, for the development of the cargo terminal on a design, build, finance, operate, and transfer (DBFOT) basis.
The petitioners claimed that they were unable to submit their bid due to technical issues on the Government e-Marketplace (GeM) portal, which allegedly prevented them from uploading their financial bid before the deadline of 5:00 PM on November 7, 2024.
Adani argued that despite multiple attempts, they faced repeated errors while uploading documents, including issues with duplicate file names and an unresponsive “sign and submit” button.
They claimed that these technical glitches were beyond their control and sought an extension of 30 minutes to complete the submission process.
However, the respondents, including the Union of India, ACLASCL and the National Informatics Centre (NIC) contested these claims. They submitted that the e-procurement portal functioned without any technical issues on the day in question.
NIC, which manages the portal, provided detailed logs showing that the petitioner had successfully uploaded 18 documents at 4:57 PM, just three minutes before the deadline, but failed to complete the submission of the financial bid.
The Court noted that the petitioner had initiated the submission process well in advance but encountered errors due to improper inputs, such as duplicate file names, which led to repeated logouts.
The Court found no evidence of systemic errors on the e-procurement portal as NIC’s logs indicated that 243 bidders were active on the portal that day, with 18 bids successfully submitted between 4:00 PM and 5:00 PM.
“In the present case, we are unable to accept that the bidding process falls foul of the Article 14 of the Constitution of India or is vitiated on the ground of bias. The petitioner’s challenge to the bidding process also fails the Wednesbury test of unreasonableness,” the Court said.
The Court referred to the Supreme Court’s decision in Maharashtra Housing Development Authority v. Shapoorji Pallonji and Company Private Limited (2018), which held that bidders must ensure timely submission of bids and cannot seek a second opportunity due to their own errors.
The Bench also cited the 2023 judgment in Deep Blue Xpress Limited v. Municipal Corporation of Delhi wherein the Delhi High Court had dismissed similar claims of technical glitches, emphasizing that bidders must bear the responsibility for timely submissions.
While the Court acknowledged the petitioner’s bonafide efforts to participate in the bidding process, it ruled that there was no ground to interfere with the bidding process.
“Having stated the above, we consider it apposite to also note that there is no cavil that the petitioner is a bonafide bidder and was intending to participate in the bidding process. Its efforts to upload its bid had failed due to problems encountered by it,” the judgment said.
The Court attributed the failure to complete the submission to Adani’s repeated login attempts and subsequent logouts due to incorrect inputs.
The Bench inferred that the pressure to upload documents quickly may have led to these errors.
“We get a distinct impression that there would have been feverish attempts to ensure that all documents are properly uploaded and the process may have resulted in certain erroneous inputs that had resulted the petitioner being repeatedly logged out. Finally, the petitioner had run out of time and could not complete the process notwithstanding that it had commenced the exercise of uploading its bid much in advance of the deadline,” the judgment said.
However, the Bench opined that Adani’s inability to submit a complete bid not only disadvantaged the company but also deprived ACLASCL of a competitive bid.
“It is also relevant to note that ACLASCL has received bids from only three bidders and exclusion of the petitioner from the bidding process has significantly reduced the pool of the competitors,” the judgment said.
