E-tender Landmark case judgment in Shapoorji Pallonji Co Vs State, Mhada, NIC & Ors

Final Judgement for Download

E-tender case of BDD Chawl Development project of MAHADA
Verified button pressing not registered on the software, but the tender files submitted on the server. Hon. Bombay HC asks NIC to team with MAHADA to submit the uploaded files and consider Shapoorji Pallonji Co. Pvt. Ltd as valid bidder.

This was the best landmark judgement where i (Prashant Mali) was acting as Expert Legal Counsel in e-tender matter along with Iqbal Chagla & Ravi Kadam (famous Sr. Advocates). My Legal opinion delivered earlier played a crucial role in defending the matter.
For this was one of the historical case in my carrier and also is a landmark case in e-tender and Information technology domain.

Shapoorji Pallonji & Company Pvt. Ltd. Vs State of Maharashtra, Mhada, NIC & Ors

A interesting Judgement in e-tender & technology Case of Bombay High Court

11000 Crores India Biggest Redevelopment Project of BDD Chawls in Mumbai

The bid document was to be down loaded from the e­tender website ww.mahatenders.gov.in from 3rd April, 2017 to 17th May, 2017 and the bidders were advised to refer to bidders' manual kit available at http://mahatenders.gov.in for details about e­tender process to be followed. The last date of the submission of the OnLine bid was scheduled as 17th May, 2017 which was extended from time to time and lastly it was fixed as 27th July, 2017 at 13.00 hours IST. NIC was entrusted with the duty of officially hosting, designing and developing websites and servers for various governmental agencies as an expert body and hosts http://mahatenders.gov.in on its server, this particular tender for BDD Chawls was hosted for MHADA.

Shapoorji Pallonji Pvt. Ltd raised certain pre­bid queries and uploaded its technical and financial bid on 27th July, 2017 at about 12.16 hrs on e­procurement system . 

The Contention

In this case, the Shapoorji Pallonji Pvt. Ltd my client has uploaded the technical and financial documents before the bid submission end date and time. However, it was alleged that they have not clicked on the freeze button. Unless or otherwise the freeze button is clicked, the document will not be available to the tender inviting authority i.e MHADA and will remain in the area allocated for the bidder in the servers of NIC.
What was the solution:
So in Public Interest NIC was needed retrieve the encrypted bid files uploaded to their servers by my client and submit the uploaded files to MHADA for decryption and consideration for bidding .

Court held that that technology has its own glitches and the moot question is whether such glitches, which causes substantial injustice are permitted to be cured manually. Court said when as on today we have not reached a stage where the systems is full proof and gives a guarantee that it is not susceptible to any error.The impact of technology in our life today, is unimaginable. We use technology every day and it has saved us of time and efforts. Introduction of the e­-tendering system has made the cumbersome process of tenders simple, faster and also free from unnecessary human intervention. However, in a situation with which we have dealt with above, the question is whether the use of the technology has offered solutions or it has created issues. The increased dependency on modern technology has reduced our creativity and human being is dependent upon the said technology which undisputedly is an useful servant but a dangerous master. In words of Albert Einstein “human spirit must prevail over technology”. 
In the present case in hand court observes that uncertainty prevails in certain areas and no technology can make the system 'full proof' and as such a situation where the technology can err, we cannot completely exclude the element of human intervention in exceptional circumstances. Ultimately, it is the human being who controls the technology and when it errs, it is for the human being to rectify it. No solution is coming from the expert and the technology operator­ NIC as to what happens if the “freeze button is not clicked”. 
On the other hand, the NIC itself shows that once the bids are uploaded, they remain safe and saved and human intervention is not possible. Court felt it expedient to intervene in the technological procedure since we feel that the technology has failed to serve its intended purpose in the present case and interest of justice call for intervention. Every citizen has legal and fundamental rights which are required to be protected and in a digital world the said rights cannot be lost sight of but the same are to be protected by providing alternative and effective solutions, to be introduced into the modern technology/web­system and in the process of tender it is very much necessary to ensure that the bidders are not shunted out of the procedure only on account of any technical glitch and technology needs to be developed in a manner to cater to their needs without causing any delay in the scheduled time. We also makes it clear that we are inclined to grant relief to the petitioners, considering 'public interest and the fact that the bid of petitioners (technical/financial) are already sealed after their uploading and no changes are possible now, and we treat this as sealed packets submitted within date and time as per tender document.

Court issued directions to the NIC to access the files containing the bid documents of the petitioners and transfer and/or make it available to respondent no.2 MHADA which would decrypt the said files and consider the bid documents of the petitioners as a “valid bid” with the assistance of the NIC and open the technical bid of the Shapoorji Pallonji Co. Pvt Ltd..

Final Judgement for Download