[ByVidhanshu Tyagi]
The author is a student of National Forensic Sciences University, Gandhinagar
Introduction
The bedrock of tender jurisprudence in India is the principle of judicial restraint. Courts have steered clear of functioning as an appellate authority over administrative decisions, specifically in contractual matters. The rationale behind this is clear: the executive being the author of the tender is the master of the process, and judicial interference should be confined to the narrow corridors of mala fides, arbitrariness, irrationality, or a palpable impact on public interest. However, a recent trend emerging from the High Courts, particularly in cases alleging “technical glitches” in e-tendering portals, threatens to erode this well-settled principle. The appointment of external expert committees, as seen in the recent orders of the Delhi High Court in Karix Mobile Private Limited v. Union of India & Ors. (Karix Mobile) and Anandam Minerals Private Limited v. Union of India & Ors. (Anandam Minerals), marks a significant departure from established precedent and risks entangling tender processes in protracted, expert-led investigations, thereby defeating the very objective of timely and efficient public tenders.
The Established Law: A High Wall of Restraint
The Supreme Court and various High Courts have built a formidable body of case law that strictly circumscribes the scope of judicial review in tender matters. It is settled law that the court should not interfere in tender matters except in the limited exceptions laid down by the Supreme Court. The foundational principles established in Tata Cellular v. Union of India is that the court’s role in judicial review is limited to checking for illegality, irrationality (in the Wednesbury sense), and procedural impropriety. Further, the Delhi High Court in Jindal Steel & Power Ltd. v. Union of India (Jindal Steel), relying on the Supreme Court’s decision in Jagdish Mandal v. State of Orissa, reiterated the triple test that constitutes these exceptions for interference:
- Is the decision-making process mala fide or intended to favour someone?
- Is the decision so arbitrary or irrational that no responsible authority could have reached it?
- Does the decision harm the public interest?
If the answers are in the negative, interference is impermissible. This principle was also upheld by the Supreme Court in MHADA v. Shapoorji Pallonji & Co. (P) Ltd. (Shapoorji Pallonji), wherein it overturned the High Court’s decision that had allowed a bidder to participate despite a failed submission. The Supreme Court found that since other bidders had successfully submitted their bids, there was no evidence of a systemic glitch, and granting a “second opportunity” was improper. Furthermore, the Supreme Court has issued a direct procedural caution to High Courts, advising that they must be “extremely careful and circumspect” when entertaining such petitions, as granting stays “may seriously impede the execution of the projects of public importance.”
This line of reasoning became the standard for adjudicating “technical glitch” claims. Courts adopted a pragmatic and evidence-based approach. The primary question was whether the glitch was at the bidder’s end or a systemic failure of the e-procurement portal. The determinative factor, as established in Jindal Steel (supra) and the Orissa High Court’s ruling in Mythri Infrastructure & Mining India (P) Ltd. v. State of Odisha (Mythri Infrastructure), was whether other bidders could place bids during the alleged period of the glitch. If the server logs showed successful concurrent bidding activity, the presumption was heavily against the petitioner. The burden of proof to demonstrate a server-side failure, rested squarely and heavily on the aggrieved bidder. This was a high threshold that was often not met, which in turn led to the dismissal of such petitions, sometimes with costs, as evidenced by the decisions in
The New Approach: Outsourcing Adjudication to Experts
The recent orders in Karix Mobile and Anandam Minerals signal a notable deviation from this established path. In Karix Mobile, the Delhi High Court, faced with an allegation of a technical glitch on the Government e-Marketplace (GeM) portal, directed the Director of the Indian Institute of Technology (IIT), Delhi, to nominate an Expert Committee to investigate the issue. The court deferred its own judgment pending the submission of a technical report.
Similarly, in Anandam Minerals, a bidder claimed its screen went “blank/white” for 2-3 minutes, preventing it from placing a higher bid. The portal operator, MSTC, categorically refuted the claim, stating that no other bidder, including those in other simultaneous auctions, had reported any issue. Despite this strong prima facie evidence aligning with the principles laid down in Jindal Steel and Mythri Infrastructure, the Court observed that the matter was “highly technical in nature” and could not be “ascertained by the Court.” Consequently, it directed IIT Delhi to form an Expert Committee to examine the alleged glitch.
This deviation is not merely a departure from precedent but also overlooks a fundamental jurisdictional principle, as such disputed questions of fact cannot, and should not, be raised in writ courts. A writ petition under Article 226 is a summary proceeding designed to address patent illegality, not to conduct a roving inquiry into complex factual disputes. The very fact that a court deems an issue “cannot be ascertained” based on affidavits is a strong indicator that the matter is not amenable to writ jurisdiction. Such fact-intensive disputes are not the proper subject matter for writ jurisdiction. If at all any issue exists, the appropriate remedy is a civil suit, where the court can decide the matter based on a full trial with documentary evidence, examination-in-chief, and cross-examination. This aligns with the Supreme Court’s long-standing position, as affirmed in both, Jagdish Mandal and By entertaining these disputes, writ courts are venturing into an evidentiary exercise for which they are not designed, effectively transforming a summary remedy into a fact-finding mission.
This approach, sidestepping the established jurisprudence, raises several critical questions:
- Undermining the Primary Expert: Aren’t the portal operators, be it NIC, MSTC, or GeM, the primary technical experts? Their affidavits, server logs, and technical reports have historically been the primary evidence upon which courts have relied. Appointing an external body like IIT implies that the evidence from the portal operator is insufficient, thereby shifting the forum of adjudication from the court to an external committee. Does this not improperly question the competency of the state’s own technical infrastructure without any foundational proof of its failure, thereby creating a “battle of experts” where none is warranted?
- Lowering the Burden of Proof: The established jurisprudence required the petitioner to conclusively prove a server-side glitch. The new approach seemingly allows a petitioner to trigger a full-fledged external investigation merely by raising a “highly technical” doubt. Has the mere incantation of ‘technical glitch’ now become a talisman to bypass the rigorous evidentiary burden established by the Supreme Court and requiring the state to disprove it through a court-mandated external audit, thereby weakening the very fabric of tender jurisprudence?
- Abdication of Judicial Function: While complex matters may require expert opinion, the court’s role is to make a finding based on the preponderance of probabilities from the evidence on record. The fact that other bidders faced no issues is a powerful piece of evidence. By referring the matter to an external committee at a preliminary stage, the court effectively outsources the critical fact-finding exercise that is central to its adjudicatory function. Is it the proper function of a writ court, a forum for summary proceedings, to embark on a roving fact-finding inquiry better suited for a civil trial?
The Unintended Consequence: Paralysis by Analysis
The most damaging consequence of this judicial intervention is the inevitable and substantial delay it injects into the tender process. The appointment of these institutes undermines the tender processes because it introduces a collateral, time-consuming inquiry. Once a report is submitted, objections are filed, and matters are delayed further as the court must then adjudicate on the validity of the report itself. This entire cycle places tenders in an indefinite limbo, undermining the very fairness it purports to protect. The Delhi High Court itself, in the foundational Jindal Steel decision, expressly cautioned against this danger, observing that “interference by a writ court in setting aside a concluded auction will seriously affect a process which is neutral.”
This warning is particularly resonant in the Anandam Minerals case, as the contract had already been awarded to the successful bidder. The court’s order to investigate casts a long shadow of uncertainty over a concluded contract. More perilously, these decisions will open a floodgate of litigation in tender matters, where every bidder who loses will be incentivized to approach the court, armed with a self-serving allegation of a technical glitch, in the hopes of stalling the process. The Supreme Court in Uflex Ltd. v. State of TN lamented this ground reality where “almost no tender remains unchallenged”. The downstream effects are severe, leading to a substantial loss of exchequer money due to project delays and cost overruns, and creating immense administrative problems as officials become risk-averse. The Supreme Court has repeatedly warned that such interference makes the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure. This current trend inadvertently arms disgruntled bidders with a new and potent weapon to disrupt the commercial certainty that is vital for a healthy procurement ecosystem, defeating the very purpose of an efficient, time-bound tender process and running contrary to the public interest.
Conclusion
While the courts’ intention is undoubtedly rooted in a desire for fairness, this approach is a cure worse than the disease. It runs contrary to the established legal principle of minimal judicial interference and the jurisdictional limits of a writ court. It inadvertently lowers the high burden of proof and creates a parallel investigative mechanism that causes significant delays. The wisdom of the precedents from the foundational restraint of Tata Cellular to Shapoorji Pallonji and Jindal Steel lies in their recognition that while fairness is paramount, so is finality. A system where every unsubstantiated claim of a technical glitch can halt a public project for months pending an expert review is neither efficient nor in the larger public interest, as rightly cautioned in NG Projects. The courts must revert to the stricter, evidence-based scrutiny of such claims, lest the wheels of public procurement and tender process grind to a halt in the quest for an elusive, absolute certainty.