TaxTMI 
TaxTMI 
2018 (5) TMI 2199
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....n to the "eleventh hour". This is amply demonstrated in the present case, where the fate of the petitioner's bid in response to a Global Tender floated by the respondent No.1/ONGC, hangs on those very fleeting seconds. 2. We may first recapitulate the facts of the case. On 24.11.2016, the respondent No.1/ONGC had issued a Notice Inviting Tender under the International Competitive Bidding Format, in respect of the "Offshore Process Platform (CPP & LQUIP) project for development of KG-DWN- 98/2". The bidding process comprised of a two bids system whereby the Techno-Commercial Bid was required to be submitted by the bidders. The Technical Bid had to be opened on the day of the Bid submission, followed by the opening of the Commercial Bid. The submission of the Bids was to be made on the "ONGC e-bidding engine at http://www.etender.ongc.co.in". 3. The petitioner, a company involved in providing complete "EPCIC solutions" for the Offshore Oil and Gas Industry, joined hands with the respondent No. 2 herein, Mc Dermott Asia Pacific Pte. Ltd. to create a consortium for participating in the NIT floated by the respondent No. 1/ONGC. 4. Initially, on 31.01.2017, the respondent No....
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....o the system of the respondent No. 1/ONGC on 04.2.2018, at 19:41:56 hrs. and had continued uploading the documents till 23:27:34 hrs. Thereafter, the petitioner had commenced uploading further documents on the next day i.e., on 05.2.2018, at 09:57:17 hrs. and had continued uploading the documents relating to the Technical Bid upto 13:41:46 hrs. In the meantime, at 13:20 hrs., the petitioner had submitted a request to the respondent No. 1/ONGC to extend the timeline for submission of the bid by 3 hours i.e. upto 17:00 hrs. The said request was however rejected by the respondent No.1/ONGC at 13.24 hrs., on the very same day. Thereafter, at 13:47:33 hrs., the petitioner commenced uploading the Commercial Bid documents. 7. The petitioner has further averred in the petition that the respondent No. 1/ONGC kept on amending the tender specifications on several occasions and did so as late as on 30.1.2018, thereby compelling it to revisit its tender specifications and coordinate with its respective suppliers and the said process continued upto the date of the deadline, i.e., till 05.2.2018. This is the reason why the petitioner explains that had to approach the respondent No. 1/ONGC for ....
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....ubmit Button". The Joint General Manager, Offshore Domestic Marketing of the petitioner company had clicked the "Submit Button" at 13:59 hrs. and the system of the respondent No. 1/ONGC did not reject the said Bid; instead, the response received was "document was successfully signed digitally". As the webpage of the respondent No. 1/ONGC had retained the status "Saved"', it made the petitioner's officer press the "Submit Button", a second time, which also took place before the cut off time, i.e., before 14:00 hrs. However, after the system time on the e-procurement webpage of the ONGC had struck 14:00 hrs., its system replaced the "Submit Button" with "Refresh Button". 11. It was thus canvassed that once the respondent No. 1's system had accepted the petitioner's Bid, then the status ought to have changed from "saved" to "submitted", which did not happen, resulting in wrongly disqualifying it from the Bid. The petitioner claimed that the aforesaid error had occurred due to a heavy load on the system of the respondent No.1/ONGC that was running slow and that no fault for the same could be attributed to the petitioner and nor could it have been disqualified from pa....
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.... inspection would be conducted on 08.3.2018, was brought to the notice of the Court. Opining that any delay in executing the commission, would in turn delay the proceedings in the petition, the Director, FSL was requested to advance the date of inspection to be conducted by Team-I and Team-II. The date already fixed i.e., 26.2.2018, was cancelled and the matter was adjourned to 12.3.2018, to await the Reports of the Local Commissioners. 15. On 20.3.2018, an officer from the FSL Rohini, Delhi was present with the Reports in two separate sealed covers along with a CD. The sealed covers were opened, the Reports were directed to be paginated and directions were issued to the Registry to furnish copies thereof along with a soft copy, to the learned counsels for the parties for their perusal. It was further directed that Senior officers leading Team-I that had visited the petitioner's premises at Mumbai and Team-II that had visited the premises of the respondent No.1/ONGC at Delhi, would remain present on the next date of hearing for the Court to interact with them and seek necessary clarifications. 16. In the Report dated 19.3.2018, submitted by Team-I, it was stated that exam....
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....nd having regard to the submission made by counsels on both sides that the technical terms used in both the Reports needed to be simplified in layman's language for the Court and the parties to understand the answers furnished to the two queries posed on the very first date, it was deemed appropriate to direct the Local Commissioners to prepare a common report of Team-I and Team-II by referring to the earlier Reports submitted by them in Court and the matter was adjourned to 16.4.2018. 19. On 16.4.2018, it was recorded that the joint report directed to be filed by Team-I and Team-II had been placed on record in a sealed cover along with a letter dated 12.4.2018, signed by the Director, FSL Rohini. Learned counsel for the parties were served with copies of the joint report dated 12.04.2018. However, the leaders of Team-I and Team-II were absent on the said date. Extracted below is the joint report :- "As per the directions of the Hon'ble High Court of Delhi on 03.04.2018, a common report has been prepared with reference to the FSL reports submitted earlier vide FSL Nos. FSL- 2018/SOC-0085 (respondent's server) & FSL-2018/SOC-0087 (petitioner's server) dat....
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....rstand its import after interacting with the officers of both the Teams and finding that none of the officers from FSL, Rohini were present on 16.04.2018, Dr. Virendra Singh, Assistant Director (Document/ CFU), leading Team-I, and Dr. Jagjeet Singh, Sr. Scientific Officer (Document/CFU), leading Team-II, were directed to remain present on the next date, i.e. 19.4.2018. 22. On 19.4.2018, the leaders of Team-I and Team-II were present and the Court as also learned counsels for the parties had the occasion to interact with them to understand the nuances of the technical terms used in the Reports. The experts had furnished necessary clarifications in respect of their initial Reports and the Joint Report filed by them subsequently. Thereafter, arguments were addressed by learned counsels for the parties on 19.4.2018, 24.4.2018 and 26.4.2018. We had the benefit of hearing arguments advanced by Mr. Harish N. Salve, Mr. Mukul Rohtagi, Dr. A. M. Singhvi and Mr. Rajiv Nayyar, Senior Advocates on behalf of the petitioner, Mr. Sukumar Pattjoshi, Senior Advocate on behalf of the respondent No. 1/ONGC and Mr. C.A. Sundaram and Mr. Darpan Wadhwa, Senior Advocates on behalf of the applicant/int....
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.... could not be blamed for the same. 25. Lastly, reference was made on behalf of the petitioner to the provision of Sections 13(1) and (2)(a)(i) of the Information Technology Act, 2000 (in short 'I.T. Act'), which prescribes the time and place of dispatch and receipt of electronic record to canvass that fundamental principle to be kept in mind n a case like the present one is to identify the stage at which it can be said that the electronic record once made by the originator, was beyond recall by him having entered the designated computer resource of the addressee, which event in the instant case, had taken place prior to the submit deadline, i.e., 14:00 hrs., on 05.02.2018. An analogy was also sought to be drawn from Section 27 of the General Clauses Act, 1897, that explains the manner of service by post and prescribes that a service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the documents required to be served by post and unless it is proved to the contrary, it must be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post. Drawing a parallel fro....
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....n the firewall log report of the petitioner, on 05.02.2018, from 09:38:32 hrs. to 14:10:57 hrs. but these logs do not reveal the various nature of activities that were actually carried out by the petitioner and therefore, no firm conclusion can be arrived at that there was completeness in the uploading of all the files, more so, when the tender floated by the ONGC does not specify the number of files required to be uploaded by the bidder as a part of the Technical Bid and the Price Bid. 29. It was also submitted on behalf of the respondent No.1/ONGC that in order to submit the Bid, a vendor is required to create a login ID and generate a password, pursuant to which a unique vendor ID is generated, which enables the system to identify the vendor. Once the unique ID is created, it remains with the vendor for all future purposes and in the instant case, the petitioner was assigned a vendor ID "V153581". The documents are uploaded by the vendor in the area demarcated for it within the server of the ONGC to which it does not have any right or access. This is to ensure that the Bid submitted by the vendor on the ONGC website remains confidential. The said procedure is analogous to a p....
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....1/ONGC on the ground that it had failed to upload its Techno-Commercial Bid on the e-bidding portal of the respondent No.1/ONGC on or before the deadline, was a justified decision and warrants no interference by the Court, the decision of the Supreme Court in the case of Maharashtra Housing Development Authority vs. Shapoorji Pallonji and Company Private Limited and Others. reported as (2018) 3 SCC 13, was cited. 31. In his rejoinder arguments, Mr. Rohtagi, learned Senior Advocate appearing for the petitioner had disputed the submission of the respondent No.1/ONGC that there was a malfunctioning of the petitioner's server or that appearance of a common time for all the eight documents uploaded by the petitioner is a result of its officer having pressed the "Saved Button" at one go. He explained that the "Saved Button" was pressed at the time of uploading each document and not commonly for all the documents and that the petitioner had uploaded and saved eight digitally signed documents in a sequence at different times starting at 13:47:33 hrs. and ending at 13:58:43 hrs., which would be apparent from the screenshot of the web portal of the ONGC at page 668, that forms a part ....
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....bidder if the petitioner is permitted to participate in the bidding process. 34. We have heard the arguments advanced by learned counsels for the parties, perused the records and carefully gone through the three set of reports submitted by the Computer Forensic Experts of FSL, Rohini, Delhi. 35. It may be noted at the outset that due to the urgent nature of the relief prayed for in the present petition, it was agreed by the parties that completing of the pleadings will be dispensed with. Instead, parties would proceed to address arguments immediately on receipt of the reports prepared and submitted by the experts from the FSL, Rohini, Delhi. All the same, both sides were given an opportunity to file their written submissions, which they did, while exchanging copies with each other. 36. In the first instance, it is considered expedient to refer to the relevant terms and conditions of the NIT dated 24.11.2016 issued by the respondent No.1/ONGC alongwith the instructions to the bidders and the general conditions incorporated therein. The records reveal that the date and time of submission of the bids on the ONGC's e-bid engine for both, the Techno- Commercial and the Pric....
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....n to Bid", the documents should reach to the purchaser's office before 1400 Hrs. of the 7th calendar day after opening of bids submitted through the e-bidding portal. Hence, bidder should indicate the date falling on 7th calendar day after opening of bids submitted through the e-bidding portal]." The price bids submitted in physical form against e- procurement tenders shall not be given any cognizance. 18.1.2 XXX XXX XXX 18.1.3 XXX XXX XXX 18.1.4 The duly completed bid with no system error message can be submitted in SRM any time before the submission deadline is reached. The bidder shall also be permitted to make change in his bid and re-submit the same in SRM till the submission dead line. The final submitted version of bid only shall be considered by ONGC. No bid can be submitted after the submission dead line is reached. The system time that will be displayed on e- procurement web page shall decide the submission dead line. Bidders are advised in their own interest to ensure that bid is uploaded in system well before closing date....
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.... 30.01.1997, which recommended that at the time of enactment/revision of their laws, all States should favourably consider the said Model Law, which provides for equal legal treatment of users of electronic communication and paper based communication. The Legislature also recognized the need to bring in suitable consequential amendments in the existing laws of the country and facilitate e- commerce by providing legal recognition of electronic records and digital signatures, with the object of concluding contracts and creating rights and obligations through the electronic medium. 43. It can be seen from the above that the underlying object of the I.T. Act is to recognize transactions carried out by means of electric data interchange and electronic communication instead of the traditional paper based methods of communication and storage of information. The Act provides for a regulatory regime to supervise Certifying Authorities issuing Digital Signature Certificates. It enables conclusion of contracts and creation of rights and obligations through the electronic medium and provides for civil and criminal liabilities in the event of contravention of the provisions. To meet the said....
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....had entered the e-tender website of the respondent No. 1/ONGC before the submit deadline, i.e., 14:00 hrs. on 05.02.2018 and if so, would it be entitled to participate in the bidding process. As noted above, on the very first date of hearing, the dispute was crystallized and with the consent of the parties, the Director, FSL, Rohini, Delhi was requested to depute Computer Forensic Experts to examine the systems of both the parties and submit their reports separately, indicating inter alia the exact time when the last file was uploaded by the petitioner on to the e-bidding portal of the respondent No. 1/ONGC, on 05.02.2018 and further state as to the number of occasions when the "Submit Button" was clicked by the petitioner on the said date and if so clicked, specify the timing. 46. As recorded hereinabove, after the two Expert Teams had visited the premises of the petitioner at Mumbai and of the respondent No. 1/ONGC at Delhi, they had submitted two sets of reports alongwith the relevant records, one by Team-I and the other by Team-II. On reviewing the firewall log server of the petitioner pertaining to the ONGC e-tender server, by logging in with its vender ID "V153581" and pas....
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.... posed in para 7 of the order dated 15.02.2018, relating to the number of occasions when the "Submit Button" was clicked by the petitioner on 05.02.2018, before the deadline and if so, specify the timing. This had caused us to direct Team-I and Team-II to correlate their data and submit a joint report which they did vide their common report dated 12.04.2018, reproduced in para 17 above. The observations of Team-I and Team-II in their respective reports were considered and correlated by the experts with the activities recorded on the server of the petitioner and the system of the respondent No.1/ONGC relating to the petitioner's bid before 14:00 hrs., on 05.02.2018. What emerges from the joint report is that the last file was uploaded by the petitioner in the firewall server log at 13:58:33 hours, which has been reflected on the e-tender website of the respondent No. 1/ONGC at 13:58:43 hours. In the ONGC's server log, the last file logged in by the petitioner was recorded at 13:58:46 hours, which is registered on the procurement framework of the ONGC, at 13:58:56 hours. 49. Coming next to the activity, if any, after the last file was uploaded by the petitioner at 13:58:46....
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....he following activities could have performed by the petitioner by using the "edit mode" :- (i) Read only (Abort) (ii) Check (iii) Visit to Technical Documents (iv) Close (v) Save (vi) Delete (vii) Load remaining files 52. Even on applying simple logic, we do not find any force in the aforesaid submission. After the petitioner had virtually reached the last step in the bidding process and had uploaded all the eight documents, which formed part of its Financial Bid and had signed them digitally so that they had got saved on the e-portal of the respondent No.1/ONGC at 13:58:56 hours, knowing very well that it was running against time and had just about one minute left before the submit deadline, instead of taking the last step of clicking the "Submit Button", no reasonable person would be expected to take a step back and go to the "edit mode" to undertake any of the seven activities cited above. On coming so close to the deadline, the next plausible course of action was to straightaway click the "Submit Button". In this background, the report of FSL to the effect that two activities were duly recorded in the petitioner&....
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....to the computer resource of the addressee, i.e., respondent No.1/ONGC. There is no dispute about the fact that the respondent No.1/ONGC had designated a computer resource and carved out areas in its server that were demarcated for each vender, who was assigned an ID and a password to access the said area and read any file there. In the very same server is an area that was carved out exclusively for the respondent No.1/ONGC, where the Bid was ultimately required to be transmitted by the petitioner and other bidders. Till the submit deadline, i.e. till 14:00:00 hours on 05.02.2018, the respondent No.1/ONGC could not have had any access to the area demarcated for the petitioner or any other bidders, but after close of the bids, neither the petitioner, nor any other bidders could access the area where their electronic data was stored on the server of the respondent No.1/ONGC. After the deadline, only a designated person of the respondent No.1/ONGC was authorized to have reading access to the said bids. 56. The joint report of the FSL dated 12.04.2018, clearly states that on 05.02.2018, eight documents were uploaded by the petitioner between 13:47:33 hrs. to 13:58:43 hrs. on the e-po....
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....d and maintained the e-portal on which the bids were submitted. NIC had opined that there was no technical glitch in the system and because the respondent/writ petitioner had omitted to press the "Freeze Button", its bid was defective. Aggrieved thereby, the respondent/writ petitioner had filed a writ petition before the High Court of Bombay. Vide judgment dated 28.09.2017, the writ petition was disposed of with directions issued to NIC to access the files containing the bid documents of the bidder and transfer/make them available to the petitioner for purposes of decrypting and the said bid be considered alongwith others in the fray. 59. Aggrieved by the said decision, the petitioner in the captioned case had approached the Supreme Court that had identified two issues for a decision. Firstly, whether the bid documents that were uploaded by the respondent/writ petitioner could be retrieved or were irretrievably lost. Secondly, assuming that the bid documents could be retrieved, whether the first respondent was at all entitled to consideration of the bid submitted by it. On directions, NIC had filed an affidavit before the Supreme Court stating inter alia that the data uploaded b....