Decision of tendering authority cannot be subject to judicial review: Jawaharlal Nehru Ports Authority to Bombay High Court

Interpretation of tender conditions by authorities cannot be subject to judicial review, the Board of Trustees of the Jawaharlal Nehru Port Authority (JNPA) told the Bombay High Court while seeking dismissal of a petition filed by Adani Ports and Special Economic Zone Limited challenging disqualification of their bid in a tender [Adani Ports and Special Economic Zone Limited v. Board of Trustees of Jawaharlal Nehru Port Authority & Ors.]..In a detailed affidavit filed in response to Adani's plea, the JNPA stated that the interpretation of tender conditions and documents should not be second guessed by a court in judicial review proceedings."The writ court should refrain itself from imposing its decision over the decision of the authority as to whether or not to accept the bid of a tenderer,” the affidavit said.If there is a doubt about the prospective bidder with respect to their record, the tendering authority ought to have the right and sole discretion to disqualify such party, the JNPA emphasized..The affidavit came in response to Adani’s plea challenging the disqualification of their bid in connection with the tender issued by the JNPA for upgradation of its container terminal in Navi Mumbai.On Friday May 13, the authority informed the vacation bench of Justices AK Menon and NR Borkar that the opening of the bids has been postponed to June 15, 2022.In view of this statement, the bench posted the hearing of the matter post vacation on June 9..The JNPA in its affidavit, pointed out that courts have limitation since they do not have expertise to examine the terms and conditions of the present day economic activities of the State.Hence, JNPA prayed that even if courts concluded that there is total arbitrariness in the tender, it could relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract..The JNPA explained in its affidavit that the successful bidder has to bring in investment for replacement of existing cranes and machinery at Jawaharlal Nehru Port Container Terminal.The project involves financial implication and investment of over ₹827 crores.The authority reminded the Court that the injunction or interference in tender process would lead to additional costs on the State and would be against public interest.They contended that courts had been consistently holding that State and its citizens suffer by paying escalation costs, and by being deprived of the infrastructure sought to be provided by the authority.If the tender gets delayed, operations at JN port container terminal will come to a complete halt, the JNPA stated..Clarifying further why Adani Ports was disqualified, the JNPA gave the following reasons:Vishakhapatnam Port Trust, being a public authority, had terminated an agreement executed with an associate company of Adani Group;However, the company had false stated in the declaration form that they had never been terminated from any agreement before;The declaration stipulated that any declaration was discovered to be false, then JNPA had the right to reject a bid at any stage..Senior Advocates JJ Bhatt and Vikram Nankani with advocates Bulbul Singh, SS Jan, S Manek and A Dhabolkar briefed by M/s. Crawford Bayley & Co appeared for Adani.Senior Advocate Venkatesh Dhond with advocates Abhishek Salian and Devansh Shah briefed by Vidhii Partners appeared for the JNPA.