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TMI Blog2025 (2) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... pted an obdurate and overly legalistic stance, causing a delay in the project's execution. 3. We begin by briefly discussing the facts of the case: o On 23.02.2023, BRO invited bids for the design and construction of two-lane twin tunnels, approximately 4.1 kilometres long, at Shinkun La Pass, including civil, electrical, and mechanical work, with approaches connecting the Darcha-Padam Highway to NHDL specifications in Himachal Pradesh and Ladakh. The estimated cost of the project was Rs.15,04,64,00,000/- (Rs. 1,504.64 crores). The project was to be completed within 48 months. The bid security amount was Rs.15,04,64,000/- (Rs. 15.04 crores) Ten bidders, including the Appellant, had submitted their online Technical and Financial Bids ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify the quoted amount of Rs.1,569 by providing a detailed price analysis, including the scope of work, completion schedule, risk allocation, safety requirements, and proof of capability to complete the project, by 31.08.2023. On 30.08.2023, the Appellant reiterated that their intended bid was Rs.1,569 crores, not Rs.1,569, attributing the error to a technical or typographical mistake. On 07.09.2023, the Appellant sent another letter stating they should not be considered the L1 bidder, and the bank guarantee of Rs.15,04,64,000 may be returned to them without encashment. On 12.09.2023, the Appellant again wrote emphasizing that the bid was an error and that the bid security should not be forfeited. Vide letter 16.09.2023, BRO, unmoved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Company Limited and Others (2001) 2 SCC 451, this Court referred to paragraph 84 of American Jurisprudence (2nd Edition, Volume 64 at page 944), which reads: "As a general rule, equitable relief will be granted to a bidder for a public contract where he has made a material mistake of fact in the bid which he submitted, and where, upon the discovery of that mistake, he acts promptly in informing the public authorities and requesting withdrawal of his bid or opportunity to rectify his mistake particularly when he does so before any formal contract is entered into." 6. Thereafter, reference was made to two decisions of the Supreme Court of the United States in Moffett, H. and C. Co. v. Rochester 178 U.S. 373 (1900) and Hearne v. New Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed after opening of bids, the bidder may be permitted to withdraw the bid." 7. This judgment also refers to a decision of the Superior Court of New Jersey in Spina Asphalt Paving Excavating Contractors, Inc. v. Borough of Fairview. 304 NJ Super 425 The said case is related to the rectification of mistakes in the bid specifications. Relief granted in the said case was upheld by the Superior Court with the caution that generally an error in the statement of a price would not be treated as immaterial and it is only when the case of error was patent and the true intent of the bidder obvious that such an error might be disregarded. 8. In West Bengal State Electricity Board (supra), the private party, the bidder did not succeed for several rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a rule of permissible priorities. 19. de Smith states that "proportionality" involves "balancing test" and "necessity test". Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of more than 4 kilometres in a hilly terrain can never be executed for a mere Rs.1,569/-. 11. At the same time, we agree with BRO, that the Appellant was at fault and had made the mistake, of having failed to add the required zeros in the financial bid. The plea of a system glitch should not be accepted, as others had successfully uploaded their bids without a problem. 12. BRO justified encashing the bank guarantee by citing delays caused by issuing a second notice inviting bids. This claim is baseless, as BRO was aware of the Rs.1,569/- error. Instead of declaring the bid non est due to the clear mistake, BRO asked the appellant to justify the bid, cancelled the notice, declared the Appellant a defaulter, invoked the bank guarantee, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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