w w w . L a w y e r S e r v i c e s . i n



Megha Engineering and Infrastructures Ltd V/S Oil India Ltd.

    WP (C) 9193/2019

    Decided On, 27 August 2020

    At, High Court of Gauhati

    By, THE HONORABLE JUSTICE: PRASANTA KUMAR DEKA

    For Petitioner: Ashok Saraf, Senior Advocate and A. Goyal, Advocate And For Respondents: S.N. Sarma, Senior Advocate and A. Kalita, Advocate



Judgment Text

1. Heard Dr. A Saraf, learned Senior counsel assisted by Mr. A Goyal, learned counsel for the petitioner. Also heard Mr. SN Sarma, learned Senior counsel assisted by Mr. A Kalita, learned counsel for the respondents.

2. The petitioner company involved in providing complete solutions for the offshore oil and gas industry combining customized engineering, procurement, fast-track project management and state of art fabrication capabilities meeting the stringent timelines, conforming to international safety standards. The respondent Oil India Limited (OIL) came out with an invitation to bid under the International Competitive Bidding (ICB) under Single Stage 2 Bid system format through IFB No. CPG2023P20 for Engineering, Procurement, Construction, Testing and Commissioning of a Modular Field Gas Gathering Station (FGGS) at Baghjan, Assam (hereinafter referred to as the project). The bidding process in two bids system consists of the Techno-Commercial Bid which was to be submitted. The technical bid was supposed to be opened on the day of the bid submission and commercial bid was supposed to be opened after the technical evaluation. The submissions of the bids were to be made on "Oil E Procurement site (both un-priced techno-commercial and priced bid by bidders)".

3. The respondent OIL extended the time for submission of the bid six times. The original date for submission of bid was 29.08.2019, which was extended to 12.09.2019, 16.10.2019, 30.10.2019, 07.11.2019 and finally vide corrigendum No. 11 extended to 14.11.2019. The schedule date and time for submission of the bids was 14.11.2019 upto 11:00:00 Hrs.

4. The petitioner prepared its bid and commenced uploading of the technical bid documents on 23.09.2019 at 07:42:02 hrs and continued uploading of the technical bid documents on 23.10.2019, 13.11.2019 and till 06:20:51 hrs of 14.11.2019. Thereafter the petitioner uploaded the Price Bid on 14.11.2019 before 10:30:00 hrs as stated in the petition. It is stated that after successful uploading of Technical and Price Bids, the petitioner started submitting the bid from 10:30:00 hrs on 14.11.2019 by pressing the 'submit' button but noticed that the 'submit' button was not responding and as such the petitioner tried many times by pressing 'submit' button till 10:49:56 hrs. Re-logging the web page did not yield any result as the icon button of 'SUBMIT' on the web portal remained non-responding and inactive till closure of the schedule time on 14.11.2019.

The said NIT stipulates the following clauses which are extracted hereinbelow the same being relevant in deciding the issues.

12. SUBMISSION OF BIDS:

12.3 The tender is processed under Single Stage-Two Bid system. Bidder shall submit the technical bid and priced bid along with all the annexures and proforma (wherever applicable) and copies of documents in electronic form through OIL's e-procurement portal within the Bid Closing Date & Time stipulated in the e-tender. For submission of Bids online at OIL's E-Tender Portal, detailed instructions are available in "User Manual" available in OIL's E-Tender Portal. Guidelines for bid submission are also provided in the "Forwarding Letter'. The technical Bid is to be submitted as per Terms of Reference/Technical specifications of the bid document and priced bid as per the price schedule. The technical bid should be uploaded in the "Technical RFx" Tab Page only. Prices to be quoted as per Proforma-B should be uploaded as Attachment just below the "Tendering Text" in the attachment link under "Notes & Attachments" Tab under General Data in the e-portal. No price should be given in the "Technical RFx", otherwise bid shall be rejected. The priced bid should not be submitted in physical form and which shall not be considered.

However, the following documents in one set should necessarily be submitted in physical form in sealed envelope super scribing the "IFB No., Brief Description of services and Bid Closing/Opening date & Time along with bidder's name and should be submitted to ED-Projects, Project Department, Oil India Ltd., Duliajan- 786602 (Assam) on or before 12.45 Hrs (IST) on the bid closing date indicated in the IFB:

i) The Original Bid Security along with 1 (one) copy

ii) Power of Attorney for signing of the bid digitally

iii) Any other document required to be submitted in original as per bid document requirement

iv) Printed catalogue and literature if called for in the bid document. Documents sent through E-mail/Fax/Telephonic method will not be considered.

12.4 All the conditions of the contract to be made with the successful bidder are given in various Sections of the Bid Document. Bidders are requested to state their non-compliance to any clause as per Proforma -C of the bid document and the same should be uploaded along with the Technical Bid.

12.5 Timely delivery of the documents in physical form as stated in clause 12.1 above is the responsibility of the bidder. Bidders should send the same through Registered Post or by Courier Services or by hand delivery to the Officer in Charge of the particular tender well before the Bid Closing Date and Time. Company shall not be responsible for any postal delay/transit loss.

12.6 Bids received through the e-procurement portal shall only be accepted. Bids received in any other form shall not be accepted.

14. DEADLINE FOR SUBMISSION OF BIDS:

14.3 Bids should be submitted online as per the online tender submission deadline. Bidders will not be permitted by System to make any changes in their bid/quote after the bid submission deadline is reached. Bidders are requested to take note of this and arrange to submit their bids within the submission deadline to avoid last minute rush/network problems.

14.4 No bid can be submitted after the submission deadline is reached. The system time displayed on the e-procurement web page shall decide the submission dead line.

14.5 The documents in physical form as physical form as stated in clause 12.1 must be received by the Company at the address specified in the "Forwarding Letter" on or before 12.45 Hrs (IST) on the Bid Closing Date mentioned in the "Forwarding Letter". Timely delivery of the same at the address mentioned in the Forwarding Letter is the responsibility of the Bidders."

It also specifies as stipulated in clause 8 of the bid package the methodology for submission of the tender and "Vendor User Manual" is also displayed in the website.

5. The writ petitioner raises the issue of arbitrary and discriminatory failure of the respondent OIL to recognize electronic submission of the petitioner's bid for the project NIT under IFB No. CPG2023P20. The petitioner had electronically digitally signed, saved and submitted the bid by pressing the "submit button" on the website of the respondent OIL before 11.00 Hrs. on 14.11.2019 but the system of the respondent erred and failed to change the status of the petitioner's bid from "saved mode" to "submitted mode". It is submitted that there was no fault which could be attributed to the petitioner and as such failure and/or malfunction of the respondent's system deserves to be remedied by this court directing the respondent OIL to recognize the petitioner's bid as having been submitted and accordingly carry out the process of tender.

6. Dr. Saraf, the learned Senior counsel for the petitioner submits that the non-consideration of the petitioner's bid after the petitioner had (i) uploaded the bid, (ii) digitally signed the bid (iii) saved the bid (iv) press the submit button on the respondent's E-procurement site before 11.00 hours on 14.11.2019 due to failure of the respondent's own system and to acknowledge such submission is irrational, arbitrary and discriminatory. Once the petitioner had duly submitted the bid in the portal prior to the stipulated deadline for the submission of the bid, the offer of the petitioner is beyond his control and same having put into the course of transmission to the respondent is an unequivocal offer in the eyes of law. In support of his contention, Dr. Saraf relies Bhagwandas Goverdhandas Kedia Vs. Girdharilal Parshotamdas and Co. reported in : (1966) 1 SCR 656 wherein it was held that in cases of contract by correspondence or telegram, a different rule prevails and acceptance is complete as soon as a letter of acceptance is posted or a telegram is handed in for dispatch. Acceptance is complete as soon as the acceptor puts his acceptance in the course of transmission to the proposer so as to be beyond his power to recall.

7. Dr. Saraf further relies Baroda Oil Cakes Traders Vs. Parshottam Narayandas Bagulia & Anr. Reported in : AIR 1954 Bom 491 wherein it was held that:

".communication of the acceptance to the proposer cannot be said to be such an integral part of the completion of the contract as to constitute a part of cause of action. In a suit on the said contract even if the acceptance does not reach the proposer for the reason that it is lost or misplaced in transit, the contract would be complete and for its breach the proposer would be entitled to sue In damages."

8. Dr. Saraf relies a decision dated 25.05.2018 of the Hon'ble Delhi High Court passed by a Division Bench in the matter of L & T Hydrocarbon Engineering Vs. ONGC in WP(C) 1429/2018 the relevant portion of which is extracted herein below:

"61. Thereafter, the petitioner has no role to play insofar the lack of timely response of generating an acknowledgment within the system of the respondent No. 1/ONGC is concerned, which glitch could have occurred for several reasons, as was stated before us by the experts. Without going into the reasons for the occurrence of the said technical glitch, suffice it is to note that there was two perceptible activities recorded in the area demarcated for the petitioner in the server of the respondent No. 1/ONGC that would strongly indicate that the petitioner had managed to beat the clock and had submitted its Techno-Commercial Bid just before the submit deadline, i.e. 14:00 hours, on 05.02.2018.

62. On a conspectus of the decision recorded hereinabove, the present petition succeed. We are of the opinion that the petitioner had submitted its bid within the deadline. Since we have noted above that the eight attached files of the petitioner have been encrypted and "held" in the security audit logs of the respondent No. 1/ONGC it is now for the ONGC to decrypt the said files. On the respondent No. 1/ONGC retrieving the bid of the petitioner, it shall be permitted to participate in bidding process alongwith the other bidders."

9. Accordingly, it is the contention of Dr. Saraf that no prejudice would be caused to the other bidders if the petitioner's bid is allowed to be considered inasmuch as the bid of the petitioner was already uploaded in the portal of the respondent within the allotted time and no changes would be made by the petitioner. The respondent is in position to retrieve the documents submitted in the bid by the petitioner. Due to technical fault/glitch disallowing the petitioner to participate in the tender process would not in any way serve the public interest, rather keeping in view the tender in question involving huge amount of public money it would be in the interest of the State to have wider choice and promote a healthy competition. In support of the said contention, Dr. Saraf submits that a total number of four companies participated in the bid process including the petitioner. Exclusion of the petitioner's bid would reduce the competition and the same would not be in the best of the public interest. Reiterating that it was due to the failure of the respondent's system the petitioner's bid could not be changed from the "saved mode" to "submit mode" and accordingly non-extension of deadline to rectify the respondent's own failure is arbitrary, discriminatory and without any rational basis. Accordingly, he sought for interference by this court.

10. Mr. Sarma, learned Senior counsel on behalf of the respondent OIL vehemently objected to the contention made by Dr. Saraf. In support of his contention Mr. Sarma referred clause 14 stipulating deadline for submission of bid wherein it is specifically mentioned that the bid should be submitted online as per the online tender submission deadline and the bidders will not be permitted by system to make changes in their bid after the bid submission deadline is reached. It was specifically mentioned in the said clause with a request that the bidders arrange to submit their bid within the submission deadline to avoid last minute rush/network problems. The system time displayed on the e-procurement web page shall decide the submission of deadline. It is also submitted that the documents in physical form as stated in clause 12.1 though received by the company from the petitioner on or before 12.45 hours on the bid closing date, that itself is not sufficient to consider the case of the petitioner in the present factual matrix inasmuch as it is specifically stated in the bid package that the bid uploaded in the portal of the respondent will be considered and not in any other form.

11. Mr. Sarma further argues that the system of the respondent was healthy and there was no failure as alleged by the petitioner. It is the contention that due to failure of the system of the petitioner the bid could not be converted from "saved mode" in the website of the OIL to "submit mode". As the bid of the petitioner was not found at that relevant point of time in the portal of the respondent, accordingly, it was not considered and technical bids were already opened. The question of consideration of the bid of the petitioner does not arise at all inasmuch as it is the condition of the NIT that only online bids would be considered. With the said submission, Mr. Sarma submits that the writ petition has no merit and is liable to be dismissed.

12. I have given due consideration to the submissions of the learned Senior counsel. This writ petition is taken up for its disposal at the motion stage after receipt of the opinion from Indian Institute of Technology, Guwahati [IIT (G)] considering the nature of issue involved and also due to the interim order passed by this court restraining respondent OIL from taking a final decision without the leave of this court in the tender process. Before entering into the discussions on merit of the claim of the petitioner, it would be proper to have an idea as to how the process of the "E-tendering" works. [Source: Central Public Procurement Portal].

13. "E-tendering" has been readily adopted and implemented by almost all Government departments and public sector undertakings to bring in transparency in the tendering process. Besides eliminating the scope of malpractices and fraudulent acts, the mechanism inherent in E-tendering process has the benefit of reduced human error, elimination of paper works, standardization of documents and saving of time and labour. The mechanism has obviously benefitted both 'Client' (Bid inviting entities) and 'Vendor' (Bidders).

14. E-tendering process possesses three basic components-firstly, there is an E-portal server which is hosted by an agency or Government department duly authorized under the law. Secondly, there exists an web i.e. e-network or internet operated by one or more network service provider(s). Thirdly, the interface between the communication backbone and the man. This interface is the computer through which the client and the vendor communicate with the E-portal server through the available e-network or web operated by the service provider.

15. The system is made available as a platform and can easily be adopted for all kinds of procurement such as goods, services and works. It aims at transparency and non-discrimination amongst bidders, by allowing free access to tender documents, clarifications, secure online bid submission and access to bid opening event to all, from any place on 24 X 7 basis, using the system through internet in a faster, and secure environment adopting industry standard open technologies. Variety of procurement requirements of varied procuring entities has been built in a robust configurable, workflow based manner. This can be configured for use by an organization at its apex level, and at multiple subordinate levels, at which tenders could independently be floated.

16. The process involves online vendor registration for obtaining user ID and Password on payment of the requisite tender fee. Normally the process takes around one week subject to furnishing of complete information by Bidders as stipulated by the host of the E-portal. Then comes the step of uploading of Digital Signature Certificate (supplied by Government certified authorized agency). After uploading of the Digital Signature Certificate (DSC) by the intending user and acceptance of the same by the E-portal, the user is now eligible to invite or offer Bid on E-portal. The DSC may involve the stipulation of two certificates by many organizations/Government departments-one is 'Signature Certificate' and the other one is 'Encryption Certificate'. Under such circumstances, the uploading and acceptance of both these certificates shall be mandatory.

17. E-Bidding process-An ideal system of steps for a registered e-bidder may involve the following steps as shown in the following Flow Chart:-

[Log in with ID and password] => [Verification of Signature, Certificates & Encryption Certificate by the E-portal] =>[Acceptance by the E-portal] => [Submission of Bid Documents].

18. Many of the Central and State Government undertakings, institutes have chosen the Central Public Procurement Portal hosted by NIC (National Informatics Centre) which is a wing of the Ministry of Electronic and Information Technology for processing their bids. However, Oil India Limited has their own e-tender portal with following page link:

https://e tender.srm.oilindia.in/irj/portal.

The website of respondent OIL namely www.oil-india.com contains separate web pages for vendors who may be interested in participating in the bidding process. Thumb nailing in button "For Vendors" exhibits number of menus. The popped up menus inter alia contain important sub-menus which are expected to be referred by the prospective vendor before participating in E-procurement process. Two such menus are 'E-Tender' and "E-Tender Notification'.

19. The "E-Tender Notification" buttoning leads to a popped up page containing inter alia two important pages viz. (i) Vendor Manual and (ii) Guidelines to Bidders for participating in OIL. The 'E-Tender' buttoning guides one to a page where another link is indicated for New Portal users namely- "Click for user Manuals". Pressing the link leads to "Download user Manual Files". It is imperative that a prospective bidder goes through these documents thoroughly. These " User Manual Files" contain six important files as hereunder:

(i) FAQ_OIL_2016.pdf, (ii) Guidelines to Bidders for participating in OIL. pdf (iii) Important points for the Bidders online payment. pdf (iv) NEW INSTRUCTION TO BIDDER FOR SUBMISSION.pdf (v) PASSWORD RESET.pdf. (vi) VENDOR USER MANUAL Rev 2.pdf. The said files are very elaborate and the explanations as illustrated in the documents are exhaustive and can be easily understood.

The respondent OIL has explicitly said in the aforesaid pdf file "FAQ_OIL_2016. pdf" of their E-procurement web page as follows:

"Important points to remember:

• Always check that your e-mail address in your registration is accurate. You will not receive notifications if this address is wrong.

• Bidders are requested to make note of clock being displayed on our e-tendering portal and to ensure that the bids are submitted before the closing time.

• Try to avoid responding at the last minute.

• Try to submit your Bids through e-tendering well in advance."

20. Thus last minute attempts for submission of Bid is clearly discouraged by OIL as the necessary help from OIL to resolve such problem(s) will not be possible. If attempted well in advance, and in the event of encountering any problem in submission, help could be extended by OIL as the pdf file "FAQ_OIL_2016.pdf" also incorporates a frequently asked question (FAQ) as hereinunder:

"What if I need help while submitting my electronic tender

If you need help while submitting your electronic offer/response, please contact our web administrations during Business Hours at:

Name: SRM Administrator Email: erp mm @ oilindia.in

Landline Nos. 03742807171/7192 Business Hours 07:00 to 15:30 Hrs India Times (IST) (GMT +5:30 Hrs).

Or you can also contact as per the contact details in the Tender Documents".

21. From the above it can be inferred that any last minute attempt and subsequent failure on the part of the Vendor to submit the Bid will disable him from seeking any possible help from the concerned officials of Oil India Limited due to paucity of available time. Not only in the respondent's E-portal but all Government E-portals including that of the National Informatics Centre (NIC) unambiguously declare in their E-procurement web portal that the Tender Inviting Authority (TIA) will not be held responsible for any sort of delay or the difficulties faced during the submission of bids online by the bidders due to local issues. The E-Tendering Manual of OIL also has mentioned as hereunder:

"E-TENDERING GUIDE FOR BIDDER

It may be noted that this is an offer to help bidders with E-Tendering Guide for downloading/uploading of bids during e-bidding process. OIL does not stand responsible on failure to upload the e-bids successfully based on these instructions".

22. Upon motion, vide order dated 06.01.2020, Mr. Sarma was allowed to take necessary instruction from the respondent OIL as to whether the technical bid of the present petitioner could be considered at the stage before opening the price bid. Keeping in view the technicalities involved in the issue before this court, Mr. Sarma was given liberty to request the concerned officials from the OIL in order to give specific reply to the instruction sought for by this court. The petitioner was also directed to submit affidavit in support of their contention in respect of encryption/decryption of the bids already saved allegedly in the portals of the respondent. On 10.01.2020, the following order was passed.

"10.1.2020

Heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. A. Goyal and Mr. P. Buttan, learned counsel for the petitioner. Also heard Mr. S.N. Sarma, learned Senior Counsel assisted by Ms. S. Ghosh learned counsel for the respondent, OIL.

Vide order dated 6.1.2020 this court was satisfied to order for taking necessary instruction from the respondent Oil India Limited as to whether the technical bid of the present petitioner could be considered at this stage but before opening price bid. Mr. Sarma learned Senior Counsel was given liberty to request the concerned officials from the OIL to be present in order to give specific reply sought for by this court.

Dr. Saraf, learned Senior Counsel was also given liberty to file opinion supported by an affidavit in respect of the process of encryption/decryption of the bid saved in the portals of the respondents. The petitioner filed opinion supported by an affidavit of Sri Vatrapu Manoj Reddy working as Software Engineer in M/s. Interactive Data Systems Limited Hyderabad opining as reproduced hereinbelow:

" I say that I have seen the email dated 5.1.2020 as filed by the respondent before this Hon'ble court on 6.1.2020 and I say that from the Email it is unambiguously confirmed that files which were uploaded by the Petitioner were successfully uploaded to the Web Portal of the Respondent and are available in the Respondent's database. Though as stated by the Respondent the files are in encrypted format hence they cannot be download though they are visible to them. It is respectfully submitted that this is only a security feature of Respondent's E-portal system in regard of "Bid Security Enhancement" as also stated by the Respondent in their email but it has nothing to do with downloading and encryption and decryption of the documents. It is respectfully submitted that it is well within the purview, power, authority and control of the respondent to give permission to their ERP team or web developer or any other authorised personal or authority to download the documents (as uploaded by the Petitioner) and once the documents are downloaded the contents of the documents will be visible and readable to/by the respondent. The documents once downloaded by the respondent from their web portal will convert the uploaded file from encrypted format to the decrypted format, which will then allow the respondents to view and read the contents of the documents so uploaded by the petitioner and available at the web portal of the respondent. I say I have sufficient knowledge on the subject and I say with affirmation that the respondent do not need any further confirmation or permission from the petitioner as the documents once downloaded can be viewed and read. I say that the documents were digitally signed by the authorised representatives of the petitioner which itself shows the authenticity of the documents so uploaded on the web portal."

In response to the said opinion Mr. Sarma, learned Senior Counsel submits another opinion by the Software Engineer/expert of the respondent which is reproduced hereinbelow:

"SRM(Supplier Relationship Management) e-tender Process Flow

OIL's e-tender portal is a standard SAP product used worldwide built in line with the best practices. OIL has also implemented " Bid Security Enhancement " in the e-tender process to enhance the integrity of the bids and ensure a fair and impartial process.

1. Before publishing a tender, OIL has to pre-define decryptor (OIL's employee) in the system for the tender.

2. The system allows a bidder to upload and save his bid documents in the e-tender portal only when the bidder has a "class-3: Digital Signature certificate & encryption key". When the bid is saved by the bidder, it is encrypted with a key which is a combination of the bidders key + the purchaser's key (predefine decryptor i.e. OIL). The system allows the bidder to decrypt, modify and upload his responses for this tender at any time(before or after submission deadline) since it is his own property.

3. Only when the bid is submitted by the bidder in the system, the encryption key is assigned to the pre-defined decryptors to decrypt the submitted bid documents using the encryption key.

Since the bidder has not SUBMITTED his bid, the encryption key is not assigned to the pre-defined decryptor thus it is not possible for the decryptor to decrypt and download the bids.

If it would have been allowed then this will violate the confidentiality and integrity of the bids thus defeating the entire purpose of the Bid Security Enhancement."

On perusal of the opinion it is difficult for this court to arrive at a decision inasmuch as it is apparent from both the opinions which are contradictory in nature. In order to remove this contradiction, in my considered opinion, expert opinion is required to be obtained from IIT, Guwahati and to that effect Registry to send a letter to the Director IIT, Guwahati. A copy of this order shall also be sent to the Director, IIT, Guwahati.

This court desires to know as to whether it is possible on the part of the OIL to decrypt already encrypted data by the petitioner in the portal of Oil India Limited. If so, which of the opinion aforesaid is acceptable.

In order to give the necessary inputs to the Director, IIT(G) the concerned head of the department, OIL will assign necessary officer/expert in this field acquainted with the system in existence of OIL. On the other hand, if the petitioner desires to send representative or expert in the field, the same shall have to be authorised by Registrar (Judl.) of this Court and necessary steps shall be taken by the Registrar(Judl.) in this regard. A copy of the communication from the Registry to Director, IIT(G) shall be served on the parties of this writ petition whereafter necessary effective steps shall be taken by the parties with the Director, IIT(G). Registry shall make an endeavour to get back the opinion/report from the Director, IIT(G), on or before 30.1.2020. Expenses if any, shall be borne by the petitioner to this writ petition.

In the meantime OIL shall go ahead with the tender process and before taking any final decision, the same must be done as per the leave of this court.

List on 3.2.2020."

23. On 04.03.2020, the report as sought for from the IIT, Guwahati was received. The same was opened which is extracted hereinbelow.



Professor &

Organizing Vice Chairman JEE-2009

Ex-Vice President-IIT Club

-------------------------------------------------------------------------------------------------------

25th February 2020

To

Sri DK Das

Registrar (Judicial)

Gauhati High Court,

Guwahati

Through: Prof. T.G. Sitharam

Director, IIT Guwahati

Assam 781039

Sub: In connection to WP(C) No. 9193/2019 dated 10.01.2020

Dear Sir,

The reviewers have received responses from OIL and MEIL, the Director, IIT Guwahati, received the following documents from OIL;

1. Response to the queries (File: 1 OIL- response.pdf)

2. Process flow (File: 2 oil process. pdf)

3. Bidders process flow (File 3 Oil-bidder.pdf)

And the following documents from MEIL;

4. Response to the queries (File:5_meil_response.pdf)

The reviewers have made the following observation from the above documents:

1. Both OIL and MEIL are well aware of the entire tendering process.

2. Both OIL and MEIL are well versed with SAP system that has been used in the bidding in question.

3. In particular, MEIL is aware of the fact and bid is considered only when "Submit" button is clicked, and mere saving of the documents in the system is NOT sufficient to claim successful completion of the process. (Ref. MEIL response to question 3.)

4. MEIL did attempt to complete the process just 15 minutes before the deadline (11.00hrs, 14 Nov 2019). However, the computer system that they were using did not respond to the "Submit" button. (Ref. MEIL response to question 3.) (Ref. OIL's response question 2, Screenshot-status "Incomplete")

5. OIL's security audit log shows that MEIL user V407449 was consistently connected to the OIL's SAP bidding system from 10.16.01 till 12.12.06 on 14 Nov 2019.

6. From points (4) and (5) mentioned above and the OIL's description of bidder's step, it is very likely that the problem faced by the bidder was local at his end. However, this cannot be verified as GUI action logs are not maintained by the system.

7. It is essential to note the reason why MEIL waited until the last minute to complete the submission. As mentioned in answer to question 2, MEIL does not trust SAP system for bidding. They believe that the purchaser can see any document as there is no encryption of the documents before submission.

8. The claim made in point (7) is not correct as OIL's process flow for a bidder has "Encrypt Bid" (Step 6).

9. The document submitted by MEIL are available in the OIL's SAP system. However, the documents are encrypted (ref. OIL's response 1 (d).

Question: Can OIL somehow decrypt MEIL's document

Answer: As MEIL has NOT submitted the bid, such a step would be to hack into the system. In other words, it would be an attempt to access and read files through a back door entry. As MEIL themselves have identified (see MEIL's response Annexure 7, 3/3), the task is non-trivial and would likely require access to human resources who have designed the SAP software product. To quote from MEIL's response.

"The above stated options have to be looked in deep when we have the system access and do a further analysis and test the end to end functionality bases on the result"

Question: What is the consequence if MEIL's documents can be decrypted by OIL without submission

Answer: The sanctity of the entire bidding process will be nullified. The reason is that if OIL can decrypt the document now, it could have also done the same in the past. Not only that, it can decrypt any document in any future bidding too. In conclusion, the software product used for the bidding process cannot be user trusted.

Prof P K Das"

24. In the opinion supported by affidavit of one Sri Vatrapu Manoj Reddy working as Software Engineer in M/s. Interactive Data Systems Limited, Hyderabad it is opined that the downloading, encryption and decryption of the documents are well within the power/authority of the respondent OIL to give permission to the web developer or any other authority to download the documents and once downloaded by the respondent from its web portal, same would convert the uploaded format which would then allow the respondents to view and record the contents of the documents so uploaded. On the other hand, the opinion of the OIL stated that before publishing a tender, OIL has to pre-define the decryptor in the system for the tender. The system allows a bidder to upload and save his bid documents in the e-tender portal only when the bidder has a Class-3: Digital signature certificate and encryption key. Encryption is the process of transforming plaintext data into an unintelligible form (cipher text) such that the original data either cannot be recovered (one-way encryption) or cannot be recovered without using an inverse decryption process (two way encryption). When the bid is saved by the bidder, it is encrypted with a key which is a combination of the bidder's key and the purchaser's key which is the pre-defined decryptor of OIL. The system allows the bidder to decrypt, modify and upload his response at any time both before or after submission deadline and it remains as the property of the bidder. But once the bid is submitted by the bidder, the encryption key is assigned to the pre-defined decryptor to decrypt the submitted bid documents using the encryption key. Thereafter the said submission, the petitioner has no control over the bid documents once the same are accepted by the system of the respondent.

25. Thus it is seen that in order to download the bid documents it is incumbent on the part of the respondent OIL to take the assistance of the web developer. The bid documents so saved but without submitting the encryption key to the pre-defined decryptor i.e. OIL the bid documents were at that relevant point of time in the computer resource of OIL but not outside the control of the originator, who is the bidder in this case. The control of the originator over the bid documents ceases only when the same are submitted by pressing the 'submit' button in the web portal. Because it is only when the bid documents are "submitted" by the bidder in the system, the encryption key is assigned to the pre-defined decryptor to decrypt the submitted bid using the encryption key. If we consider a tender by way of drop box system, the control of the bidder ceases once the same is dropped in the tender box under the custody of the principal calling the tender bids (client). The drop box tender system is referred in order to show that the basic concept of a tender system requires quotation of bid and submission of the same in a mode prescribed by the principal. The drop box tender is a mode prescribed for submission of the tender bids. In order to understand the term 'submit' in e-tendering process similar analogy as the one of drop box system in my considered opinion, is applicable i.e. the bidder must cease control over the bids uploaded in the e-portal of the respondent which is not the case in hand. Applying the ratio laid down in Bhagawandas Goverdhandas Kedia (Supra) it cannot be held that the bid documents were outside the control of the originator as the bid documents were still compliant for any changes to be brought by its originator. Section 13 of the Information Technology Act, 2000 stipulates that despatch of an electronic record occurs when it enters a computer resource outside the control of originator. But in the present case in hand, the act of despatch did not occur from the originator due to the reasons aforesaid i.e. non submission of the same by assigning the encryption key of the petitioner. Each bid documents are required to be digitally signed by the bidder for acceptance of the same by the e-portal of the respondent OIL. Whether in the present factual matrix the bid documents so digitally signed were available for use by the respondent OIL

26. The term "Availability" of any information or data as defined in schedule V of the Information Technology (Certifying Authorities) Rules, 2000 bring under its sweep the extent to which information or processes are reasonably accessible and usable, upon demand, by an authorised entity, allowing authorised access to resources and timely performance of time-critical operations. In the case in hand, the bid documents of the petitioner cannot be held to fall within the scope of the term 'Availability' for access as the same were not reasonably accessible and usable on demand by the respondent OIL because of non assignment of the encryption key by the petitioner when the respondent's system was healthy and that too within the submission deadline.

27. Let me consider the opinion of the IIT (G) dated 25.02.2020. It is observed that Megha Engineering Infrastructure Ltd. (MEIL) was aware of the fact that the bid would be considered only when 'submit' button was clicked and mere saving of the documents in the system was not sufficient to claim successful completion of the process. The fact that the bid documents were not outside the control of the bidders (Vendors) is established if the screenshot status of OIL is considered which is referred in the opinion as "incomplete". There was no defect in the system of the respondent OIL as in the report it was observed that OIL's security audit log shows that MEIL user V407449 was consistently connected to OIL's SAP bidding system from 10:16:01 hrs till 12:12:06 hrs on 14.11.2019. The time deadline for submission of bids was 11:00:00 hrs of 14.11.2019. Finally it was opined that the problem faced by the bidder was local at his end. But the same could not be verified as GUI action logs are not maintained by the system. This also led me to believe that the petitioner failed in timely performance of the time critical operation of submission of the bids if the audit trail logs of respondent OIL is considered and the petitioner also failed to establish any activities in the area of the petitioner in the e-portal of the respondent in that aspect before the submission deadline.

28. Admittedly the petitioner waited until the last minute to complete the submission of bids as it did not trust SAP system for bidding. The petitioner believed that the purchaser (respondent) might have access to any document as there was no process of encryption of the documents in the e-portal before submission. But the opinion affirmed that OIL's process flow for a bidder had "Encrypt bid". Thus it is found that there was willful disregard by the petitioner to the request of the respondent OIL not to wait for uploading of the bid documents till the last minute. There were other bidders in the bidding process but none encountered any problem with the system or the e-portal of the respondent.

29. From the aforesaid analysis it can be held that (a) there was no malfunctioning of the first component of the tender bidding process i.e. the host server for the E-portal. It is established that the server of OIL's E-portal was fully functional during the period referred when the petitioner encountered the problem; (b) The second component i.e. the Internet (Web) or the communication network the constituent of this system may comprise more than one sub systems which are owned by one or more service providers. The respondent OIL is not the owner of the internet services and hence OIL cannot be held responsible for any problem like date congestion on account of high internet traffic. This may be due to insufficient internet bandwidth, problem in routers and switches or any other issue concerning the communication backbone services; (c) The third component- i.e. the interface between the bidder (petitioner) and the internet, which enabled the computer system of the bidder in the interface. This system may have shortcomings either in the hardware or in the software inasmuch as the opinion of IIT (G) held that the problem was local at the bidder's end.

30. IIT (G) opined that the documents submitted by MEIL are in the OIL's SAP system in the encrypted form. On a specific query as to whether OIL somehow decrypt MEIL's document, it was opined that as MEIL did not 'submit' the bid, such a step would be to hack into the system amounting an attempt to access and read files through a back door entry. Further, the said process of retrieving was not an easy task. If the said process is undertaken, it was opined that the sanctity of the entire bidding process would be nullified.

31. A similar issue was raised before the Apex Court in Maharashtra Housing Development Authority Vs. Shapoorji Pallonji and Company Private Limited and other reported in : (2018) 3 SCC 13. The first respondent writ petitioner uploaded its technical and financial bid at about 1216 hours on 27.07.2017 on the website of the appellant MHADA. The first respondent writ petitioner claimed that though it had pressed the "freeze button" it would not get an acknowledgement of the bid submitted. Correspondences were entered into between the first respondent and the appellant MHADA whereafter the first respondent was referred to NIC which designed and maintained the e-portal on which bids were submitted. NIC took the view that the absence of acknowledgement of the submission of the bid by the first respondent writ petitioner was on account of its omission to press the "freeze button" and as there was no technical glitch which was amply demonstrated by the acknowledgement generated in favour of other bidders, the first respondent writ petitioner was not entitled to any consideration of its otherwise defective bid. Writ petition was filed wherein the Hon'ble High Court of Bombay issued directions to the NIC to access the files containing the bid documents of writ petitioner and transfer or make it available to MHADA which would decrypt the said files for its consideration as "valid bids". Being aggrieved the appellant, MHADA preferred the appeal before the Apex Court and directed NIC to file an affidavit to answer the following query:

"Whether the data uploaded by the respondent bidder Shapoorji Pallonji and Company Private Limited, receipt of which was not acknowledged on account of his alleged failure to press the "freeze button" is irretrievably lost by this time and cannot be retrieved under any circumstances"

32. The NIC filed an affidavit wherein it was stated that data uploaded by the first respondent-writ petitioner cannot be retrieved by NIC and MHADA jointly or severally under any circumstances with the prevailing Government of India Guidelines. It was further stated NIC cannot access the invalid bid documents since it has neither the keys nor the approved process to download the same pertaining to any packet. Though keys are available with MHADA but even with those keys the bid documents cannot be retrieved at that relevant point of time as the bid opening event had already been concluded. The Apex Court while allowing the appeal held as follows:

"9. If NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by travelling beyond the Government of India Guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system

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had failed to generate an acknowledgment of the bid documents in a situation where the first respondent claims to have pressed the "freeze button", the generation of acknowledgments in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confer on the said respondent a second opportunity, which cannot be countenanced." 33. The present case in hand is similar to the factual matrix in Maharashtra Housing Development Authority (Supra) inasmuch as it is the case of the petitioner that after having digitally signed, saved and submitted the bid by pressing the "submit button" on the respondent's website before 11.00:00 hrs on 14.11.2019 it failed to change the status of the petitioner's bid from "save" to "submit" mode. Here also let me consider the opinion of IIT (G) extracting the relevant portion of the query by the court: "Question: Can OIL somehow decrypt MEIL's document Answer: As MEIL has NOT submitted the bid, such a step would be to hack into the system. In other words, it would be an attempt to access and read files through a back door entry. As MEIL themselves have identified (see MEIL's response Annexure 7, 3/3), the task is non-trivial and would likely require access to human resources who have designed the SAP software product. To quote from MEIL's response. "The above stated options have to be looked in deep when we have the system access and do a further analysis and test the end to end functionality bases on the result" Question: What is the consequence if MEIL's documents can be decrypted by OIL without submission Answer: The sanctity of the entire bidding process will be nullified. The reason is that if OIL can decrypt the document now, it could have also done the same in the past. Not only that, it can decrypt any document in any future bidding too. In conclusion, the software product used for the bidding process cannot be user trusted." 34. From the aforesaid opinion, if the respondent OIL is directed to retrieve the bid of the petitioner it would amount allowing an act which is against the conscience of a judicial regime moreso, when there was no fault in the system of the respondent's e-portal. As held by the Apex court hereinabove, it would amount giving a second opportunity to the petitioner for submitting its bid. Further it would affect the other participants in the bidding process who completed the time critical operations with due diligence and this writ court cannot go beyond the scope of judicial review by interfering with the decision making process of the respondent OIL when non consideration of the bid of the petitioner was not arbitrary. 35. Dr. Saraf relied the Division Bench decision of the Hon'ble Delhi High Court in L & T Hydrocarbon Engineering Ltd. (Supra). But therein, the decision in Maharashtra Housing Development Authority (Supra) was held to be distinguishable on facts inasmuch as, in L & T Hydrocarbon Engineering Ltd. (Supra) the expert agency namely, FSL clearly stated in its reports that after clicking the "saved Button", the area demarcated for the writ petitioner in the server of the respondent No. 1/ONGC had recorded two activities before the cut off time but after the bid documents were saved in the server of ONGC. In the present case also the decision of L & T Hydrocarbon Engineering Ltd. (Supra) cannot be considered which is distinguishable on facts. Here OIL's security audit log shows that the petitioner user V407449 was consistently connected to OIL's bidding system from 10:16:01 hrs till 12:12:06 hrs on 14.11.2019. The screenshot status of OIL indicated "Incomplete". Petitioner as stated in the writ petition that from 10:49:56 hrs till 11:00:00 hrs on 14.11.2019 it tried to submit the bids by pressing the "Submit" button but the web-portal of OIL remained non responsive and inactive. But nothing was recorded in the Audit trail of the respondent OIL to that effect. It is opined that it was very likely that the problem faced by the petitioner was local at its end though the same could not be verified as GUI action logs were not maintained by the system. Accordingly, the issue was whether OIL somehow decrypt petitioner's document and the consequence thereof. The opinion says that the step for decryption would amount to hacking into the system and the task is also not an easy one. The act of decryption in the said factual matrix would hit the sanctity of the entire bidding process. For the said reason, the ratio in L & T Hydrocarbons Engineering Ltd. (Supra) cannot be applied in the present case. 36. In view of the discussions made above, I am not inclined to direct the respondent OIL to retrieve the bid document of the petitioner and consider the same in the tender process alongwith other bidders. Writ petition is dismissed. Interim order dated 10.01.2020 stands vacated.
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