Case Note & Summary
The Supreme Court disposed of a civil appeal and a writ petition concerning the disqualification of Adani Ports and Special Economic Zone Limited from participating in two tenders issued by the Board of Trustees of Jawaharlal Nehru Port Authority. The disqualification was based on Clause 2.2.8 of the Request for Qualification documents, which relied on the termination of a Concession Agreement dated 01.08.2011 by the Visakhapatnam Port Authority. The appellant contended that the termination was a counterblast following the respondent's earlier termination and was subject to pending arbitration before an Arbitral Tribunal. During proceedings, the appellant declared it no longer sought to participate in the specific tenders but prayed that the termination should not be treated as disqualification for future tenders by public authorities. The respondent and a contesting bidder, M/s. J.M. Baxi Ports & Logistics Ltd., consented to this approach. The court noted the broad consensus between the parties and the peculiar facts, including the pending arbitration. It disposed of the civil appeal by directing that the appellant shall have no claims regarding the two tenders and that the termination of the Concession Agreement shall not be treated as disqualification for future tenders issued by any public authorities. The writ petition was dismissed as withdrawn with liberty to challenge the validity of Clause 2.2.8 before the High Court, observing that the clause's validity was not examined in the present proceedings or by the High Court earlier. The decision was based on the parties' agreement and the appellant's undertaking, without expressing any opinion on the merits of the termination or the tender clause.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 32 of Constitution of India - Writ Petition Withdrawal with Liberty - Petitioner sought declaration of disqualification as illegal and mandamus to permit participation in bidding - Court allowed withdrawal of writ petition with liberty to challenge validity of tender clause before High Court - Held that validity of Clause 2.2.8 of RFQ documents was not examined and challenge may be made before High Court to be decided on merits (Paras 4.2, 9). B) Contract Law - Tender Disqualification - Concession Agreement Termination - Effect on Future Eligibility - Appellant disqualified from tenders due to termination of Concession Agreement by Visakhapatnam Port Authority - Termination was subject matter of pending arbitration - Parties reached consensus on disposal - Court disposed of appeal by directing termination shall not be treated as disqualification for future tenders by public authorities, given appellant's undertaking not to claim rights in specific tenders (Paras 8, 8(ii)).
Issue of Consideration
Whether the termination of a Concession Agreement, which is subject to pending arbitration, can be treated as disqualification/ineligibility for participating in future tenders issued by public authorities, and the appropriate relief in light of the appellant's undertaking not to participate in the specific tenders in question.
Final Decision
Civil Appeal No. 5878 of 2022 disposed of with directions: (i) appellant shall have no claims in respect of the two tenders, (ii) termination of Concession Agreement shall not be treated as disqualification for future tenders by public authorities. Writ Petition No. 569 of 2022 dismissed as withdrawn with liberty to challenge validity of Clause 2.2.8 before High Court.
Law Points
- Judicial review of tender disqualification
- interpretation of tender clauses
- effect of disputed contract termination on future eligibility
- principles of consent-based disposal
- withdrawal of writ petition with liberty to challenge
