Case Note & Summary
The dispute arose from a tender floated by respondent no.1 MIHAN India Ltd. for up-gradation, modernization, operation and management of Dr. Babasaheb Ambedkar International Airport, Nagpur. Petitioner no.1 GMR Airports Ltd., a public limited airport developer, submitted a bid on 28.9.2018 and, after negotiations, raised its revenue share offer from 5.76% to 14.49% at the request of the Project Monitoring and Implementation Committee. Respondent no.1 issued a letter dated 7.3.2019, which the petitioners contended was a Letter of Award accepting the revised bid subject to approval of Government of India for alienation of AAI land and formation of an SPV. Petitioner no.1 accepted the letter on 12.3.2019 and claimed a concluded contract, with execution of a Concession Agreement as the next step. Respondent no.1 delayed executing the Concession Agreement, leading petitioners to file Writ Petition No.1343 of 2020 seeking directions to execute it. On 19.3.2020, respondent no.1 communicated annulment of the bidding process without award of contract, citing directives from the Government of Maharashtra dated 16.3.2020 and invoking clause 2.16 of the RFP. The petitioners challenged this annulment in the present writ petition. Respondent no.1 argued that the letter dated 7.3.2019 was only a bid acceptance communication, not a Letter of Award, and was subject to further approvals; it relied on clause 3.3.6 of the RFP and argued that the Ministry of Civil Aviation had raised concerns about financial viability, leading to PMIC's decision on 14.10.2019 to cancel and re-tender. Respondent no.1 further contended that the 14.49% revenue share was extremely low and financially unviable, and that non-renewal of the bid security bank guarantee indicated petitioner's acceptance of annulment. Respondent no.2 supported annulment and fresh tendering for better revenue. The petitioners argued that the letter was a Letter of Award by its tenor, acceptance created a concluded contract, the conditions were mere formalities, clause 2.16 could not be invoked after bidding process concluded, and respondent no.2 had no role. The provided judgment text ends during the rival submissions and does not include the court's analysis, final decision, or ratio decidendi.
Issue of Consideration
Whether letter dated 7.3.2019 constitutes a Letter of Award/concluded contract; Whether annulment of bidding process under clause 2.16 of RFP after such acceptance is valid; Whether respondent no.2 had authority to direct annulment; Whether petitioners entitled to execution of Concession Agreement.
Case Details
2021 LawText (BOM) (08) 80
Writ Petition No. 1723 of 2020
Sunil B. Shukre, Anil S. Kilor
A.M. Singhvi, C.B. Dharmadhikari, M.G. Bhangde, R.M. Bhangde, N.P. Mehta
GMR Airports Ltd. and GMR Nagpur International Airport Ltd.
MIHAN India Ltd. and Government of Maharashtra
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Nature of Litigation
Writ petition challenging annulment of tender process for up-gradation, modernization, operation and management of Dr. Babasaheb Ambedkar International Airport, Nagpur.
Remedy Sought
Petitioners challenged the annulment of bidding process communicated by letter dated 19.3.2020 and sought execution of Concession Agreement.
Filing Reason
Respondent no.1 annulled the bidding process after petitioners claimed a concluded contract through Letter of Acceptance dated 7.3.2019, without executing the Concession Agreement.
Previous Decisions
Writ Petition No.1343 of 2020 filed by petitioners seeking direction to respondent no.1 to execute Concession Agreement; notice issued on 11.3.2020 and listed for final disposal on 18.3.2020; no final order mentioned in provided text.
Issues
Whether letter dated 7.3.2019 is a Letter of Award or only a bid acceptance communication, resulting in a concluded contract?
Whether annulment of bidding process under clause 2.16 of RFP after issuance of letter of acceptance is valid?
Whether respondent no.2 (Government of Maharashtra) had authority to direct annulment of tender process?
Whether petitioners are entitled to execution of Concession Agreement?
Submissions/Arguments
Petitioners: Letter dated 7.3.2019 is a Letter of Award by tenor and RFP terms; acceptance created a concluded contract; conditions are post-bid formalities for respondent no.1; execution of Concession Agreement was ministerial act; clause 2.16 cannot be invoked after bidding process concluded; respondent no.2 had no role in bidding process; subsequent conduct shows award.
Respondent no.1: Letter dated 7.3.2019 only communicated acceptance of revised bid for further consideration subject to approvals; no concluded contract; clause 3.3.6 of RFP; Ministry of Civil Aviation raised financial viability concerns; PMIC decided to cancel and re-tender on 14.10.2019; 14.49% revenue share extremely low and financially unviable; bank guarantee not renewed indicating acceptance of annulment.
Respondent no.2: Supported annulment; facts pointed out by respondent no.1; decided to call fresh tenders with different financial model for better revenue for public exchequer.
Judgment Excerpts
Petitioner no.1 raised its offer of revenue share from 5.76 % to 14.49 %.
respondent no.1 issued a letter of acceptance dated 7.3.2019, which petitioner no.1 says was a Letter of Award accepting the revised bid of the petitioner no.1 subject to further approval of GOI...
respondent no.1 annulled the bidding process without award of contract.
Mr.A.M.Singhvi, learned Senior Advocate submits that the letter of acceptance dated 7.3.2019 is actually a Letter of Award, if one goes by its tenor and terms and conditions of the RFP.
Procedural History
Petitioner no.1 submitted bid on 28.9.2018. Negotiations led to revised revenue share offer of 14.49%. Respondent no.1 issued letter of acceptance dated 7.3.2019, accepted by petitioner no.1 on 12.3.2019. Petitioners filed Writ Petition No.1343 of 2020 seeking execution of Concession Agreement; notice issued on 11.3.2020, listed for final disposal on 18.3.2020. Respondent no.1 received directive from Government of Maharashtra dated 16.3.2020 and annulled bidding process by letter dated 19.3.2020. Present writ petition filed challenging annulment. Judgment reserved on 12.7.2021 and pronounced on 18.8.2021.
Acts & Sections
