In a recent legal case, the court provided an in-depth analysis of the termination of a Concession Agreement in relation to disqualification in a tender process. The court’s examination of the clauses involved sheds light on crucial legal aspects impacting future tender participation. Let’s explore the insights provided by the court’s thorough legal analysis.
Facts
- The petitioner, M/s. Adani Port and Special Economic Zone Limited, filed Writ Petition No. 569 of 2022 under Article 32 of the Constitution of India.
- Prayers sought in the petition include declaring petitioner’s disqualification under the Tender illegal, revoking the disqualification, and issuing appropriate writs to allow participation in the bidding process.
- Disqualification of the petitioner was based on the termination of a Concession Agreement by the Visakhapatnam Port Authority, leading to reliance on Clause 2.2.8 of the Request for Qualification (RFQ) documents by the respondent No 1 (JNPA).
- Dr. A.M. Singhvi, along with Shri Neeraj Kishan Kaul, appeared as the counsel for the petitioner in the matter.
- The petitioner also filed Civil Appeal No. 5878 of 2022 to challenge the dismissal of the writ petition related to Tender No. JNP/TRAFFIC/MCB/PPP/2021/01 by the High Court of Judicature at Bombay.
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Arguments
- Dr. A.M. Singhvi, along with Shri Neeraj Kishan Kaul, represented the appellant/petitioner.
- There was a consensus to dispose of the proceedings as per the appellant’s prayer, with a request that termination of the Concession Agreement should not lead to disqualification for future tenders.
- The appellant agreed not to participate or claim rights in two specific tenders in process, as per the declaration made to the Court.
- Dr. Singhvi withdrew Writ Petition No 569 of 2022 with liberty to challenge specific clauses before the High Court, seeking an unbiased decision.
- The termination of the Concession Agreement was emphasized to not be a disqualification for future tenders due to unique circumstances.
- The appellant does not claim right to participate in the two tenders due to time elapsed and contracts already in place.
- The sequence of termination of the Concession Agreement by both parties was highlighted.
- Solicitor General appearing on behalf of the respondent – Board of Trustees of Jawaharlal Nehru Port Authority
- Shri Shyam Divan and Shri Huzefa Ahmadi appearing on behalf of M/s. J.M. Baxi Ports & Logistics Ltd.
- Key arguments presented by the respondent’s counsels in support of their case
- Summary of the respondent’s stance and defense in the case
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Analysis
- The appellant/petitioner is disqualified from participating in tenders due to the termination of the Concession Agreement dated 01.08.2011.
- Clause 2.2.8 of the RFQ documents was relied upon for the disqualification.
- The Concession Agreement was terminated by the Visakhapatnam Port Authority on 21.10.2020.
- The appellant/petitioner asserts that the termination by the respondent was a counterblast to their own termination of the Concession Agreement.
- The sequence of events regarding the termination of the Concession Agreement is a point of contention.
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Decision
- The termination of the Concession Agreement dated 01.08.2011 by the Visakhapatnam Port Authority will not disqualify the appellant/petitioner from participating in other tenders issued by public authorities.
- The appellant/petitioner has agreed not to participate in and have any claims regarding two specific tenders issued by the respondents.
- The termination of the Concession Agreement is not a disqualification for future tenders participation by the appellant/petitioner as per the agreement between the parties.
- Writ Petition No. 569 of 2022 is dismissed with the liberty for the petitioner to challenge Clause 2.2.8 of the RFQ documents or similar clauses before the High Court.
- The challenge against Clause 2.2.8 should be decided on its own merits and uninfluenced by previous judgments.
- The validity of Clause 2.2.8 of the RFQ documents was not the subject matter before the High Court or examined in the current judgment.
- The present Civil Appeal No 5878 of 2022 and Writ Petition No. 569 of 2022 are disposed of accordingly.
- The termination of the Concession Agreement dated 01.08.2011 is under dispute before the Arbitral Tribunal.
Case Title: ADANI PORTS AND SPECIAL ECONOMIC ZONE LIMITED Vs. THE BOARD OF TRUSTEES OF JAWAHARLAL NEHRU PORT AUTHORITY (2022 INSC 925)
Case Number: C.A. No.-005878-005878 / 2022
