As technology has intervened, positively as well as negatively, in almost all aspects of life, it has also intervened into the system of public procurement by the government. It is established position that procurement of goods & services by the government are mostly done through the system of tender wherein government floats a 'Notice Inviting Tender', which has eligibility conditions for interested parties and other terms and conditions. Interested and eligible parties furnish theirs bids and the government agencies examine the bids of the parties.

After due consideration and negotiation with the parties, award the contract for goods or services to the most suitable party/ parties. Earlier the process of tender was conducted in physical form where 'Notice Inviting Tender' will published in news-papers etc. and the parties would physically furnish their respective bids. This system was prone to manipulation.

With the advancement of technology, it is now recommended by the government that the process of tender should be conducted online to bring more transparency into the system. As in online process there is minimal scope of manipulation. Several portals like Government e-Marketplace (GeM), E-procurement portal have now come up for the said purpose, where organizations intending to float 'Notice Inviting Tenders' online by giving appropriate instructions to the portal.

Problem:
However, like all systems, the online bidding process also gives rise to some problems. These problems can be of various natures. Sometimes, agencies who give instructions to float a bid may commit some error while entering the instructions to float the NIT thereby entire process may get vitiated. Some other times, the bidders who has to submit bid through the portal make mistakes while uploading document thereby their vital rights gets effected. Problems may arise due to internet connectivity issues and also due to general lag / error in the portal.

Legal Issue:
In some recent incidents, it has come to light that, due wrong option chosen by the organization who floated the bid, in a Notice Inviting Tender where highest bidder (H1) is to be allotted the contract the portal classifies the bidders in terms lowest to highest so the H1 bidder is classified as last of the lowest bidder. In this manner, only due to error in giving instructions to the portal by the tendering agency substantial right of the got impacted.

Court's View:
In one of such incident, the party, who was wrongly classified as the last of lowest bidder by the portal, filed a Writ Petition before the Hon'ble Delhi High Court and the Hon'ble High Court [judgement dated November 1, 2024 is WP(C) No. 11960/2023] passed orders in favour of the Petitioner directed the party who floated the tender to award the contract to the Petitioner and also directed the portal to make necessary correction as under:

1. In light of the undisputed fact that the Petitioner is an H1 bidder, and that the work contract must be awarded to the H1 bidder as per the tender conditions, the Respondents are directed to award the work to the Petitioner in terms of the NIT.
2. Learned counsel appearing on behalf of Respondent No. 1 was fair enough to state before this court that they will be awarding the work in question to the Petitioner within a period of two weeks from today.
3. The Respondent No. 2, GEM, is directed to make necessary corrections on the GEM Portal clarifying that the Petitioner is an H1 bidder in accordance with the terms and conditions of the NIT issued by the Respondent No 1.
4. With the aforesaid, the petition stands allowed.
5. The portal preferred a review of the above-said judgment. The Hon'ble Court, while disposing of the said review petition [judgment dated July 12, 2024 in WP(C) 11960/2023], directed the following in the review petition:
6. Needless to add, if any correction is to be made on the GEM Portal, the same shall also be facilitated by GEM without any grievance being raised.
7. It is made clear that GEM has no role in the award or non-award of work, as it is merely a portal to facilitate allocation of work to the Petitioner.

Conclusion
The portal is a medium through which the tender is processed. The rights of a party or tendering authority should not be adversely impacted due to error/ lag in the portal or mistake of the other party. However, if the mistake is committed by the party who has suffered then the party must suffer the consequences. The decision of the Hon'ble High Court also makes it clear that the portal is obliged to make rectifications, if required for fairly processing the tender.