The Jammu and Kashmir and Ladakh High Court in the case Ghulam Qadir Bhat and another V/s U.T of J&K and others observed and has ruled that merely by participating in the tender, no right is being created in favour of the bidder and the tenderer cannot be precluded from its option to cancel the tendering process on any grounds.
The bench headed by Justice Sindhu Sharma in the case observed and has clarified that the tendering process, thus, can be cancelled at any stage before finalisation and issuance of a letter of acceptance as there was no concluded contract between the parties.
In the present case, the petitioners Ghulam Qadir Bhat and another challenged the cancellation of e-NITs (electronic-Notice Inviting Tenders) by the Chairman of the State Level Purchase Committee, Sheep Husbandry Department, Jammu and Kashmir.
The court issued the e-NITs for the supply of Livestock (Sheep/Goat) from states with similar agro-climatic conditions for the Integrated Sheep Development Scheme.
It has been contended by the petitioner in the plea that they had completed all necessary formalities, participated in the tendering process, and were declared as L-1 (lowest bidders) in both e-NITs.
The court stated that despite the lapse of time, the respondents did not finalise the tendering process, prompting the petitioners to approach the High Court through a writ petition and despite the lapse of time, the respondents did not finalise the tendering process, prompting the petitioners to approach the High Court through a writ petition.
The court in the case stated that that despite being L-1, the petitioners lacked a binding contract with the department, the tender process, merely being an invitation to offer which is remained unfinalized and subject to the department’s discretion.
The court observed that the tender is only the invitation to offer and the other party makes an offer pursuant to the invitation to offer, as such, it is not obligatory to the authority issuing tender to accept the offer and no right is created on the basis of merely being L-1.
Therefore, the court stated that the respondents were well within their right to cancel the tender before the acceptance was made. A right would only be arisen when a contract comes into existence.
It has also been acknowledged by the said court that the department’s genuine concerns about protecting the genetic integrity of J&K sheep.
The Jammu and Kashmir and Ladakh High Court while taking note of the minutes of departmental meetings, presented as evidence, which revealed anxieties about diluting the local breed with potentially inferior animals from neighbouring state states, thus, Justice Sharma deemed these concerns as valid justifications for the cancellation, prioritizing public interest over individual gain. The court while considering the facts and circumstances of the case stated that the limited scope of judicial intervention in contractual matters.
The bench stated that the department’s right to cancel the tender before finalization stands unchallenged. Accordingly, the court dismissed the plea.