The GFR does not provide for remedies and enforcement under the procurement process. However, Rule173 stipulates that the bidding document should make suitable provision for settlement of disputes, if any, arising from the resulting contract.

A challenge to a tendering process or any disputes in relation to a tendering process can be brought before the courts of law in the same was as any ordinary civil dispute; in compliance with the Code of Civil Procedure, 1908. Further, disputes regarding the tendering process can also be subject to judicial review by a High Court or the Supreme Court under their writ jurisdiction, among other things, on the ground of arbitrariness, unfairness in action, mala fides or violation of the fundamental or legal rights as enshrined in the Constitution of India, which include the doctrine of reasonableness.

There is no specific forum before which disputes regarding a public procurement are heard. Disputes may be brought before the appropriate forum for civil disputes in accordance with the Code of Civil Procedure, 1908 or may be brought before the High Courts or Supreme Court under their writ jurisdiction.

In terms of the courts' civil jurisdiction, the Limitation Act, 1963 prescribes the limitation period for filing an application in the appropriate judicial forum to redress a grievance. In most civil cases, including for specific performance of a contract and compensation for breach of a contract, the prescribed limitation period is three years from the date of the occurrence of the relevant cause of action. 

In circumstances where the parties invoke the writ jurisdiction of the High Court or Supreme Court, no specific time limits are prescribed. The courts have developed the doctrine of laches, where expediency in seeking relief is warranted and those guilty of inexplicable or unreasonable delays may be deemed unable to bring a suit.

Indian courts while dealing with the scope of judicial review in matters related to tenders and public award of contracts have been consistent in upholding the Government's freedom to enter into contracts of a commercial nature and make its own decisions. In Tata Cellular vs. Union of India (1994) 6 SCC 651 it was observed that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism[1]. The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 

While discussing the grounds for review in tender related cases, the Hon'ble Supreme Court in Tata Cellular vs. Union of India (supra) had observed that in such cases the duty of the court is to confine itself to the question of legality. The courts concern should be whether a decision-making authority: 

1. exceeded its powers; 
2. committed an error of law; 
3. committed a breach of the rules of natural justice;
4. reached a decision which no reasonable tribunal would have reached; or 
5. abused its powers.

[1] Asia Foundation & Construction Ltd. vs. Trafalgar House Construction (I) Ltd. And Others, (1997) 1 SCC 738

In Reliance Airport Developers (P) Ltd. vs. Airports Authority of India and Others, (2006) 10 SCC 1, while dealing with the question of the grounds of judicial review in an administrative action, the Supreme Court of India had classified three heads, the grounds on which administrative action is subject to control by judicial review. The first ground is illegality the second irrationality, and the third procedural impropriety. 

In Siemens Public Communication Networks vs. Union of India AIR 2009 SC 1204, the Supreme Court of India observed that when the power of judicial review is invoked in the matters relating to tenders or award of contracts, certain special features have to be considered. A contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions. In such cases principles of equity and natural justice stay at a distance. If the decision relating to award of contracts is bona fide and is in public interest, Courts will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is a procedural lacuna.

In India, the trend points to judicial restraint in administrative action. Courts do not sit as a court of appeal but merely review the manner in which the decision was made.[1]

If however, infirmities are found in the procedure adopted by the contracting authority or if the Court finds the decision taken by the contracting authority arbitrary or unfair, the award of an ongoing tender may be the same may be reverted.

[1] Tata Cellular vs. Union of India (1994) 6 SCC 651

In the event of a successful review proceeding, there have been considerable instances in which the award of the contract has been cancelled and fresh tenders have been invited by the concerned authority. In some cases, without cancelling the entire tender process the contracting authority is required to re-evaluate bids.

The time period or the culmination of a judicial proceeding depend on the specific circumstances of the case and depending on the nature of the claim, stakeholders involved and other factors a typical review proceeding before courts may take between 6 to 12 months or even more in some cases.

Depending on the conditions of every tender, unsuccessful bidders are usually notified of the award and selection of the preferred bidder at the time of announcement of the result simultaneously with all other bid participants.

While there have been isolated instances of review proceedings being initiated in relation to procedural infirmities in procurement procedures these may not be termed as common occurrences.

Please see the response to (k) above.

The Supreme Court's decision in Ramana Dayaram Shetty vs. International Authority of India, (1979) 3 SCC 489, is a landmark judgment on the issue of administrative action and is also applicable to public procurement. The Supreme Court observed that where the Government is entering into contracts or granting other forms of largesse, the Government cannot act arbitrarily at will and, like a private individual, deal with any person it pleases. Instead, its actions must be in conformity with standards or norms which are not arbitrary, irrational or irrelevant, and if the Government departs from such standards or norms in any particular case or cases, the actions of the Government are liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. 

In Nagar Nigam, Meerut vs. Al Faheem Meat Exports Pvt. Ltd and Ors., (2006) 13 SCC 382, the Supreme Court laid down that the law is well-settled that contracts by the State, its corporations, instrumentalities and agencies must normally be granted through public auction/public tender by inviting tenders from eligible persons. The notification of the public auction or for inviting tenders should be advertised in well known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, the subject-matter of auction, technical specifications, estimated cost, etc. The award of government contracts through public auction/public tender is to ensure transparency in the public procurement process, to maximise the economy and efficiency of government procurements, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concerned.

In Raunaq International Ltd. vs. IVR Construction Ltd. and Ors., (1999) 1 SCC 492, the Supreme Court observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. It listed out the following as being the commercial considerations which are of paramount importance in arriving at a commercial decision: 

• the price at which the other side is willing to do the work; 
• whether the goods or services offered are of the requisite specifications; 
• whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involve the engagement of substantial manpower or require specific skills to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; 
• the ability of the tenderer to deliver goods or services or to do the work of to a requisite standard and quality; 
• past experience of the tenderer, and whether they have successfully completed similar work previously; 
• time which will be taken to deliver the goods or services; and often; and 
• the ability of the tenderer to take follow up action, rectify defects or to give post contract services.

Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State, public body or agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.

The overarching view, as stated by the Supreme Court in Master Marine Services Pvt. Ltd. vs. Metcalfe and Hodgkinson Pvt. Ltd. and Anr., (2005) 6 SCC 138, is that the Government must have freedom of contract – but considerations of fair play are necessary for an administrative body functioning in an administrative sphere. In Global Energy Ltd. vs. Adani Exports Ltd., (2005) 4 SCC 435, the Supreme Court observed that it is well settled that the terms of an invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of a tender, as they are in the realm of contract, unless the terms are wholly arbitrary, discriminatory or actuated by malice. In a similar vein, the Supreme Court in Tata Cellular vs. Union of India, (1994) 6 SCC 651, noted that judicial review does not mean the court should take over parties' contracting powers. The parameters for interference in such matters would be (i) mala fides, (ii) bias, and (iii) arbitrariness to the extent of perversity. If none of these are present, the court should not interfere. It must be left to the authorities.

With respect to negotiations, the Supreme Court in Nagar Nigam, Meerut vs. Al Faheem Meat Exports Pvt. Ltd and Ors., (2006) 13 SCC 382, has clearly opined that in rare and exceptional cases, having regard to the nature of the trade or largesse or for some other good reason, a contract may have to be granted by private negotiation, but normally that should not be done as it damages public confidence. In rare and exceptional cases, for instance during natural disasters and emergencies declared by the Government; where the procurement is possible from a single source only; where the supplier or contractor has exclusive rights in respect of the goods or services and no reasonable alternative or substitute exists; where the auction was held on several dates but there were no bidders or the bids offered were too low, etc., the normal rule may be departed from and such contracts may be awarded through private negotiations.