Adani Ports Ltd moves Bombay High Court against disqualification by Jawaharlal Nehru Ports Authority in tender process

Adani Ports and Special Economic Zone Limited (Adani), a multi-location port developer and operator, has moved the Bombay High Court challenging the disqualification of their bid in connection with the tender issued by the Board of Trustees of Jawaharlal Nehru Port Authority (JNPA) for upgradation of its container terminal in Navi Mumbai [Adani Ports and Special Economic Zone Limited v. Board of Trustees of Jawaharlal Nehru Port Authority & Ors.].The tender issued was a global invitation of Request For Qualification (RFQ) calling for application from interested persons for the upgradation, operation, maintenance and transfer of Jawaharlal Nehru Port Container Terminal through a public private partnership (PPP) for a concession period of 30 years. The Board invited application from interested parties to shortlist competent applicants. The bidding process for awarding tender comprised two stages. The first was qualification stage involving qualification of interested parties who make an application in accordance with RFQ provisions. At the end of this, the Board was expected to announce suitable pre-qualified applicants, who would be eligible to participate in the second stage.The second stage was the bid stage wherein the applicants would send their Request For Proposals (RFP)..The plea by Adani said said that the Board had issued tender, thereby, commencing the first stage of selection for bidding. Thereafter, the Board issued five addendums to the tender, which included providing of additional documents, etc. Even though the addendums were issued till October 28, 2021, the last date for submission of RFQs was November 2, 2021. Adani submitted its RFQ by November 1, 2021 before the specified date and the Board acknowledged the receipt of the same. After a few days of submission, the Board sought some clarifications and put certain queries to Adani to which the company responded promptly, the plea said. The Board also raised a query on the termination of concession agreement between the Vishakhapatnam Port Trust (VPT) and Adani Vizag Coal Terminal Private Limited (AVCTPL). Adani responded that an arbitration tribunal is currently adjudicating disputes between the parties on the legality of the termination. Subsequently, Adani was informed that it had cleared the qualification stage and was asked to make the necessary payment to the Board for obtaining RFP which Adani did and received acknowledgement. After completion of the process, Adani stated that it received RFP and Concession Agreement and was asked to participate in the bid stage and submit their financial proposal. Before the procedure for bidding could begin, the Board sent a notice to the company asking them to show cause why they should not be disqualified from said tender. The basis for this notice was an order of the Andhra Pradesh High Court they came across where the Court had upheld the termination of the concession agreement by VPT. Adani responded to the notice, and was granted personal hearing by the Board. After such hearing Adani requested for a 'without prejudice' participation in the bid.However, the Board on May 2, addressed a letter to Adani that as VPT has issued termination letter to them, it has been disqualified from participating in the present tender process.The present plea was filed against the same. .In the plea, Adani sought the following reliefs:To restrain the Board of Trustees of JNPA from declaring the highest bidder under the tender and/or signing the concession agreement with any other bidder under the tender;In the event the highest bidder is declared and steps have been taken in furtherance to that, the effect and operation of the same be stayed;In the alternative, stay the effect, operation and implementation of the disqualification letter and permit Adani to participate in the RFP stage of tender..A vacation bench of Justices AK Menon and NR Borkar sought a reply from the Board of Trustees of JNPA and posted the matter for hearing on May 13, 2022. .Senior Advocates Ravi Kadam and Vikram Nankani with Advocates Shadab Jan, Siddharth Manek and Amogh Dabholkar appeared for Adani Ports. Senior Advocates Venkatesh Dhond with Advocates Abhishek Salian and Devansh Shah briefed by Vidhii Partners appeared for the Board of JNPA.