Adani Ports moves Bombay High Court against the disqualification of its bid

Adani Ports moves Bombay High Court against the disqualification of its bid

The company was disqualified by the Jawaharlal Nehru Port Authority from a 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 its bid.

The bid was in connection with the tender issued by the Board of Trustees of the Jawaharlal Nehru Port Authority (JNPA) for the up-gradation of its container terminal in Navi Mumbai.

Meanwhile, the vacation bench of Justice AK Menon and Justice NR Borkar has sought a response from the Board and it shall hear the matter on 13 May.

The case pertains to the tender of a global invitation of Request For Qualification (RFQ). The Board had invited applications from interested parties for the up-gradation, operation, maintenance and transfer of the Jawaharlal Nehru Port Container Terminal. This was to be done through a public-private partnership (PPP) for a concession period of 30 years.

The bidding process for awarding the tender comprised two stages. First, the qualification stage of the parties who prepared the application in accordance with the RFQ provisions. (The Board would then announce the qualified applicants to participate in the second stage). Second, was the bid stage wherein the applicants would send their Request for Proposals (RFP).

Adani Ports pleaded that the Board had issued a tender and commenced the first stage of selection for the bidding. Thereafter, it issued five addendums to the tender that required additional documents.

The company submitted the addendums by 28 October 2021, while the last date for submission was November 2. It also submitted the RFQ by 1 November 2021 and the Board had acknowledged its receipt.

However, a few days later, the Board sought some clarifications and put certain queries to Adani Ports to which the company responded promptly. The Board also raised a query on the termination of the concession agreement between the Visakhapatnam Port Trust (VPT) and Adani Vizag Coal Terminal Private Limited (AVCTPL).

Adani Ports responded that an arbitration tribunal had been adjudicating disputes between the parties on the matter. Subsequently, it informed the Board that it had cleared the qualification stage.

The Board asked it to make the payments for obtaining the RFP, which Adani Ports did and received the acknowledgment. It then received RFP and Concession Agreement and was asked to participate in the bid stage and submit its financial proposal.

But, before the bidding procedure began, the Board sent a notice to the company asking it to show cause why it should not be disqualified from the tender.

(The basis for the notice was an order of the Andhra Pradesh High Court which upheld the termination of the concession agreement by VPT).

On responding to the notice, the company was granted a personal hearing by the Board. Adani Ports then requested participation in the bid without any prejudice. However, on 2 May, the Board sent a letter to the company that as VPT had issued a termination letter, it was disqualified from participating in the tender process.

Adani Ports then filed a plea against it in the high court. It sought to restrain the Board from declaring the highest bidder under the tender and/or signing the concession agreement with any other bidder under the tender; in the event, that the highest bidder was declared and steps were taken in furtherance, the effect and operation be stayed; and in the alternative, permit Adani Ports to participate in the RFP stage.

While Crawford Bailey & Co represented Adani Ports, Vidhii Partners advised the Board of Trustees of JNPA.