Termination Of Agreement By Vishakhapatnam Port Authority Shall Not Disqualify Adani Ports From Participating In Future Tenders – SC
The Supreme Court while providing a major relief to Adani Port SEZ Ltd. concerning their disqualification to participate in future tender processes floated by public bodies has held that the termination of the agreement by Vishakhapatnam Port Authority shall not be treated as disqualification of Adani Port to participate in future tenders floated by public bodies.
A Bench of Justice MR Shah & Justice Krishna Murari observed –
"That in the peculiar facts and circumstances of the case and as agreed between the parties, termination of the Concession Agreement dated 01.08.2011 by Visakhapatnam Port Authority shall not be treated as a disqualification or ineligibility of the appellant/petitioner for the purpose of participating in any other tender issued by any public authorities in future."
Senior Advocates AM Singhvi along with Neeraj Kishan Kaul appeared for Adani Ports SEZ Ltd. while SG Tushar Mehta appeared for the Board of Trustees for JNPA and Senior Advocates Shyam Divan and Huzefa Ahmadi appeared for the M/s. J.M. Baxi Ports & Logistics Ltd.
APSEZ was disqualified from bidding in the Jawaharlal Nehru Port Authority (JNPA) tender for the upgradation of the Container Terminal in Navi Mumbai based on a clause in JNPA tender that stated that the disqualification/termination of a contract with a public entity in the past three years would automatically disqualify a bidding party from future tenders.
The Court held, "Writ Petition No. 569 of 2022 is dismissed as withdrawn with the liberty in favour of the petitioner to challenge the validity of Clause 2.2.8 of the RFQ documents or any other identical clauses before the High Court…"
Earlier, Adani Ports had moved the Bombay High Court challenging the disqualification of its bid in connection with a tender issued by state-run Jawaharlal Nehru Port Authority (JNPA) for upgradation of the latter's container terminal in Navi Mumbai.
The Bombay High Court had imposed a cost of Rs. 5 lakhs while dismissing the plea against disqualification for the JNPA tender.
Adani was disqualified by the JNPA from a tender process to privatize the port authority's container handling facility on May 3. As per JNPA, the terms and conditions in its tender document said any firm involved in contract termination at other ports will be prohibited from participating in the terminal privatization bidding process. In December 2020, a coal handling terminal at the Visakhapatnam Port Authority that was operated by a unit of Adani was terminated. Adani group, however, claimed in its plea that its disqualification was illegal.
Cause Title - Adani Ports and Special Economic Zone Limited v. The Board of Trustees of Jawaharlal Nehru Port Authority & Ors.