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Purpose of issuing tender is to invite maximum bids from bidders : Delhi High Court

All bids meeting the technical qualification must be invited so that the employer/ tender floating authority gets the most favorable product or services at the most competitive price. This was held in the judgment passed by a two- judge bench comprising Hon’ble Mr. Justice Vipin Sanghi And Hon’ble Mr. Justice Jasmeet Singh, in the matter Resoursys Telecom And Anr V. Navodaya Vidyalaya Samiti [W.P.(C) 6676/ 2021 & CM APPLs. 21018/2021, 23797 – 798/2021], dealt with an issue where the petitioner filed a petition seeking the quashing of invitation to tender dated 12.02.2021 issued by Respondent No.1 i.e. Navodaya Vidyalaya Samiti on the portal of Government E-Market Place (GEM), and in particular, letter dated 29.06.2021 issued to the Petitioner.

The Petitioner is a partnership firm dealing in trading and supplying of information and technological goods. Petitioner No.2 is one of the partners of Petitioner No.1.  The Respondent No.1 Navodaya Vidyalaya Samiti (NVS) is an autonomous organisation under the Ministry of Education.

Respondent No.1 issued invitation to tender for supply of 68,940 tablets on the online trading portal of the Government of India, i.e. GEM. The essential Qualification Criteria with regard to past experience contained in the Notice Inviting Tender (NIT) – with which we are concerned, is that the bidder should have the stipulated past experience of dealing in “same or similar category products”. The bid document was subsequently revised, and there were certain corrigendum and amendments that were issued by Respondent No.1 from time to time, changing certain technical and general conditions of the tender.

The Petitioner being desirous of participating in the tender process offered its product i.e. tablet, which is being manufactured by an Indian company, namely, M/s Lava International Ltd., on 27.04.2021. The Petitioner was duly authorised by the manufacturer to participate in the tender process.

The Respondent gave the reason that the petitioner does not qualify the past performance criteria, as the work orders for smart phones, laptops, aadhar kits, power banks, etc. are not considered as same or similar category products of tablets.

Counsel for the petitioner is that smart phones are goods which belong to the same or similar category, as “Tablets”. The act of Respondent No.1 in excluding smart phones from “same or similar category of products” is unreasonable, and against the principles of fair play and logic.

After hearing both the parties The Hon’ble Delhi High Court allowed the petition and quashed the Technical disqualification of the petitioner in respect of the tender in question. The court held that the tender floating authority is best person to interpret the terms of the tender, as they know what best is the requirement and how to achieve the same. However, the authorities cannot act arbitrarily, whimsically and contrary to the terms and conditions of the tender. As noticed hereinabove, the terms and conditions of the tender are clear. However, even if the terms of the tender are unclear and ambiguous, can it be left to the option of the tender floating authority to interpret it in a manner which is contrary to their plain meaning? The answer is “No”.

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Judgement reviewed by – Vaishnavi Raman

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