IMPORTANT POINT
Government Contract – Tender Call Notice – Judicial review in these matters is equivalent to judicial restraint in these matters. Writ court does not have expertise to correct such decisions by substituting its own decision for decision of Authority.

JUDGMENT :

R.F. NARIMAN, J.

1. Leave granted.

2. These appeals arise out of a Tender Call Notice ["TCN"] dated 30.12.2019 issued by Respondent No.4, viz., the Office of the Superintendent, SCB Medical College and Hospital, Cuttack. By this TCN, sealed tenders in a two-bid system (technical and financial) are invited from eligible registered diet preparation and catering firms/suppliers etc. having a valid labour licence and a food licence with a minimum of three years of relevant experience in the field of preparation and distribution of therapeutic and non-therapeutic diet to government or private health institutions having a minimum of 200 beds for the year 2019-2020. In the "Terms of Reference" attached to the TCN, clauses VI.3.3 and VI.3.9 are important and are set out hereunder:

"VI.3 Eligibility criteria:

xxx xxx xxx

3. The bidder should have a minimum of 3 years' experience in diet preparation and its supply/services in Govt. or Private Health Institutions only having minimum 200 no. of beds.

xxx xxx xxx

9. The bidder should have valid labour licence (registration no. & date) of Labour Department."

Further, under clause VI. 13, the right to reject any bid is set out as follows:

"VI.13 Right to Accept or Reject the Bid:

The Hospital Administration reserves the right to accept or reject any bid and the bidding process and reject all such bids at any time prior to award of contract, without showing any reason thereby."

Equally, under clause VI.16, the administration of the SCB Medical College and Hospital reserves under its sole discretion to disqualify any bid document if any of the documents enumerated in the said clause have not been submitted by the bidder. Clause VI.16(f) reads as follows:

"VI.16 Disqualification:

The Administration of the SCB Medical College Hospital, seeking this bid, reserves under its sole discretion to disqualify any bid document if the following documents have not submitted by the bidder:

xxx xxx xxx

(f) Labour License from competent authority"

Under clause VI.20, sub-clause (6) states:

"VI.20 General Information to Bidder:

xxx xxx xxx

6. The agency would recruit required number of staff for cooking and serving so that diet can be supplied to the indoor patients in time. List of personnel with their Aadhar card copy should be submitted to the office positively."

3. Pursuant to the aforesaid, four bids were received by the Tender Committee - from the Appellant, Respondent no.1, Respondent no.5 and Respondent no.6. Vide the Technical Committee meeting dated 17.02.2020, Respondent no.1 and Respondent no.6 were held to be disqualified inter alia for the reason that they had not submitted a valid labour licence, i.e., a contract labour licence from the competent authority, as per the TCN requirement. The Appellant and Respondent no.5 were shortlisted for opening of financial bids.

4. At this stage, Respondent no.1 filed a writ petition on 19.02.2020 apprehending that it may be disqualified. This writ petition was dismissed as being premature on 20.02.2020.

5. On 24.02.2020, the Tender Committee opened the financial bids of the Appellant and Respondent no.5, and found the Appellant to be the lowest bidder, quoting an average cost of Rs.82/- per patient per day.

6. Meanwhile, Respondent no.1 filed a writ petition dated 13.03.2020, praying that the Tender Committee proceedings be set aside and that Respondent no.1 be awarded the tender.

7. By a work order dated 27.11.2020, the Appellant was awarded the tender at the approved rate. Pursuant thereto, an agreement dated 27.11.2020 was entered into between the Appellant and Respondent no.4 for a period of one year. The High Court, by the impugned judgment dated 23.03.2021, referred to the facts and thereafter held:

"9. As mentioned above, Clause 9 of the eligibility criteria is candid and clear requiring valid license of Labour Department. The said stipulation never mandates