The main legal principle established in the judgment is the requirement for strict adherence to the eligibility criteria outlined in a tender document, and the clarification that 'similar kind' does not mean 'identical' when interpreting such criteria.

Nishita Mhatre, J.

1. The dispute in the present appeal is whether words can be added to the tender document at a later stage, after the bids are received, while interpreting the document.

2. The facts are within a narrow compass. The Additional District Magistrate (G), North 24 Parganas floated an e-tender on 18th April, 2017 inviting bids from “Government/Undertaking/Corporations/Co-operative Societies/SHG/Clusters/Federations/Food Production Units/NGOs for preparing and supplying ready to eat (RTE) food in powdered form and consisting of ingredients mentioned in Clause 1 of the tender document. The supply of such RTE food was for the consumption of ICDS beneficiaries, that is, children of the age of six months to six years as morning snacks in Anganwadi Centres for a period of one year. The ingredients of the RTE food packets were specified as Bengal Grams (whole roasted) and oats (whole roasted) in a stipulated proportion, besides sugar to be supplied in “specific packets”. Under Clause 4 of this e-tender notice a tenderer having at least one year’s experience in supply of similar kind of RTE food with an annual turnover of more than one crore was eligible to participate in the process. For self-help groups (SHG) clusters or federations having the infrastructure of the capability of production of the desired food, the pre-requisite of experience could be relaxed subject to the verification and satisfaction of the district authority. Under Clause 6 of the tender document, amongst the various documents which the tenderer was expected to furnish, were his credentials which were expected to include work orders in the last one year for the same type of supply and payment certificates. Clause 12 stipulated that a sealed packet, containing 100gms of the RTE food mix and sugar, along with food testing report from a Government approved laboratory was to be submitted to the District Authority by the tenderers.

3. The bids were expected to be submitted by 12th May, 2017. The technical bid was to be opened on 15th May, 2017 and the financial bid on 23rd May, 2017.

4. The appellant No. 1 bid for the tender as it fulfilled all the requisite criteria in the e-tender notice. The technical bid of appellant No.1 was disallowed. It appears that the appellant bid was rejected because the Appellant No. 1 did not have the experience of supplying RTE food packets of the “same type” or “similar kind” to the Government. A writ petition was filed in this Court being W.P. 14863(w) of 2017 challenging this rejection. The tender process was stayed by the Learned Single Judge till 12th June, 2017 by an interim order. After affidavits were filed by the respective parties the writ petition was heard and by a judgment dated 19th June, 2017, the writ petition was dismissed.

5. Aggrieved by the order of the learned Single Judge dismissing the writ petition, the appellants have preferred the present appeal.

6. Mr. Shaktinath Mukherjee, the learned Senior Counsel appearing for the appellants submitted that a tender document must be strictly construed. He submitted that when there is no specific criterion in the e-tender notice that the tenderer must have experience of supplying RTE packets to Government or Government organisations, the State cannot read these words into the tender document. He argued that when the document is not capable of two interpretations, the State cannot alter the rules of the game after the tender document had been issued only in order to reject the technical bid of the appellants. He further submitted that even in case of a tender issued by the State acting in its executive capacity, it is incumbent on the State to comply with the mandate of Article 14 of the Constitution of India. He has drawn our attention to the judgment in the case of M/s. Radhakrishna Agarwal and others Vs. State of Bihar and others reported in 1977 (3) SCC 457 and Monarch Infrastructure Private Limited Vs. Commissioner, Ulhasnagar Municipal Corporation and