IMPORTANT POINT
The authority of the Tender Inviting Authorities to interpret the terms of the tender documents and the requirement for parties to fulfill the requisite criteria for judicial relief.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The petitioner participated in a tender floated by the respondent-authorities for supply of medical gases in cylinders to various hospitals. It is contended by learned counsel for the petitioner that the rejection of the petitioner’s technical bid was perverse. It is argued that Clause 3 of the eligibility criteria of the tender document required that the bidder must be a manufacturer and bulk filler of either medical oxygen or medical nitrous oxide and not manufacturers of all kinds of medical gases forming the subject-matter of the Notice Inviting Tender (NIT), being medical Oxygen, medical Nitrous Oxide and Carbon Dioxide. A bidder, according to the tender document, should only have the capability to supply all three gases but did not require a bidder to manufacture all three.

2. Clause 11 of the NIT stipulated that the bidders have to have at least three years’ experience in the field of production and selling of medical gases and did not mandate such experience in each or all of the three medical gases. The petitioner, it is argued, had the requisite three years’ experience in production and selling of medical Oxygen and as such qualified on the technical requirements.

3. Although the terms of the NIT did not require three years’ experience in production of all medical gases, the petitioner also had requisite three years’ experience in production and selling of medical Nitrous Oxide. The first ground of rejection is thus illegal, since the respondents relied on the petitioner not meeting the requirements of medical Nitrous Oxide whereas it did meet the requirements for Oxygen.

4. Learned counsel also challenges the second ground of rejection regarding Cash Reserve Requirement. It is argued that the same was a non-essential criterion, which was evident from the conduct of the respondent-authorities, since the said condition was not insisted upon in the case of respondent no. 6, one of the successful bidders at the technical stage. Learned counsel places much reliance on the non-fulfilment of MTC (India) Gases Private Limited, the respondent no. 6, regarding cash reserve and argued that the said entity was on similar footing as the petitioner but the petitioner was discriminated against, thereby violating Article 14 of the Constitution of India.

5. The petitioner also challenges the arguments of respondent no. 6 on such count. Although respondent no. 6 contends that the zones for which it was qualified are different from those for which the petitioner’s bid was rejected, the petitioner argues that the standards could not be different for the different zones, since the tender document contemplated uniform eligibility criteria for all the zones.

6. Learned counsel also seeks to distinguish the judgments cited by the respondents.

7. The respondents argue that the petitioner, not being a technically qualified bidder, has no locus standi to prefer the instant challenge. It is argued that all the Clauses including Cash Reserve were essential conditions of the tender.

8. Respondent no. 6 controverts the allegation that it did not meet the cash reserve criterion. By placing reliance on the documents pertaining its declaration, the said respondent argues that a uniform short-fall notice was given to all the bidders who fell short on the technical qualifications, including the respondent no. 6 and the petitioner. The petitioner participated at that stage and as such cannot now resile from the position by challenging the short-fall notice itself. After such notice, the minor errors which were there in the initial submission of bid were rectified by the respondent No. 6.

9. Learned counsel for the respondent No. 7 argues on similar lines and submits that Clause 5 of the tender document requires a subjective satisfaction of the tendering authority. It is argued that it is well-settled that the Tender Inviting Authorities are the final judge of the interpretation of the tender Clauses. Learned counsel for