ORDER :

1. Heard Mr. Prateek Sharma, learned counsel for the petitioner. Also heard Mr. Prafull N. Bharat, learned senior counsel assisted by Mr. B.D. Guru, learned counsel, appearing for respondents No. 1 and 2 and Ms. Nidhi Agrawal, learned counsel appearing for respondent No. 3.

2. Respondent No. 2, DGM/AGM (Contract and Materials), National Thermal Power Corporation (‘NTPC’) Limited, Unified Service Centre, Central Procurement Group-1, Western Region-II Head Quarter had issued online bids for empanelment/rate contract of pathology services for NTPC Seepat Hospital (domestic competitive bidding) being Notice Inviting Tender (‘NIT’) dated 07.06.2022. By the said NIT, online bids were invited in Single Stage Two Envelope Bidding basis (Envelope-I: Techno-Commercial bid and Envelope-II: Price bid) from eligible bidders. The estimated cost was indicated as Rs. 128.17 Lacs excluding GST. The contract was for 24 months.

3. The petitioner, which is a partnership firm, had participated in the said NIT. In the writ petition as was originally filed, the petitioner called into question the order dated 04.08.2022, which was sent through e-mail, by which it was communicated that the tender of the petitioner was rejected. By the said e-mail, the petitioner was advised to contact the Technical Evaluation Team in case of requirement of any clarification or feedback. Prayer was also made to restrain the respondents from going ahead with opening of the financial bid of respondent No. 3, namely, Thyrocare Technologies Limited and also to direct the respondents to open the bid of the petitioner treating it to be eligible and qualified.

4. Subsequently, by an order dated 08.08.2022 issued by respondent No. 2, contract work was awarded to respondent No. 3. Consequently, the writ petition was amended and the order dated 08.08.2022 was also put to challenge.

5. It is pleaded that respondent No. 3 is also not eligible as it does not have any registered laboratory in the State of Chhattisgarh under the provisions of Chhattisgarh State Upcharyagriha Grih Tatha Rogopachar Sambandhi Sthapanaya Anugyapan Adhiniyam, 2010, for short, Act of 2010, with National Accreditation Board for Testing and Calibration Laboratories (‘NABL’) or National Accreditation Board for Hospitals and Healthcare Providers (‘NABH’) certificate.

6. It is pleaded that there were three bidders including the petitioner and respondent No. 3 and when the bids were opened on 07.07.2022, the petitioner could not see the documents of respondent No. 3 and the petitioner was also not informed regarding opening of techno-commercial bid, and therefore, the tender process was not a fair and transparent process. It is stated that as respondent No. 3 had no NABL/NABH certified laboratory in the State of Chhattisgarh, therefore, for testing, samples would have to be sent to Navi Mumbai, which virtually amounts to playing with the health of the workers. It is also stated that though the contract was for pathology services, 90% work relates to Occupational Health Centre (OHC), which is required to be set up under the Factories Act, 1948.

7. Before the stand taken by the respondents in their replies are taken note of, since the primary issue that is required to be considered is as to whether the techno-commercial bid of the petitioner was arbitrarily rejected despite the petitioner fulfilling the criteria and as to whether the work order was issued to respondent No. 3 without it meeting the technical criteria, it will be apt, at this juncture, to take note of the qualifying requirement for the bidders, which is laid down in Clause 5 of the NIT.

8. Clause 5 of the NIT is under the heading of “Qualifying Requirements for Bidders” and since the issue relates to technical criteria, Clause 1.1 dealing with technical criteria is reproduced herein-below:

“1.1 The bidder should have National Accreditation Board for Testing and Calibration Laboratories (‘NABL’) or National Accreditation Board for Hospitals and Health