Tender conditions may specify technical qualifications and experience criteria for bidders, and courts may uphold requirements for bidders to procure equipment from approved OEMs based on such criteria.

Prateek Jalan, J.

Review of the judgment dated 20.11.2018 by which the writ petition was dismissed, is sought by this proceeding. The review petition has been filed pursuant to an order dated 18.02.2019 passed by the Supreme Court in SLP(C) No. 487/2019. The petitioner had challenged the judgment under review by way of the said Special Leave Petition, which was dismissed as withdrawn with the following observations:-

“Learned counsel appearing for the petitioner states that instead of challenging the tender condition, he seeks to go back to the High Court on an alternative plea viz., that he will procure approved original equipment only from the list of manufacturers given. With this observation, we permit the petitioner to withdraw the special leave petition and approach the High Court in a review within two weeks from today.

In the meanwhile, the tender will not be processed further.

The special leave petition stands dismissed as withdrawn.”

2. The writ petition concerns a tender issued by the respondent South Delhi Municipal Corporation (hereinafter, “SDMC”) dated 04.07.2018 for the construction, operation and maintenance of three automated multi-level car parks. The principal challenge urged before us at the time of hearing of the writ petition, as noted in the judgment under review, was with respect to the stipulation in the tender conditions by which certain components of the automated parking system were to be manufactured by seven named original equipment manufacturers (hereinafter, “OEMs”). The contention of the petitioner was that it also possessed technologies, systems and designs of multilevel car parks and had experience in the construction, operation and maintenance thereof. The petitioner sought a direction that it be permitted to participate in the tender de hors the aforesaid restrictions.

3. Upon a consideration of the tender condition in the context of the limited scope of judicial review in such cases, the writ petition was dismissed.

4. The Special Leave Petition filed by the petitioner before the Supreme Court has been placed on record with the review petition. It appears therefrom that the petitioner had reiterated the contentions urged before this Court in respect of the impugned tender conditions. However, the petitioner also placed certain additional documents before the Supreme Court and ultimately withdrew the Special Leave Petition, on its statement that it wished to urge an additional plea before this Court by way of a review petition viz., that it will procure approved original equipment only from the list of manufacturers given.

5. We may observe at the outset that the review petition is unfortunately not limited to the contention recorded in the order of the Supreme Court but seeks additionally to revisit the original challenge. This is evident inter alia from the following extracts of the review petition:-

“9. That in pursuance to the tender invited by the respondent which was challenged before this Hon'ble court only one bidder namely M/s Sotefin SA submitted its bid who is the one of the OEMs for fully automated robo-shuttle type automated car parking system. From this fact also it is clear that condition as challenged by the petitioner before this Hon'ble court is not conducive and is not in the interest of anybody including the bidders, respondent and public at large. It is also relevant to point out that no bidder is available to participate in the tender. It is relevant to point out that it would lead to be a limited tender. In view of the non availability of the bidders the earlier bid was cancelled by the Respondents and Respondents decided to call the fresh bid for car parking in question by adding one more car parking. The result of such unreasonable condition as challenged in the writ petition is apparent on the face of record. The respondent is totally unjustified in creating