Point of Law: Tender - Even if the terms of the tender are unclear and ambiguous, can it be left to the option of the tender floating authority to interpret it in a manner which is contrary to their plain meaning? The answer is “No”.

JUDGMENT :

1. The present writ petition has been filed to seek the quashing of invitation to tender dated 12.02.2021 bearing No. GEM/2021/b/1032762 issued by Respondent No.1 i.e. Navodaya Vidyalaya Samiti on the portal of Government E-Market Place (GEM), and in particular, letter dated 29.06.2021 issued to the Petitioner.

2. Briefly stated the facts as per petitioner giving rise to filing of the present writ petition are as under.

3. The Petitioner is a partnership firm dealing in trading and supplying of information and technological goods. Petitioner No.2 is one of the partners of Petitioner No.1.

4. The Respondent No.1 Navodaya Vidyalaya Samiti (NVS) is an autonomous organisation under the Ministry of Education/ Ministry of Human Resource Development, Department of School, Education and Literacy, Govt. of India. The Chairman of Respondent No.1 is the Minister of Education. The Respondent No.1 functions through the Executive Committee, under the Chairmanship of the Minister of Education and the Executive Head of the Administration is the Commissioner.

5. Respondent No.1 issued invitation to tender for supply of 68,940 tablets on the online trading portal of the Government of India, i.e. GEM2021/b/1032762. The essential Qualification Criteria with regard to past experience contained in the Notice Inviting Tender (NIT) – with which we are concerned, is that the bidder should have the stipulated past experience of dealing in “same or similar category products”. The bid document was subsequently revised, and there were certain corrigendum and amendments that were issued by Respondent No.1 from time to time, changing certain technical and general conditions of the tender. However, the same are not relevant for the purpose of adjudicating the present writ petition.

6. The Petitioner being desirous of participating in the tender process offered its product i.e. tablet, which is being manufactured by an Indian company, namely, M/s Lava International Ltd., on 27.04.2021. The Petitioner was duly authorised by the manufacturer to participate in the tender process.

7. One of the conditions for qualification in the tender, was of having supplied at least 60% of the required tendered quantity/ units in one financial year, in the preceding three years from the date of tender, to any Government or Public Sector Undertakings (PSUs) of “same or similar category products” as that of tablet. It was also required that 35 % of the tender quantity units must have been executed as a single order in one financial year. Since the Petitioner had supplied much more than the desired quantity under “same or similar category product” as that of a tablet, it submitted its bid. The petitioner claimed its past experience on the basis of the supplies made by it of mobile phones and laptops to various Governments and Public Sector Undertakings (PSU's).

8. Respondent No.1 opened the technical bid on 08.05.2021 for evaluating the bids submitted by various bidders. On 25.06.2021, the Petitioner was informed that its bid had been rejected – the reason being “technical specification mismatch”. The communication simply stated that the bidder did not meet all the conditions of the tender. The ground for rejection cited by the Respondent No.1 did not specify any discernible reason for the rejection of the bid of the Petitioner, and was ambiguous. The Petitioner, aggrieved by the vague and unreasoned rejection, filed a detailed representation on 27.06.2021, seeking a clarification of the reason for rejection of its bid.

9. On 29.06.2021, the Respondent gave the reason that the petitioner does not qualify the past performance criteria, as the work orders for smart phones, laptops, aadhar kits, power banks, etc. are not considered as same or similar category products of tablets. The exact extract of the communication of the respondent reads as follows:-

Bid Clause No Content of Clause Reason for Disqualification

Clause 4 (page 2) of Bid Document Past performance: The bidder or its