The central legal point established in the judgment is that compliance with eligibility criteria in tendering processes is essential, and the provisions for condoning minor irregularities may not apply to significant non-compliances.

JUDGMENT

1. The petitioner impugns the emails dated 3/4 August 2021 issued by the Tender Inviting Authority apprising it of its bid having been rejected during the course of technical evaluation. The Employees? State Insurance Corporation1 is stated to maintain a rate contract list of drugs and medicines for use in hospitals and dispensaries administered by it. It is stated to have floated six e-tenders inviting bids from parties for supply of various drugs mentioned in the tender notice. Responding to the tender notice which was published on 01 January 2021, the petitioner also submitted a bid for consideration. Out of the six e-tenders that were floated by the Corporation, the petitioner is stated to have participated in three and submitted a bid with respect to a total number of 15 items.

2. On 06 July 2021, it received an email from the office of the third respondent calling upon it to explain certain discrepancies which had been noticed. Responding to the aforesaid notice, the petitioner by its communication of 12 July 2021, provided additional information. The issue itself arises in the backdrop of the respondents noticing that the petitioner had failed to comply with the provisions made in Clause 5(XVI) of the tender document. The aforesaid clause dealing with eligibility criteria required bidders to submit information in terms of the form prescribed and set out in Annexure 'E'. The aforesaid clause forming part of the tender document reads as under: -

'XVI. Information as per the proforma enclosed (Annexure-E) should be submitted with the tender Furnishing of wrong information and false documents will make the bidder ineligible and. liable to be debarred / blacklisted from participation in ESI Rate Contracts for five years.'

3. It would be apposite to note that Annexure 'E' required intending bidders to furnish information relating to aspects such as licenses held by the concerned bidder under the Drugs and Cosmetics Act, 1940, procurement agencies with which the bidder may be registered as well as the following technical details:-

'TECHNICAL

a) Equipments for material handling, manufacturing of drugs and quality control of drugs.

b) Specialized testing facilities such as Microbiological testing and biological testing; c) Details of Technical Staff:

i.) Manufacturing Staff:

ii.) Quality Control Staff:

d) Has the firm carried out stability study for drugs quoted?

e) Is the firm basic manufacturer of the drug quoted, if yes, details:

f) Drugs declared sub-standard/recalled during the last three years. Give details with reasons and the remedial action taken.'

4. The petitioner admittedly had not filled out the details as required under the technical column and it was this discrepancy and shortfall which came to be noticed by the respondents. It is the aforesaid fact which weighed with the respondents in proceeding to reject the tenders submitted by the respondent during technical evaluation of bids.

5. Aggrieved by the aforesaid action, the petitioner instituted the instant writ petition alleging that the respondent had acted arbitrarily bearing in mind the fact that upon the aforesaid shortcoming having been pointed out, the relevant details had been duly supplied by the petitioner. It was further contended that the Manual for Procurement of Goods 2017, and which clearly applied to the tendering process clearly envisaged that bidders would be afforded an opportunity to rectify minor infirmities and / or irregularities. Reliance was placed on Clause 7.3.4 of the aforesaid Manual, which reads as follows: -

'7.3.4 Minor Infirmity/Irregularity/Non-conformity

During the preliminary examination, some minor infirmity and/or irregularity and/or non conformity may also be found in some tenders. Such minor issues could be a missing pages/ attachment or illegibility in a submitted document; non-submission of requisite number of copies of a document. There have been also cases where the bidder submitted the amendment Bank Guarantee, but omitted to