Limited scope of interference in tender processes and the authority's discretion to modify tender terms for efficiency and public interest.

JUDGMENT

1. The present Writ Petitions have been filed by the Petitioners, impugning various notifications in the nature of Office Memoranda, Corrigenda and Amendments (collectively, "impugned notifications") that have been issued by Respondent No.1, the Union of India through the Ministry of New & Renewable Energy and Respondent No. 2, Solar Energy Corporation of India Limited (hereafter, "SECI") from time to time, in respect of a tender dated 31.12.2022 floated inter alia for the purpose of Design, Manufacture, Supply, Transport, Installation, Testing and Commissioning of Off-Grid Solar Photovoltaic Water Pumping Systems (SPWPS) of 1-10 HP capacities (hereafter, "Tender dated 31.12.2022").

2. The Petitioners herein are prospective bidders aggrieved by the impugned notifications. SECI is the designated nodal agency for floating and executing procurement contracts under the aegis and administrative control of Respondent No. 1, i.e., Union of India through the Ministry of New and Renewable Energy.

3. The thrust of the Petitioners' challenge before us is that by virtue of the Impugned Notifications dated 02.02.2023, 17.02.2023, 16.03.2023 and 21.03.2023, terms and conditions of the Tender dated 31.12.2022 stand modified in a manner so as to oust micro, small and medium enterprises (hereafter, "MSMEs") from the bidding process without taking into account their representations and grievances, thereby rendering the impugned corrigenda liable to set aside as being arbitrary and coloured in mala fide.

4. A brief description of the Tender dated 31.12.2022 and the impugned corrigenda issued thereafter, leading up the filing of the present petitions, is set out hereinbelow:

a. On 31.12.2022, SECI issued a Request for Selection (RfS) for Vendors for Design, Manufacture, Supply, Transport, Installation, Testing and Commissioning of Off-Grid Solar Photovoltaic Water Pumping Systems (SPWPS) of 1-10 HP capacities in selected States on Pan India basis, including complete system warranty and its repair and maintenance for 5 years under component-B of PM-KUSUM Scheme of the MNRE, i.e., the Tender dated 31.12.2022.

b. On 02.02.2023, Respondent No. 1 issued an Office Memorandum (hereafter, "OM dated 02.02.2023") inter alia issuing new Technical Specifications for Solar Photo Voltaic Array in respect of the Tender dated 31.12.2022, wherein clause 3.3.4 read as follows:

"3.3.4 The minimum module efficiency should be minimum 19 percent and fill factor shall be more than 75 percent."

c. On 17.02.2023, SECI issued an amendment to the Tender dated 31.12.2022 (hereafter, "Amendment dated 17.02.2023"), whereby it inter alia modified Clause 3.4 (Operation and Maintenance, Training, Awareness and Sensitization) under clause (c), to extend the period of blacklisting a vendor from 3 years to 5 years in the event the installed system is not as per the standards. It further amended clause (d) to state that if any selected vendor, after getting empanelled doesn't proceed with the installation of pumps, apart from encashment of EMD, the said vendor shall also be blacklisted for 5 years period from the date of issuance of such notice of blacklisting.

d. On 18.02.2023, representations were addressed to SECI wherein it was inter alia stated that that the increase in module efficiency from 16% to 19% and fill factor to 75% was without any prior intimation or consultation.

e. On 27.02.2023, SECI issued Corrigendum (hereafter, "Corrigendum dated 27.03.2023"), increasing the time for submission of bids in respect of the Tender dated 31.12.2022 to 10.03.2023.

f. On 09.03.2023, SECI issued another Corrigendum (hereafter, "Corrigendum dated 09.03.2023") increasing the time for submission of bids to 23.03.2023.

g. On 16.03.2023, SECI issued another amendment (hereafter, "Amendment dated 16.03.2023") inter alia deleting Clause No. 11 which exempted bidders who qualified as MSME from submission of Bid Processing Fee.

h. On 21.03.2023, SECI issued `Clarification-03' wherein Clause