Limited scope of judicial review in tender matters, deferring to the decision-making process of the tendering authority unless colored in mala fide or outrightly perverse.

JUDGMENT

1. By means of the instant Writ Petitions, the Petitioners herein have impugned the tenders issued by the Directorate of Education, GNCTD, i.e., the Respondent No. 2, vide bid numbers GEM/2022/B/2194834, GEM/2022/B/2195060, GEM/2022/B/2195292, GEM/2022/B/2195371, GEM/2022/B/2195447, GEM/B/2022/B/2195488, GEM/2022/B/2195541, GEM/2022/B/2195586, GEM/2022/B/2195734, GEM/2022/B/2195769 dated 20.05.2022(hereafter, "Impugned Tenders") for provision of security manpower services, on the basis that they contain certain arbitrary stipulations. Accordingly, it has been sought that this Court be pleased to call for records of the Impugned Tenders and consequently set them aside.

2. W.P.(C) No. 8903 of 2022 has been filed by Top Edge Security & Services Pvt. Ltd. (hereafter, "Top Edge") and W.P.(C) No. 9460 of 2022 has been filed by Good Year Security Service (R) (hereafter, "Good Year"). Since the substance of the Petitioners' challenge to the Impugned Tenders is identical, there being only slight differences in the factual matrices in the Petitions, we deem it appropriate to take W.P.(C) No. 8903 of 2022 as the lead matter for the sake of convenience.

3. The brief facts leading up to the filing of W.P(C) No. 8903/2022 is set out hereinbelow:

a. In response to complaints regarding discriminatory pre-qualification criteria incorporated in the tender documents by various departments, the Central Vigilance Commission (hereafter, "CVC") issued an Office Memorandum on 17.12.2002 (hereafter, "OM dated 17.12.2002"). In terms of the OM dated 17.12.2002, the CVC inter alia provided:

"5. The following points must be kept in view while fixing the eligibility criteria:

A) For Civil/Electrical Works

i) Average Annual financial turnover during the last 3 years, ending 31st March of the previous financial year, should be at least30% of the estimated cost."

b. It has been stated before this Court that on previous instances, i.e., in January 2015, October 2019 and July 2020, Respondent No. 2 has issued tenders wherein the prequalification criterion required that the average annual financial turnover during a period of 3 years preceding the bid should be at least 30% of the estimated cost in line with the OM dated 17.12.2002. The said tenders also allowed for bidding by a consortium/joint venture.

c. On 04.01.2022, Respondent No. 2 issued a total of 10 tenders for the provision of security manpower services on the GeM Portal (hereafter, "Tenders dated 04.01.2022"). In terms of the Tenders dated 04.01.2022, the Annual Turnover criteria for the time period of three years preceding the bid, was enhanced from being equal to or more than 30% of the estimated costs of the bid to 50% of the estimated cost of the bid.

d. On 10.01.2022, Top Edge filed W.P.(C) No. 805 of 2022, challenging the Tenders dated 04.01.2022 inter alia based on the enhanced requirement for average annual turnover provided in the Tenders dated 04.01.2022.

e. On 19.01.2022, this Court directed the Respondents to produce the record of Tenders dated 04.01.2022 in the terms reproduced hereunder:

"We direct the respondents to positively produce the original record before us for our perusal on the next date. The Director of Education should also remain present to answer our queries when we take up the matter. We may also note that during the course of arguments on 17.01.2022, the reasoning advanced by Mr. Singh, on instructions, for raising the Average Annual Turn Over criteria from 30% to 50% of the estimated value of the work, was that, the lower bar of 30% was leading to bidding and selection of incompetent contractors, who are not able to service the contracts. However, there is not a whisper to this effect in the file notings placed before us.

We also find that the short note placed at pages 1 to 5 seeks to provide a justification for structuring the tenders in question, in the manner they have been structured, and the justifications provided therein are not to be found in the file noting