The court upheld that tender eligibility criteria should not be excessively onerous and affirmed that judicial interference is limited to cases where terms are arbitrary or discriminatory.

JUDGMENT

Vipin Sanghi, J. The present writ petition under Article 226 of the Constitution of India assails the Eligibility and Turnover Criteria prescribed in 24 Notices Inviting Tenders (NITs) issued by the Respondent/Delhi Urban Shelter Improvement Board (DUSIB), GNCTD between 11.02.2021 to 15.02.2021 for operation, management, and maintenance of Jan Suvidha Complexes.

Brief Facts:

2. The Petitioner society is an NGO registered under the Societies Registration Act, 1860 and claims to have been carrying out the operation, management, and maintenance of Jan Suvidha complexes since 09.07.1998. The Respondent/Delhi Urban Shelter Improvement Board (DUSIB) has been constructing Jan Suvidha complexes for providing basic civic amenities to the citizens of Delhi, especially in the slum areas. Over the years, Jan Suvidha Complexes have been allotted to various NGOs/private companies through issuance of tenders by the Respondent, where the tendered work mainly revolves around the operation, management and maintenance of these complexes.

3. Initially, these Jan Suvidha complexes were available to the public only on a "Pay and Use" basis, which required them to pay a nominal charge for using the service. However, the Respondent introduced a `Free User Charge' Scheme, in pursuance of its decision to make free-of-cost community toilets available to persons living in slums. A Notice Inviting Quotations (NIQ) was issued on 19.12.2017 for the operation, management and maintenance of such toilet complexes. The NIQ concluded by allotting the work to various NGOs/Societies, including the petitioner herein. It is the petitioner's claim that since its work was found to be satisfactory, the Respondent extended its contract till 27.11.2018.

4. Thereafter, fresh tenders were invited, which were awarded to private companies instead of NGOs for two years, and now a fresh Tender process has been initiated, vide the impugned 24 NITs from 11.02.2021 to 15.02.2021. According to the petitioner, the system of awarding the work to private companies did not prove to be successful, and thus led to the issuance of the impugned 24 NITs seeking to award the work pertaining to these Jan Suvidha complexes to the NGOs/societies once again.

5. The petitioner has assailed the Eligibility and Turnover Criteria in all the 24 NITs, which have similar terms and conditions. The relevant extracts from one of the NITs is being reproduced herein below.

"

A. Scope of Work

NOTICE INVITING TENDER

NIT No. 36/Ex. Eng. C-4/DUSIB/2020-21 Dated 13.02.2021 Tender ID no.2021_DUSIB_200116_1

The Executive Engineer,C-4, DUSIB as per orders on account of division C-4 on behalf of DUSIB invites Item Rate e-tender in two envelopes/two bid system (both bids to be uploaded simultaneously), from the registered NGOs/agencies of following categories:

a) Youth and Women's Community based groups

b) Universities and Institutions

c) Nehru YuvaKendras

d) Unorganized worker's Trade Union

e) NGOs and CSOs registered under Societies Registration act 1860 and Trust acts or other similar laws of the state Governments

f) Self Help groups and Committees recognized by the state Governments

g) Resident Welfare Associations

Who essentially fulfills requisite "Eligibility Criteria", for the under mentioned work

xxx

The Consortium of not more than 5 Agencies/NGOs (as per conditions at Annexure-C) is allowed to participate in the tender for this work. The NGOs/Agencies shall be any of the categories enumerated above from a) to g).

The tender has two components namely Part-A & Part-B.

Part-A (Part A-1 + Part A-2) includes wages of stipulated labour (i.e. Part A-1), Applicable bonus if any and contribution of employer towards EPF & ESI (i.e. Part A-2)