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IN THE HIGH COURT OF DELHI
Manoj Kumar Ohri, Poonam A. Bamba, JJ.
S.H. Khan and Co. - Appellant
Versus
Government of NCT of Delhi - Respondent
W.P.(C) 9454 of 2022 and W.P.(C) 9457 of 2022
Decided On : 10-06-2022
| Table of Content |
|---|
| 1. application to quash nits based on eligibility. (Para 1 , 2) |
| 2. claim of arbitrary eligibility criteria. (Para 3 , 4 , 5) |
| 3. judicial review principles in tender matters. (Para 8 , 9 , 10) |
| 4. criteria for interference in tender conditions. (Para 11 , 13) |
| 5. assessment of nit requirements and public interest. (Para 19 , 21) |
| 6. final dismissal of petitions. (Para 24 , 27) |
JUDGMENT
Manoj Kumar hri, J.
CM.APPL.No.28237/2022 (Exemption) in W.P.(C) 9454/2022
CM.APPL.No.28242/2022 (Exemption)in W.P.(C) 9457/2022
Allowed, subject to all just exceptions.
The applications are disposed of.
W.P.(C) 9454/2022&CM.APPL.No.28236/2022 (Stay)
W.P.(C) 9457/2022&CM.APPL.No.28241/2022 (Stay)
1. By way of the present petitions filed under Article 226 of the Constitution of India, the petitioners have sought quashing/stay of the Notice Inviting Tenders (hereinafter, referred to as the 'NITs') dated 26.05.2022 and 27.05.2022 issued by respondent No.2 vide NITs No.02/EE, C-3/DUSIB/2022-23 & 03/EE, C-3/DUSIB/2022-23. The petitioners in W.P.(C) No. 9454/2022 have also prayed for extension of Work Order Nos.WF/4761/1/2022/D-497, AL-64/EEC4/DUSIB/2021022/D-640, AL-64/EEC-4/DUSIB/2021022/D-648, AL-64/EEC4/DUSIB/2021022/D-650 & AL-64/EEC-4/DUSIB/2021022/D-649 to them for operation, management and maintenance of Jan Suvidha Complexes (hereinafter, referred to as the 'JSCs') for two years.
2. The facts, as emanate from the pleadings, are that the petitioners-M/s S.H. Khan & Co.& Ors. in W.P.(C) 9454/2022 are Societies registered under the Societies Registration Act, 1860 and the petitioner-ALERT DICOR in W.P.(C) 9457/2022 is a Firm engaged in providing security and sanitisation services including in the NCT of Delhi. The petitioners claim to have earlier been awarded various tenders/work orders for Operation, Management and Maintenance of JSCs. The eligibility criteria mentioned in the aforesaid NITs dated 26.05.2022 and 27.05.2022 are on the same lines. For the sake of brevity, relevant extract only from NIT dated 26.05.2022 is reproduced hereunder:
"DELHI URBAN SHELTER IMPROVEMENT BOARD
GOVT. OF NCT OF DELHI OFFICE OF EXECUTIVE ENGINEER, C-3
2nd Floor, Circle Office Building opposite Shivaji College, Raja Garden,
New Delhi-110027.
Ph-011-
NOTICE INVITING TENDER
NIT No:02/EE,C-3/DUSIB/2022-23
Dated 26.05.2022
The Executive Engineer, C-3, DUSIB for and on behalf of DUSIB invites Item Ratee-tender in two envelopes/two bid system (both bids to be uploaded simultaneously),from the registered & eligible NGOs, proprietorship/partnership firms, companies registered under Companies Act, who essentially fulfill requisite "Eligibility Criteria", for the under mentioned work. The applicants need to be essentially registered on Delhi Govt. e-procurement system (https://govtprocurement.delhi.gov.in) also to participate in the e-tender for the said work. The enlistment/registration of the intending bidders/tenderers must be valid on the last date of closing of the e-tender/bid one-procurement system.
However, Blacklisted and/or debarred bidders in any deptt./institution, shall not be eligible to participate in e-tender for this work.
The Consortium/Joint Venture of agencies is also not allowed to participate in the tender for this work.
Eligibility Criteria:
Besides registration of agencies/bidders in concerned department as well as Delhi Govt. e-procurement system, those bidders who fulfill the following criteria, shall only be eligible for participation in the tender for said work:
(A) Experience: Experience of having successfully completed following works during last 7 years
(i). Three similar completed works each costing not less than the amount equal to 40% of estimated cost put to tender.
or
Two similar completed works, each costing not less than the amount equal to 50% of the estimated cost put to tender.
or
One similar completed work of aggregate cost not less than the amount equal to 80% of the estimated cost put to tender. and
(ii). One complet
Eligibility criteria in public tenders can restrict competition based on objective assessments of capacity, and courts should defer to tendering authorities unless conditions are arbitrary or detrime....
It is well-settled that Courts are not meant to vet tender conditions and rewrite the same based on their own understanding, unless the conditions are manifestly arbitrary or smack of mala fide.
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.
Judicial review of tender criteria is limited to instances of proven arbitrariness or discrimination; valid justifications for increased financial thresholds can be upheld to promote efficiency and e....
The court emphasized the mandatory nature of tender conditions and upheld the decisions of the Tender Evaluation Authority and the Appellate Authority, emphasizing the settled legal position that the....
The court ruled that tender eligibility criteria must explicitly state disqualifications, allowing joint venture experience to be considered for bidder qualifications, ensuring clarity and fairness i....
Eligibility criteria in tenders must be reasonable and serve public interest, and courts will not interfere unless proven arbitrary or malicious.
The imposition of arbitrary turnover requirements in tender processes, lacking rational justification, violates Articles 14 and 19(1)(g) of the Constitution, ensuring fair opportunity and competition....
The main legal point established in the judgment is the limitation of judicial review in tender matters, the need for commercial prudence in evaluating tenders, and the importance of fairness and non....
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