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 effective execution of public contracts.

JUDGMENT

Subramonium Prasad, J. The instant Writ Petition has been filed by the Delhi Electrical Contractor Welfare Association ("Petitioner/Petitioner Association") under Article 226 of the Constitution of India seeking issuance of a necessary writ, order or direction to quash the Notice Inviting Tender (hereinafter referred to as `the NIT') dated 11.06.2022 bearing NIT No.CMC/BY/22-23/RS/SVS/AS/17 issued by BSES Yamuna Power Limited ("Respondent No.1/BYPL"), and the NIT dated 11.06.2022 bearing NIT No.CMC/BR/22-23/RB/CR/DG/1036 issued by BSES Rajdhani Power Limited ("Respondent No.2/BRPL") for "award of AMC of Electricity Distribution Network consisting of EHV Grids, 11 KV network, Street light and meter installation" (hereinafter collectively referred to as the `Impugned NITs').

2. Prior to the NIT, which is the subject matter of challenge, between 2017 to 2021, the Respondent Nos. 1 and 2, issued NITs in various categories. The commercial requirement, under these NITs, was that the bidders must have a minimum average annual turnover ranging from Rs.2 to 6 Crores in the last three financial years. During this period, members of the Petitioner Association provided services to the Respondents in varying capacities to ensure uninterrupted power supply to consumers by executing various installation schemes and annual maintenance contracts (both routine & specific) of installed assets in Delhi NCR.

3. On 11.06.2022, the Respondents issued the Impugned NITs which imposed a more onerous commercial requirement on bidders by increasing the minimum annual average turnover to Rs.70 Crores or above in the preceding three financial years, in order for them to participate in the Impugned NITs ("said Condition").The said Condition imposed by the Respondents in the Impugned NITs reads as under,

"QUALIFYING REQUIREMENTS (QR)

4. As the imposition of the said Condition has rendered all the members of the Petitioner Association ineligible to participate in the Impugned NITs, the Petitioner was constrained to file the instant Writ Petition.

5. Mr. Jayant Mehta, Ld. Senior Counsel appearing for the Petitioner, submitted that the range for the financial qualifying criteria for the tenders issued from 2017 to 2021 was Rs.2 to 5 Crores. He submitted that now the Respondents, vide the Impugned NITs, have increased the financial qualifying criteria to Rs.70 Crores, in the preceding three financial years. It is the contention of the Petitioner that this manifold increase is irrational, and arbitrary. Mr. Mehta submits that the Respondents have failed to provide any rational justification for this multi-fold increase in the qualification criterion. In light of this, it has been argued that said Condition is arbitrary, irrational, discriminatory and hence, violative of Article 14 of the Constitution of India.

6. The Ld. Senior Counsel further contends that the revised criterion results in artificially excluding a large number of eligible vendors (i.e., the members of the Petitioner Association) who have provided identical services to the Respondents for over 20 years.

7. Per contra, Mr. Sandeep Sethi, Ld. Senior Counsel appearing for the Respondents, submitted that vide th