Tender disqualification must be reasonable and justified; arbitrary rejections violate principles of fair competition.

JUDGMENT :

ANISH DAYAL, J.

1. These petitions have been filed seeking quashing of the operation and issuance of work orders to respondent no.3 (SIS Limited) in respect of the tenders bearing numbers GEM/2024/B/5209730 and GEM/2024/B/5209739 (‘the tenders’).

2. Respondent no.1 (Ministry of Culture, Union of India) issued the tenders on 26^th July 2024, requisitioning service of unarmed security guards for protected monuments located in the Southern and Central regions of India; more specifically, requirement of 925 and 381 unarmed security guards, respectively.

3. The said tender process was initiated on the Government e- Marketplace (‘GeM’) platform. Archaeological Survey of India (‘ASI’)/respondent no.2 was the beneficiary of the subject tender.

4. Petitioner, a company registered under the Companies Act, 2013, claims to be engaged in the business of providing comprehensive end-to- end outsourced solutions and services for sectors where security and safety risks are considered a strategic threat. Petitioner claims to have a pan-India presence and provides services to institutions, banks, and various government undertakings.

5. Petitioner submitted its bid on 13^th August 2024, annexing a self- declaration of its experience from the year 2022, in compliance of requirements of the tender.

6. There were 76 bidders on the portal. On 23^rd December 2024, technical bids were opened, and 75 of the 76 bidders, including petitioner, were disqualified. The only bidder remaining was respondent no. 3, who was awarded the contract.

7. On the GeM portal, the reason cited for petitioner’s disqualification was “does not full fill the parameter namely required experience hence disqualified.”

8. Petitioner submitted a representation to respondent no. 2 on 24^th December 2024, urging them to reconsider the disqualification in light of the assertion that petitioner squarely qualified.

9. By a response dated 08^th January 2025 on the GeM portal, it was stated, “on evaluation of all documents, not found eligible.”

10. Petitioner, therefore, filed these Writ Petitions; notice was issued by this Court on 22^nd January 2025; it was directed that “in the meantime, we provide that finalization of the tender in question shall be subject to further orders which will be passed by the Court in this petition.”

11. Thereafter, pleadings were completed, and detailed arguments were heard.

Submissions on behalf of petitioner

12. Mr. Ashish Mohan, Senior Counsel appearing for petitioner, drew attention of the Court to the qualification requirement in the bid document.

13. He highlighted that the services required were of security services for protected archaeological monuments, however it essentially was for the provision of unarmed security guards.

14. The specific clauses in the bid document, which stipulated the experience requirement, are extracted as under: “2. Years of Past Experience required: The bidder must have experience for number of years as indicated above in bid document (ending month of March prior to the bid opening) of providing similar type of services to any Central/State Govt Organization/PSU Copies of relevant contracts/ orders to be uploaded along with bid in support of having provided services during each of the Financial Year:

5. Past Experience of similar Services: The bidder must have successfully executed/completed similar services over the last three years i.e,. the current financial year and the last three financial years (ending month of March prior to the bid opening):-

1. Three similar completed services costing not less than the amount equal to 40% (forty percent) of the estimated cost;

2. Two similar completed services costing not less than the amount equal to 50% (fifty percent) of the estimated cost;

3. One similar completed service costing not less than the amount equal to 80% (eighty percent) of the estimated cost.”

15. Senior Counsel for petitioner submitted that petitioner’s