Point of Law- Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or malafides or bias or irrationality is made out.

JUDGMENT :

J.B. Pardiwala, J.

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :

“(a) That this Hon’ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the decision of the Respondent whereby the Petitioner stands disqualified for the subject tender;

(b) That this Hon’ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction directing the Respondent to consider the Petitioner’s Technical Bid for the subject tender;

(c) That pending admission, hearing and final disposal of the present petition, this Hon’ble Court may be pleased to direct the Respondents to refrain from opening Price Bid/Completing RA Process/issuing a Purchase Order in respect of the subject tender;

(d) That this Hon’ble Court may be pleased to issue ad interim ex-parte relief in terms of Para (c) hereinabove;

(e) That this Hon’ble Court may be pleased to award cost of the present petition to the Petitioners;

(f) Pass such other order(s) as this Hon’ble Court deems fit in the facts and circumstances”

2. The facts giving rise to this writ-application may be summarised as under :

The writ-applicant is a company engaged in the business of recycled eco-responsible and innovative papers. The respondent herein is a society registered under the Societies Registration Act, 1860 (for short, ‘the Act 1860’). This society is an arm of the Education Department, State of Gujarat. The society was established to help and accelerate students in progress of primary, secondary and higher secondary education as well as to publish various textbooks in accordance with the syllabus-curriculum that may be approved by the Government of Gujarat. The respondent society through Government E-Market (GEM) portal floated a Tender Bid No.GEM/2021/B/1401698 dated 2nd August 2021 for procurement of 2,50,00,000 MapLitho Papers as per IS:1848 (Part-I) specification. The last date for submission of the bid was 17.8.2021 at 3:30 p.m.

3. The bid document stipulated the following documents to be produced by the bidder :

(i) Experience Criteria;

(ii) Past Performance;

(iii) Bidder Turnover;

(iv) Certificate (requested in ATC);

(v) OEM Authorization Certification;

(vi) OEM Annual Turnover.

4. The bid document further clarified that two days’ time would be allowed for technical clarifications during the technical evaluation.

5. It is not in dispute that the writ-applicant submitted its bid on 17.8.2021 at 2:37 p.m., i.e. before the expiry of the time limit prescribed. It is also not in dispute that the writ-applicant uploaded all the documents as required and referred to above.

6. The dispute cropped up as regards the alleged failure to submit the certificate (requested in the additional terms and conditions (ATC). In respect of the certificate as demanded in the ATC, i.e. additional terms and conditions, the writ-applicant produced three work orders in accordance with the Clause-12 of the tender document. The writ-applicant, along with its bid, uploaded three work orders issued by the West Bengal Text Book Corporation Limited, HT Media Limited and Pritam Enterprise respectively.

7. The writ-applicant also produced a certificate issued by a Chartered Accountant certifying that a specific amount of work had been undertaken by the writ-applicant. Although the writ-applicant made all possible efforts to procure the satisfactory performance certificates prior to 17.8.2021, yet those could not be procured for the reasons beyond the control of the writ-applicant.

8. On 19th August 2021 when the writ-applicant looked into its GEM portal, the bid offered by him was shown as ‘disqualified’ against the subject tender. On opening the hyperlink provided beneath the said word, the following in the comment section was noticed to have been stated :

“Not qualified 1. Not meeting project execution criteria as per Sr.No.12 of BID as