The subject matter requiring adjudication in this proceeding pertains to eligibility to offer bids against a Notice Inviting Tender, which had arisen on the following circumstances.

2. The respondent/Oil & Natural Gas Corporation Ltd (ONGCL in short) issued notice inviting sealed tenders for supply of, amongst others, Aqueous Film Forming Foam (hereinafter referred to as AFFF) 3% (IS: 4989 Part II) for 15,000 litres. It was indicated in the said Notice Inviting Tender that non-transferable » bidding document would be available in the office between 1400 hours to 1600 hours on any working day from 1.7.98 upto one day prior to the date of closing of bid on payment of the requisite tender fee. The closing date and time for receipt of tenders was fixed at 1400 hours on 31.7.98 and the opening date and time of the tenders was fixed at 1500 hours on 3.8.98. In terms of the Notice Inviting Tender (NIT for short), the petitioner submitted an application for procurement of 15,000 AFFF 3% V/V Concentrate as per IS 4989 Part IIISI Marked which was issued to the petitioner on payment of the tender fee. The bidding document inter alia contained the technical criteria and under clause 3.1 of the technical criteria, it was stated as follows:

“3.1 The bid should be submitted by the original manufacturer only.”

Naturally, the petitioner not being an original manufacturer, was not in a position to offer bid and, therefore, it moved this Court questioning the legitimacy of the above criteria.

3. The petitioner contended that the above condition put by the respondents/ corporation is not only arbitrary and irrational, but it has also adversely affected the livelihood of the petitioner. The petitioner contended that it is a small scale industry registered with the Govt of Assam and is the sole distributor of Safex which is a reputed manufacturer of all types ISI Marked End TAG approved fire and safety equipment. That the petitioner along with other like persons, on a number of occasions, were selected for supply of various fire fighting equipments and had successfully executed the contracts. That the impugned condition under clause 3.1 of the technical criteria prescribed in the bidding document seriously jeopardized the livelihood of the petitioner in a most illegal fashion which requires intervention from this Court.

4. Mr. GN Sahewalla, learned counsel for the petitioner, submitted that the respondent/corporation no doubt had the power and authority to determine the criteria for submitting tender, but such authority however must confine to the canons of legitimacy. Whatever is not reasonable is arbitrary and unfair, is also violative of the Article 14 of the Constitution of India, submitted Mr. Sahewalla. Mr. AK Goswami, learned counsel, supplementing the argument of Mr. Sahewalla, the learned counsel for the petitioner, referred to various tender notices of earlier occasions and submitted that the authority on earlier occasions allowed both, the original manufacturer as well as the authorised dealers/distributors/sole selling agents backed by original manufacturers, to supply the necessary articles provided such backing up was valid and current, and therefore, there cannot be any valid and lawful justification to exclude the dealers/distributors agents etc.

5. The respondents submitted their affidavit and disputed the claim of the petitioner. The respondents stated that the rationale behind the shift of its policy confirming the bidding to the original manufacturers is for attaining the highest standards of public safety and to counter major catastrophes which took place earlier. According to the respondents, the real object behind introducing clause 3.1 as a technical criteria in the bidding document was/is public interest and safety and security of all concerned. The respondents referred to a number of fire accidents which resulted in loss of lives and properties. That the fire equipments/materials for fighting fires unless are very effective, gen

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