Eligibility criteria in tender processes cannot be changed arbitrarily without valid justification, maintaining fairness and transparency in public procurement.

JUDGMENT :

1. Heard Mr. K.P. Pathak, learned counsel for the petitioner as well as Mr. S.Bora, learned Standing Counsel, Bodoland Territorial Council (BTC).

2. The petitioner is challenging Clause-5 of the Corrigendum dated 14.03.2025, by which a change has been made to Clause-5 of the NIT dated 13.02.2025.

3. The petitioner’s case is that the respondents had issued NIT dated 13.02.2025, for procurement of Desks and Benches for distribution to various schools under the Bodoland Territorial Council (BTC) for an amount not exceeding Rs.6.00 crores. The last date of submission of bids in terms of the NIT dated 13.02.2025 was 10.03.2025.

4. Clause-5 of the Eligibility Criteria of the NIT required the bidder to have an experience of executing at least one single work order of similar nature/Government supply order of 34% of the tender value and the Annual Financial Turnover minimum 67% of the tender value (in all cases of Civil Engineering Norm/Government supply) in one year during the last five year, updated to present price level, which meant that the bidder was to have had the past experience of supplying similar articles/materials worth Rs.2,03,99,660/-, i.e. approximately Rs.2.04 crores.

5. The respondents thereafter issued a Corrigendum dated 10.03.2025, i.e. on the last date of submission of bids/tenders in terms of the NIT dated 13.02.2025, wherein the last date of submission of bids was extended upto 20.03.2025. Thereafter the respondents issued another Corrigendum dated 14.03.2025, wherein Clause-5 of the Eligibility Criteria of the NIT was altered. As per the Clause-5 of the Corrigendum dated 14.03.2025, which replaced Clause 5 of the NIT, the bidder must have the experience of executing and completing at least one supply order of Wooden Desks and Benches with Iron and Steel frame to the Government of BTC in the Education Department, for an amount of not less than Rs.2.40 crores.

6. The petitioner’s counsel submits that the change in the past experience/financial capacity required of a bidder, in terms of Clause-5 of the Corrigendum, restricting the experience of supply only to the Government of the BTC is arbitrary and liable to be set aside. He submits that the rules of the game cannot be changed after the game has been played, inasmuch as, the petitioner had the past financial experience of supply of similar materials in terms of Clause-5 of the NIT, wherein a tenderer had to have the experience of supplying 34% of Rs.6.00 crores, i.e. Rs.2,03,99,660/- of similar items, to the Government. The raising of the past minimum supply order required of a bidder, to qualify/participate in terms of the Corrigendum to Rs.2.40 crores, is without any objective criteria. No reasons have been given by the State respondents as to why the past Experience Criteria of having supplied similar materials of Rs.2,03,99,660/- has been raised to Rs.2.40 crores. He submits that the raising of the past experience of having supplied similar materials to the Government amounting to Rs.2.40 crores, being without there being any nexus to the object, has been made only to favour their blue eyed boys. As such, the same should be set aside as it was arbitrary. He also submits that as per the NIT dated 13.02.2025, a bidder had to have the past experience of supplying similar materials to the Government. However vide the Corrigendum, t