Judicial review in tender matters is confined to legality and fairness of the decision-making process, not the merits of the decision.

JUDGMENT :

N.NAGARESH, J.

Petitioner, who is a C Class Contractor enlisted under the Chief Engineer, Southern Naval Command, Pune, is before this Court seeking to quash Exts.P9 and P11 and to declare that the petitioner is eligible to submit his bid in response to Ext.P6 re-tender issued pursuant to Ext.P1.

2. The petitioner states that the 1^st respondent-Chief Engineer (Naval Works, Kochi) invited tender for “Completion of incomplete works for setting up single offices accommodation as a part augmentation of infrastructure and facilities at INA, Ezhimala (Phase-II)” as per Ext.P1 notice of tender. As the estimated cost of work is Rs.6,10,00,000/-, only Contractors having A Class and above registration were eligible to bid. As INA, Ezhimala is a remote station, Contractors one/two Class below the eligible Class were also permitted to bid the tender as per Ext.P1. The petitioner submitted Ext.P2 bid. When technical bid was opened, only two participants were found qualified. Price bid could not be opened due to administrative reasons. Subsequently, the tender was cancelled and Ext.P6 re-tender notification was issued.

3. The petitioner again submitted Ext.P7 bid. There were more bids this time. The 1^st respondent, as per Ext.P9, rejected the petitioner's bid on the ground that number of enlisted Contractors of eligible Class exceeds 7. The petitioner states that Ext.P9 rejection is liable to be quashed. The bid of a Contractor having MSME registration is liable to be considered. The petitioner therefore filed Ext.P10 appeal before the 2^nd respondent-Chief Engineer. The 2^nd respondent rejected the appeal as per Ext.P11. The petitioner states that Exts.P9 and P11 are liable to be set aside.

4. The counsel for the petitioner argued that the number of bids came responding to the second call followed by Ext.P1 is fake. Without considering the number of bids, the petitioner's bid is also liable to be considered. Treating Ext.P6 re-tender as continuation of the first call pursuant to Ext.P1, the petitioner's bid ought to have been accepted. The act of respondents in revoking the tender unilaterally is illegal and without bona fide. The counsel for the petitioner relied on the judgment of the Hon'ble Patna High Court in M.K. Enterprises, Patna v. State of Bihar [2023 KHC OnLine 4139] and argued that not providing opportunity to the petitioner before cancellation of bid is violative of principles of natural justice. Relying on the judgment of the Hon'ble Gauhati High Court in G.B. Chaudhuri Holdings Private Limited (M/s.) v. Food Corporation of India and another [2019 KHC 4002], the counsel for the petitioner argued that cancellation process of first tender is vitiated by lack of transparency and fairness.

5. Counsel for the 3^rd respondent entered appearance and resisted the writ petition. The 3^rd respondent submitted that only Contractors enlisted with MES in Class A and above are eligible to bid the work in question. As per Note 1 of Ext.P1 NIT, in case after opening the Cover 1, the number of MES enlisted Contractors of eligible Class as well as unenlisted Contractors is less than 7, then applications of MES Contractors one/two Class below the eligible Class shall also be considered.

6. Since there were 11 bidders who participated in the tender and 8 of them are enlisted in Class A and above, bidders below the Class A are ineligible to participate. The counsel for the 3^rd respondent relied on the judgment of the Hon’ble Apex Court in Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and another [(2016) 16 SCC 818] and argued that unless the threshold of malafides, intention to favour someone or arbitrariness, irrationality or perversity exists, constitutional courts shall not interfere in the decision making process or the decision of the authorities.

7. Respondents 1 and 2 also filed counter affidavit. In respect of the first bid, there were two Firms eligible for consideration. After opening the technical bid but befor