Judicial review in tenders limited to mala fides, arbitrariness, irrationality impacting public interest; courts defer to authority's interpretation of eligibility unless perverse.

JUDGMENT :

G.S. Sandhawalia, C.J.

The challenge in the present writ petition is to the order dated 24.03.2025 [Annexures P-14 & P-15], whereby the technical bid of the petitioners was rejected with the remarks “technically disqualified” regarding the bid made on 03.01.2025. Resultantly, out of the five bidders, three persons were put in the list to compete the financial bid programme of tenders for supply of “5000 MT (Approximately) BIS Certified Pregnancy Ration (Type-II) for Cattle” opened on 17.01.2025.

2. Learned Senior Counsel for the petitioners has submitted that the disqualification was on account of the fact that the petitioners did not have the minimum five years’ experience in manufacturing/marketing the goods in question. The eligibility criteria for participation under Clause XXVII, reads as under:-

5. The tenderer should be manufacturing/marketing the quoted BIS Certified Pregnancy Ration (Type- II) for Cattle for the last minimum five (5) years. The quoted BIS Certified Pregnancy Ration (Type- II) for Cattle' should be easily available in the market under same brand name by which name the product has been quoted in the tender.
6. The tenderer has to also submit (Upload) the online proof of Cost of Tender Document, Earnest Money Deposit (EMD) and documents etc, as required/specified in this tender document.
7. The company turnover for the manufacture and sale of BIS Certified Products taken together should be at least Rs.45.00 Crores during the last consecutive three years while product turnover for BIS Certified Pregnancy Ration (Type II) for Cattle should be at least Rs.1.50 crores during last consecutive three years. The cumulative sales turnover for the last 5 years is required but the tender will be decided on cumulative sales turnover for the last three years. In this connection please refer page No.24 of the tender document.
8. The production capacity of the Feed Manufacturing unit must be minimum 5000 MT/month at one location. This capacity should be got certified from the Govt. agency.”

3. It is the contention that vide Notification dated 15.11.2016 [Annexure P-20], the State had given benefits under the “Startup/Innovation Projects/New Industries Scheme” to provide skills to the youth/potential and there was an exemption under Clause 7.3.8, as such, to grant the said benefit for the experience as per proviso to Clause 7.3.8. to State based application but not to those based outside the State and was discriminatory. The said proviso reads as under:

“7.3.8 Purchase Preference by Govt. of H.P./ Public Sector undertaking: The products of Small Scale Industry including 'Village Industry' as defined under the Incentives Rules, 2004 as amended from time to time and located within Himachal Pradesh is being given purchase preference in respect of purchases affected by the Government Departments, Boards and State owned or controlled Corporations. Purchase orders to such firms may be placed at the lowest approved rates at least to the extent of 30% of the total procurement provided the quoted price of such local units are within the range of 15% of the L-1 rates.
Provided further Start Ups in micro and small scale categories in the manufacturing sector will also be entitled for such purchase preference by Govt. of HP/PSUs. Such Start Ups may also be exempted from the prior experience/turnover requirements provided they meet the requisite quality standards as laid down in the tender.”

4. It is submitted that the said benefit has not been extended to the petitioners and would run foul of Article 14 of the Constitution of India. On the other hand, counsel