The interpretation of tender documents and eligibility criteria should defer to the understanding of the tendering authority. Judicial review should not interfere unless there is mala-fide, arbitrariness, or prejudice to public interest.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. Heard Mr. Syed Riyaz Hussain, learned counsel for the appellant, Mr. T.M. Shamsi, learned DSGI, for the official respondents as well as Mr. Z.A. Qureshi, learned Senior Counsel for the private respondent No. 5.

2. The present appeal has been preferred against the order dated 18.08.2023 passed by the Ld. Single Judge in WP (C) No. 862 of 2023, by which the challenge made by the appellant - writ petitioner to the grant of contract in favour of the respondent No. 5 in terms of the NIT dated 23.11.2022, was rejected by the Ld. Single Judge.

3. The main thrust of arguments of the learned counsel for the appellant before us is that the private respondent No. 5, though was ineligible for participating in the said tender process, was awarded the contract, which is illegal.

4. It has been submitted by learned counsel for the appellant that the respondent No. 5 despite lacking the requisite criteria for participating in the tender was awarded the contract and, as such, the official respondents by allowing an ineligible bidder to take part in the bidding process and also awarding the same, has acted unfairly, arbitrarily and is, thus, against the mandate of Article 14 of the Constitution of India.

5. In the light of the aforesaid submission made, this Court would like to briefly refer to the relevant facts.

6. From the records, it is seen that the respondent authorities on 23.11.2022, had invited online bids from the registered Cooperative Transport Societies of Kargil region for provision of Civil Hired Transport (CHT) of load carrier 1/1.5-ton pickup (4 x 4), for estimated contract value of Rs. 1,85,23,528/- for the period from 01.04.2023 to 31.03.2024.

7. The said tender was for the purpose of hiring private transportation for supply of materials, rations etc. to the army locations in the forward areas of UT of Ladakh which are located at high altitude ranging from 17,000 to 18,000 ft and which remain cut off during the winter season.

8. Further details of the bid were later uploaded in the GeM portal on 09.12.2022 in which the following two requirements were also mentioned:

(i) A minimum average annual turnover of the bidder (for three years) should be 20 lakhs.

(ii) A minimum of 2 years of past experience is required for the same or similar service.

9. We are not concerned with the other terms and conditions of the Tender in this appeal inasmuch as, the controversy revolves around the issue that the respondent No. 5 was not eligible as contended by the appellant herein with reference to the aforesaid two criteria.

10. It is on record and not in dispute that the respondent No. 5 is a registered Cooperative Society which came into existence on 24.07.2021. Learned counsel for the appellant submits that as per the bid document, any prospective bidder is required to possess a minimum of 2 years of experience as a registered Cooperative Society to be eligible for participation in the tender process.

It has been accordingly, contended that as on the date of floating of the tender on 23.11.2022, the respondent no. 5 did not have the requisite 2 (two) years of experience of transportation as a registered co-operative society and, as such, the respondent no. 5 was not eligible. According to the appellant the said two years’ experience of transportation has to be in the capacity of a registered co-operative society, which the respondent no. 5 as a registered co-operative society did not have, as it was registered only on 27.04.2021.

11. Learned counsel for the appellant also contends that respondent No. 5 did not meet the requirement of the minimum average annual turnover of Rs. 20 lakhs for the preceding three years.

12. It has been accordingly, submitted that since the respondent No. 5 was not eligible, the award of contract to respondent No. 5 by the authority was unfair and thus, vitiated, hence, liable to be set a