The court emphasized that the tendering authority has discretion in awarding contracts and that courts should not interfere unless there is evidence of arbitrariness, discrimination, or malice in the tender process.

1. Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.

2. It has been stated that the petitioner company is engaged in the setting up of mathematics laboratories and it is a pioneer in the said subject. It had established many such laboratories in the government schools. It had also been imparting training to the teachers on the use of the mathematics laboratories through the resource persons from the Ramanujan Museum and the Mathematics Education Centre, Chennai. It had also conducted many workshops and lectures in all the districts in the State of Tamilnadu.

3. It has also been stated that a tender was called for by the first respondent, for the year 2008-2009 in which the petitioner company had participated. The petitioner and the second respondent were found to be qualified and they were in the zone of consideration. However, it was found that the tender submitted by the second respondent was contrary to the tender conditions. The second respondent was not qualified, as per the tender condition, which had stated that the bidders should have expertise in making high precision components and that they must have supplied the mathematics laboratory articles, satisfactorily, to a minimum of 100 schools, during any one year of the previous three years or to any recognised State or Central Government Educational institutions, including, Colleges and Universities. Even though the second respondent had not satisfied the said condition, its bid had been considered due to extraneous reasons.

4. It had also been stated that the second respondent had no expertise in the field, nor it had imparted training to teachers in the use of mathematics laboratory items. Further, on 28.1.2009, the petitioner had displayed its materials for inspection. While the petitioner had displayed all the necessary materials, the second respondent had displayed only 27 items, out of the 78 items.

5. It had also been stated that in the tender called for by the first respondent, for the year 2009-2010, there were only two bidders. However, the position of the second respondent had remained unchanged. Even though the second respondent was not qualified to participate in the bidding process, it was permitted to do so. Further, the materials displayed by the second respondent were not approved by the expert committee, as they do not satisfy the quality and the other specifications prescribed. However, the second respondent had been given one months time to rectify the defects and to display its projects for inspection, on 8.2.2010, even though the first respondent had no authority to do so. Once again, the first respondent had called for tender, for the year 2010-2011. A new condition had been introduced in the tender notice stating that the annual turnover of the participant should be Rs.200 lakhs during any one of the past three years, namely, 2007-2008, 2008-2009 and 2009-2010. It was intended only for the sake of eliminating the other participants, in order to favour the second respondent.

6. The learned counsel appearing on behalf of the petitioner had submitted that no condition can be fixed in the tender notification, that has no nexus or object to the selection process. The fixation of the minimum turnover for participating in the tender process for the object of imparting the education in colleges, is unreasonable. Such a condition had been introduced only for the sake of preventing the other participants from taking part in the tender process and in order to favour the second respondent. Such a qualification fixed by the first respondent should have relevance and it should relate to the products that are likely to be considered. The tender condition fixed by the first respondent is arbitrary, as it is violative of the provisions of the Competition Act, 2002.

7. The learned counsel had also submitted that Clauses-2 and 3 of the tender conditions should be read