The terms of the invitation to tender are not normally open to judicial scrutiny and can only be interfered with if they are wholly arbitrary, discriminatory, or actuated by malice.

A. K. GANGULY, C. J.

( 1 ) M/s. Faridabad gurgaon Minerals (hereinafter referred as the petitioner) filed this writ petition impugning Clause 8 (vii)of the clauses appended to tender Notice No. 85 dated 25-5-2007. The said tender was called by Orissa Mining corporation Ltd. (hereinafter called OMC)which is a Government of Orissa Undertaking.

( 2 ) BY the said clause it has been provided that an agency which is already doing the work in a mine of OMC Ltd. will not be allowed to take up a second work in the said mine and such agency will not be allowed to participate in the tender.

( 3 ) THE petitioner challenged the said clause on various grounds. One of the contentions of the petitioner is that the said clause whereby the petitioner is debarred from participating in the tender has no nexus with the object which is sought to be achieved by the said Corporation which has floated the said tender. The petitioner admits that on the date of the said tender i. e. 25-5-2007, the petitioner was an agency who was already working in the mine of OMC and as such is hit by the said clause. The petitioner further submits that the aforesaid tender is only about Daitari mines and the exclusion will only affect the petitioner since the petitioner is the only existing agency working in the said mines.

( 4 ) LEARNED counsel for the petitioner submits that the aforesaid clause was inserted only for the purpose of excluding the petitioner from participating in the said tender. It has been asserted by the petitioner that the last date for dropping the tender is 11-6-2007 and the petitioner would be at the site on 11-6-2007. The petitioner submits that previously also similar clause was there in the tender notice No. 16 dated 11-11-2004 and Tender Notice No. 65 of 7-7-2006 and the Tender Notice No. 75 of 18-11-2006 had similar clauses. But in all the said Tender Notices the clause which allegedly debarred an existing tenderer was worded differently. In fact, it was worded to the extent that if the work of an existing agency is due to end within six months of the date of issue of NIT and there is no possibility that the work tendered for and the existing work at hand, will operate concurrently these restrictions will not be applicable to the existing agency.

( 5 ) IN the writ petition it has been stated that the petitioner was declared as a successful bidder and was accordingly awarded the tender and was issued Letter of Intent dated 29-1-2005. The said letter of intent contained the rates for the execution of work along with transportation for a period of three years. Petitioner's assertion is that as per the Letter of Intent, contract was entered into for a period of three years but on a yearly basis. The contact could be extended for the subsequent year basing on the satisfactory performance of the petitioner. As the petitioner executed the work satisfactorily, the opposite party entered into the second contract dated 1-5-2006 with the petitioner in pursuance of the Letter of Intent and that period expired on 24-2-2007. Thereafter the petitioner executed the second contract successfully and the petitioner has entered into the third contract. According to the petitioner, it represented to the opposite party that in view of the increase in price and change in certain conditions and imposition of certain restrictions and regulations, it is difficult for the petitioner to execute the work for the third year on the same terms as contained in the Letter of intent and the petitioner requested the opposite party to consider the petitioner's case sympathetically for incorporation of escalation clause in the contract. As such, the petitioner asked for the change of rates for the third year. Pursuant to such representation, the opposite party issued fresh Letter of Intent stating that the representation of the petitioner has been carefully considered and the petitioner will have to execute the work only for a period of 25-2-2007 to 30-6-2007 at the previ