Arbitrary limitation of approved makes/brands in a tender process can be deemed discriminatory and in violation of government orders, leading to the quashing of the tender process.

JUDGMENT :

VIPIN SANGHI, J.

1. We have heard learned counsels and proceed to dispose of this writ petition.

2. The petitioner has preferred the present writ petition to assail the technical bid evaluation dated 19.01.2023, whereby the technical bid of the petitioner has been rejected by the respondent in relation to its tender initiated for replacement of old lifts at Hill View Apartment & Radha Krishna Bhawan and installation of new lift at Rajendra Bhawan Mess with CAMC at IIT Roorkee. The petitioner also seeks a direction to restrain the respondent from awarding the contract to a third party.

3. The case of the petitioner is that the petitioner is a well-established manufacturer and supplier of lifts. The respondent-IIT Roorkee invited the aforesaid tender for lifts. While doing so, the respondent stipulated the specific brands/makes of lifts which were accepted under the tender. The list of approved makes in relation to the lift was ‘OTIS/KONE/ Mitsubishi/Schindler/ECE’. The list of approved makes also contained a note which states that ‘items whose make are not mentioned in the approved make list will be as per direction of EIC (Engineer In-charge)’.

4. The case of the petitioner is that since the petitioner was interested in participating in the tender in question, the petitioner vide representation dated 21.01.2023, made to the respondent, lodged their protest against limiting the participation in the tender by only the aforesaid few brands/makes of lift. The petitioner also referred to the judgment of the High Court of Delhi, in the petitioner’s own case, wherein a similar limitation of makes/brands of lift by the tender inviting authority was quashed and set-aside by the High Court of Delhi, in Writ Petition Nos. 11478 and 11481 of 2019. A copy of the judgment was also enclosed by the petitioner along with the representation.

5. The petitioner stated that it has an indigenous manufacturing facility, and business and its products are required to be encouraged under the “Make in India” Policy of the Government. The positive case of the petitioner in the writ petition is that after the publication of the tender, the petitioner approached the respondent, who informed the petitioner that the list of makes was only indicative. Consequently, after making its representation on 21.01.2023, the petitioner participated in the tendering process by submitting its bid on 06.02.2023. The respondent opened the technical bids on 19.01.2023 and disqualified the petitioner on the ground that though the Authorization certificate from the Original Equipment Manufacturer (OEM) had been attached, it was not issued by one of the approved brands/makes. Thus, the same was ‘not as per NIT’, and that the petitioner did not fulfill the condition 7(a), i.e. Production of authorization certificate from the OEM. It is in this background that the petitioner has preferred the present writ petition.

6. Upon issuance of notice, the respondent has filed its counter-affidavit. The stand taken by the respondent in its counter-affidavit is that the respondent already has lifts of the approved makes/brands operating in its different premises, and the respondent is quiet satisfied with the functioning of those lifts. It is for this reason that the respondent has restricted the offers by only brands/makes with which the respondent is acquainted, and satisfied.

7. Learned counsel for the petitioner submits that the petitioner was informed by the officers of the respondent that the list of makes/brands of the lift was indicative. This submission is denied by the respondent. At the same time, the respondent has not denied the fact that the petitioner made its representation, aforesaid, on 21.01.2023, which remained unanswered till the last date of submission of bids.

8. Learned counsel for the petitioner has taken us through the judgment of the High Court of Delhi in W.P. (C) No. 2060 of 2021 and W.P. (C) No. 4043 of 2021, decided on 04.06.2021. The Division Bench of the