The enforceable right of the tenderer to challenge unfair treatment or discrimination in the court in the evaluation of tenders.

This writ appeal is directed against the judgment and order of learned Single Judge dated 20.1.2016 passed in W.P.(c) No. 1069 of 2015.

2. The appellant had filed the writ petition praying for quashing the letter dated 23.12.2015 in which the tender dated 7.11.2015 was cancelled by the Deputy General Manager (R), FCI, Regional Office, Manipur.

3. As it appears, Dy. General Manager (R), FCI, Regional Office, Manipur issued e-tender notice on 07.11.2015 inviting tenders for appointment of road transport contractors and the last date for submission of tender was 30.11.2015. The technical bid was to be opened on the same day. In response to the said tender call notice, the appellant submitted his tender on 29.11.2015 with price bid of Rs. 4,314/MT/entire distance. The technical bid was opened on 30.11.2015 in presence of the representatives of the contractors/bidders. Only two contractors/transporters including the appellant were found to be qualified for the price bid. After the price bid was opened, the appellant-firm was found to be the lowest bidder. However, a decision was taken by the FCI to cancel the tender and the appellant was intimated that after evaluation of the price bid by the Tender Committee, it was found that rate quoted by the appellant was on a higher side. Challenging the above decision of the FCI, the writ petition was filed.

4. The respondents contested the writ petition and submitted that after evaluation of the rate quoted by the appellant, it was found to be on the higher side in comparison to the existing contract rates. Existing rate of the work, RH Salchapra to FSD Koirengei (291 km) is Rs.12.8/MT/Km i.e. Rs. 3745.17/MT/entire distance whereas the rate quoted by the appellant-firm in response to the advertised tender was Rs. 4,314/MT/entire distance i.e. Rs. 18.75/MT/km.. In view of such higher price quoted by the appellant, tender was cancelled even though the appellant was the lowest bidder. Shri M. Devananda, learned counsel appearing for the appellant submitted that in respect of the work-RH Salchapra to FSD Sangaiprou (283 kms), bid of another contract was accepted whereas, for the same route, the bid of the appellant for 291 kms. was not accepted. Therefore, the Tender Committee has discriminated between the contractors.

5. Before deciding the question raised by the learned counsel appearing for the appellant, it is necessary to refer to a decision cited by the learned counsel appearing for the appellant in relation to right of a bidder and the scope of judicial review. In the case of Maa Binda Express Carrier and another Vs. North East Frontier Railway and others reported in (2014) 3 SCC 760, it was held that submission of a bid/tender in response to a notice inviting tenders is only an offer which State or its agencies are under no obligation to accept. Bidders participating in the tender process cannot insist that their bids/tenders should be accepted simply because a bid is the highest or lowest. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in evaluation of their bids/tenders. It was further held that in award of contracts Government and its agencies have to act reasonably and fairly at all points of time and to that extent the tenderer has an enforceable right in the Court which is competent to examine whether the aggrieved party has been treated unfairly or discriminated against. Another decision relied upon by the learned counsel appearing for the appellant is the case of Kishan Sahkari Chini Mills Limited & others Vs. Vardan Linkers and others reported in (2008) 2 SCC 500. In the said decision, the Court held that where the contractual dispute has a public law element, the power of judicial review under Art. 226 may be invoked.

6. So far as the present case is concerned, the sole ground on which the appellant has filed the writ petition is that the appellant has been discriminated. The report of the Tender Committee though not marke