In government procurement via portals like GeM, eligibility criteria for past performance regarding 'same or similar items' are interpreted in the context of the primary product to ensure the supplier's technical capability.

V. KAMESWAR RAO, J

( ORAL )

CM APPL. 53215/2026 ( for exemption )

1. Exemption is allowed, subject to all just exceptions.

2. The application stands disposed of.

W.P.(C) 11494/2026 & CM APPL. 53214/2026(Stay)

3. This petition has been filed by the petitioner with the following prayers:-

“A. Issue an appropriate writ in the nature of Certiorari or any other writ, order or direction, quashing/setting aside the impugned disqualification of the Petitioner recorded on the GeM portal in Bid No.GEM/2026/B/7600256 (ANNEXURE-P5);

B. Issue an appropriate writ in the nature of Mandamus or any other writ, order or direction, directing Respondent Nos. 1 and 2 to treat the Petitioner's technical bid as qualified/eligible in Bid No. GEM/2026/B/7600256, and to proceed to open and evaluate the Petitioner's financial bid in accordance

C. Pass any other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.”

4. The challenge in this petition is for setting aside the disqualification of the petitioner for the bid issued on the Government e-Marketplace (GeM) portal by the Municipal Corporation of Delhi (MCD). The reasoning is that the petitioner stands disqualified.

5. Mr.M.Dutta, learned Senior Counsel for the petitioner primarily submits that the disqualification of the petitioner for the bid dated 29.05.2026 floated by the MCD on the GeM portal for supply of Black Lead Pencils, Erasers, Manual Pencil Sharpeners, Metric Scales and Crayons for total quantity of 1,05,11,200 units, is illegal.

6. It is the case of the petitioner that during the pre-bid stage, prospective bidders including the petitioner objected to the eligibility condition originally stipulated being unduly restrictive of competition and contrary to the General Financial Rules, 2017 and also Central Vigilance Commission Circular dated 17.12.2002. He also made reference to the corrigendum dated 09.06.2026 issued by the respondent no.1 clarifying that the past performance requirement stood reduced from 80% to 40% of the total bid quantity of the same or similar items supplied during the last three financial years. He stated, the petitioner submitted its bid by supporting documents evidencing work orders, completion certificates and chartered accountant certificate establishing the supply of 56,63,803 units of same/similar stationery items during Financial Years 2022-23 to 2024-25, being nearly 2.15 times the mandated threshold of 26,27,800 units.

7. He submitted that the petitioner had been disqualified on the ground that it does not fulfil the criteria of the past performance, i.e. supply of 26,27,800 wooden Pencils (primary product of the bid) or similar items thereby impermissibly reading down the amended "same or similar items" criterion to the primary product alone. He submitted that a perusal of the technical evaluation reflected on the GeM portal shows that of all the bidders who participated in subject bid only three — all of whom have declared ‘Nataraj Pencil’ as their Make, none being the OEM itself, have been shown as ‘Qualified’, while genuine manufacturers, including the petitioner, stand excluded. In this regard, he has drawn our attention to various documents filed along with the petition to contend that bid does not really stipulates that said criterion must be with regard to the primary product, but it is “same or similar product”, which includes any other category for which the bid has been issued.

8. Mr. Dutta, would also draw our attention to the page no.51 of the paperbook to contend that it is specifically stated that the bidder will have a work experience for supply of same or similar product to any Central or State Government organisation/ Public Sector Undertaking (PSU) during the last three financial years and, hence, the rejection of the bid on the ground that the petitioner does not meet the criterion of primary product is clearly illegal.

9. On the other ha