A writ petition challenging a request for clarification or commercial justification during an ongoing tender process is premature if no final decision, rejection, or award of contract has been made by the authority.

JUDGMENT

V. KAMESWAR RAO, J.

1. As facts and issue(s) involved in all these petitions are common, which have been filed by the same petitioners, they are being disposed of by this common order.

2. The respondents herein are the Central Government Health Scheme (“CGHS”) through its Director/ Joint Secretary/ Additional Secretary, DGHS and the Secretary, Ministry of Health and Family Welfare, Government of India.

3. The facts as noted from the record are that, on 18.03.2026, tenders were floated by South Zone, North Zone, Central Zone and East Zone of the CGHS for empanelment of ‘Authorised Local Chemists’ for supply of branded medicines and surgical consumables. The last date of bid submission was 08.04.2026. The same was extended and the technical bids were opened on 08.05.2026. The petitioners were declared technically qualified in the bids. On 09.07.2026, financial bids were opened.

4. On 24.07.2026, the respondent no.1/concerned Additional Directors issued a letter(s) calling upon technically qualified bidders to submit a commercial justification of quoted discount in their respective bids as per the format attached, to identify and disallow abnormally lower bids. The petitioners on 23-24.07.2026 addressed an email to respondent no.1 seeking clarification of standard contained in the letter dated 24.07.2026, which as per them was vague and unidentified and sought appropriate extension of time after such amendments.

5. It is case of the petitioner that, on 25/26.07.2026, as an abundant caution, they uploaded the requisite information/supporting documents as per the impugned letter on GeM portal. No response/acknowledgment has been received from the respondents.

6. The case of the petitioners as highlighted by Mr. Akshay Makhija, Mr. Viraj R. Datar and Mr. Tanmaya Mehta and, learned Senior Counsels/counsel for the petitioners is by relying upon Clause 4.1(C) and 7.1 of the Scope of Work, to state that the same guards against predatory pricing by outlawing abnormally low bids. According to them, though the impugned letter is ostensibly framed as a safeguard against predatory pricing and under cutting; the criteria and process laid down in the format to the impugned letter apart from being vague, arbitrary, discriminatory, is malafide, which strikes at the root of public interest.

7. It is their submission that the term ‘commonly prescribed branded medicines’ has been left undefined without actually setting-out a framework which would govern what a ‘commonly prescribed’ medicine would be. According to them, such a term ought to have been clearly defined with standard/objective criteria which ideally ought to be linked to the market- share of the medicines in question. According to them, the term ‘commonly prescribed’ could have been linked to the top 500 brands by value provided in Delhi NCR by wellness centres, as per data available on the procurement website of the Ministry of Health. In the absence of specifically defining the term ‘commonly prescribed’, the respondent has opened the possibility for any medicine claimed by the bidder to be commonly prescribed.

8. According to them, it is not possible to discern whether the requirement is to submit details of commonly prescribed ‘medicines’ marketed by any brand in each of the categories or commonly prescribed ‘brands’ of medicines in each of the categories. Therefore, the method adopted by the respondents to weed out uncompetitive and predatorily priced bids has created more confusion, vagueness, and lack of any objective, verifiable standard against which evaluation can take place. They concede that the petitioners have filed requisite information/supporting documents for the consideration of the respondents but no action has been taken by the respondents till date.

9. It is their submission that, any discount offered over and above 25% to 30% of the MRP is impossible and hence, predatory. They are within their rights to approach this Court even at this stage keeping in vie