2022 Supreme(SC) 49

SUPREME COURT OF INDIA
(From the High Court of Delhi at New Delhi)
DINESH MAHESHWARI, VIKRAM NATH, JJ.
M/s Agmatel India Pvt. Ltd. - Appellant
Versus
M/s Resoursys Telecom & Ors. - Respondents
Civil Appeal No. 786, 787 of 2022 (Arising Out Of SLP(C) No. 16671, 16672 of 2021)
Decided on : 31-01-2022

IMPORTANT POINT
Author of tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with language of tender document or sub-serving purchase of tender, Court would prefer to keep restraint.

Headnote:

(A) Government Contract – Tender – Scope of Judicial Review – Author of tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with language of tender document or subserving purchase of tender, Court would prefer to keep restraint – Technical evaluation or comparison by Court is impermissible and even if interpretation given to tender document by person inviting offers is not as such acceptable to Constitutional Court, that, by itself, would not be a reason for interfering with interpretation given – An interpretation by owner or employer of a project to tender document may not be acceptable to Constitutional Courts but that, by itself, would not be a reason for interfering with interpretation given. (Paras 17 and 20)

(B) Government Contract – Tender – Rejection of technical bid for want of fulfilment of ‘Past Performance’ criterion – Even if both are electronic devices and even if several of their utility features are same or similar, their categorisation under different headings is also a fact not unknown to parties – Beyond this aspect, no adjudicatory process is called for and interpretation as put by tender inviting authority-NVS does not deserve interference – Similarly, if in some of notice inviting tenders, both smart phones and tablets were stated, or in some of tenders, specific product tablet alone was stated, that would also not be decisive because that would depend on purpose for which procurement was being made; and procuring party, i.e., tender inviting authority, ought to be extended latitude to decide on its requirements – Decision, as taken by appellant-NVS and its TEC, cannot be said to be totally baseless or absurd or irrational or illogical – Decision, as taken by appellant-NVS and its TEC, cannot be said to be totally baseless or absurd or irrational or illogical – Interference by High Court in this matter does not appear justified, particularly when no case of mala fide or bias is alleged – Impugned judgment and order set aside and Writ Petition as filed by writ petitioner, dismissed. (Paras 21.2, 22.4, 23, 24, 28 and 29)

(C) Government Contract – Tender – Applicability of ‘contra proferentem rule’ – This rule cannot be applied to lay down that in case of any ambiguity in a tender document, it has to be construed in favour of a particular person who projects a particular view point – In case of ambiguity, if two different tenderers suggest two different interpretations, question would always remain as to which of two interpretation is to be accepted. (Para 24.2)

Facts of the case:

Crux of the matter involved in these two appeals is as to whether the High Court has been justified in interfering with the view taken by the tender inviting authority, i.e., NVS, in rejection of technical bid of writ petitioner for want of fulfilment of ‘Past Performance’ criterion about supply of ‘same or similar Category Products’ of 60% of bid quantity in at least one of the last three financial years?

Findings of Court:

Petition filed by the writ petitioner was required to be dismissed. High Court having allowed the writ petition on rather irrelevant considerations, the impugned order is required to be set aside.

Result : Appeals allowed.