On 27th September, a bench of Delhi High Court consisting of Justice vipin Sanghi and Jasmit Singh held that ambiguity cannot be read into a condition/clause when there exists none, to make the Doctrine of Contra Proferentem applicable. Further, even if such an ambiguity exists, then it should be construed against the drafter of the tender. In the absence of ambiguity, the plain and express meaning of the condition must be complied with.

The bench further stated that Invitation and Evaluation of a Tender is an austere matter. Each and every word of a tender must be given a meaning, and the TEC cannot evolve its own criteria to evaluate the eligibility of the bidders, contrary to the terms and conditions of the tender.

FACTS OF THE CASE:

The present writ petition has been filed to seek the quashing of invitation to tender dated 12.02.2021 bearing No. GEM/2021/b/1032762 issued by Respondent No.1 i.e. Navodaya Vidyalaya Samiti on the portal of Government E-Market Place (GEM), and in particular, letter dated 29.06.2021 issued to the Petitioner. The respondent cannot issued invitation to tender for supply of 68,940 tablets on the online trading portal of the Government of India, i.e. GEM2021/b/1032762. The Petitioner being desirous of participating in the tender process offered its product i.e. tablet, which is being manufactured by an Indian company, namely, M/s Lava International Ltd., on 27.04.2021. On 25.06.2021, the Petitioner was informed that its bid had been rejected – the reason being “technical specification mismatch‟. The communication simply stated that the bidder did not meet all the conditions of the tender. On 29.06.2021, the Respondent gave the reason that the petitioner does not qualify the past performance criteria, as the work orders for smart phones, laptops, aadhar kits, power banks, etc. are not considered as same or similar category products of tablets. Aggrieved by the said action of Respondent No.1, the Petitioner filed the present writ petition.

CONTENTION OF THE PETITIONER:

The following contention had been submitted by the counsel for the petitioner:

  1. It was submitted that the act of Respondent No.1 in excluding smart phones from “same or similar category of products” is unreasonable, and against the principles of fair play and logic.
  2. It was submitted that various State Governments and PSUs had issued similar tenders, wherein past experience of supply of tablets and smart phones were treated alike.

CONTENTION OF THE RESPONDENT:

The following contention has been submitted by the counsel for the respondent:

  1. It was submitted that that smart phones are a different category of product, from tablets and laptops. As per Respondent No.1, tablets, computers and smart phones are different goods as per their technical, commercial and trade related definitions, norms, and regulations prescribed by various authorities.
  2. Learned counsel has relied upon various judgments to argue that it is the general or predominant user, which would determine the category in which the article will fall. They have further argued that identity of an article is associated with its primary function.
  3. It was also submitted that it is the Tender Floating Authority who is the best person to interpret the terms of the tender. The lawfulness of a decision of a Tender Floating Authority can only be looked into if it is arbitrary, irrational, unreasonable, mala-fide or biased.

OBSERVATION AND JUDGEMENT OF THE COURT:

  1. That tablets and smartphones are inherently different products, and are used for different purposes. The primary use of a smartphone was as a communication device, whereas the primary use of a tablet was that as a computing device.
  2. In any event, it is well settled that lack of territorial jurisdiction – if not objected to at the appropriate stage, would not impinge on the jurisdiction of the Court to deal with the matter, if it has subject matter jurisdiction.
  3. Merely because laptops and smartphones are not “same”, it does not mean that they do not belong to “similar category of products”.

Thus the court allowed the petition and quashed the Technical disqualification of the petitioner in respect of the tender in question holding that the rejection of the technical bid of the petitioner is unreasonable, and arbitrary.              

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