Delhi High Court
Sh. Nitin Sabharwal Proprietor Of M/S Jk ... vs Union Of India And Anr on 22 April, 2024
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11118/2023, CM APPL. 15634/2024, CM APPL.
43166/2023, CM APPL. 43167/2023, CM APPL. 52618/2023, CM
APPL. 54461/2023
SH. NITIN SABHARWAL PROPRIETOR OF M/S JK
DENTAVISION ..... Petitioner
Through: Mr. Ankit Jain, Mr. Mohit Gupta, Mr.
Lakshay Marwaha, Mr. Harpreet
Singh Sandhu, Mr. Aditya Chauhan,
Ms. Apurva Tyagi, Ms. Tanisha
Gopal, Mr. Divyanshu Rathi and Ms.
Gunjan Negi, Advocates
versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Shoumendu Mukherji, SPC with
Ms. Megha Sharma, Ms. Akanksha
Gupta, Advocates with Ms. Rudra
Paliwal, GP and Mr. Alik Kumar
Singh and Lt. Col. Akshay
Waingankar, CDR for UOI
% Date of Decision: 22nd April, 2024
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, ACJ: (ORAL)
1. Present writ petition has been filed under Article 226 of the
Constitution of India seeking issuance of writ of mandamus to declare the
action of the Office of the Director General of Armed Forces Medical
Services ('DGAFMS') i.e., Respondent No. 2 herein, of excluding the
Petitioner's Firm from the final list of eligible bidders in tender bearing No.
GEM/2023/B/3249985 as illegal, arbitrary and unconstitutional.
2. It is stated that, initially, in the year 2022, Respondent No. 2 issued a
notice inviting tender bearing tender ID: 2022-ARMY-501635-1 ('earlier
tender' or 'revoked tender') for procurement of 22 quantities of Cone Beam
Computer Tomography ('CBCT') equipment; and the Petitioner Firm
participated in the earlier tender process. It is stated that equipments offered
by the Petitioner Firm were examined by the officials of the Respondent No.
2, however, the Respondent No. 2 without any justification, discharged the
earlier tender.
2.1. It is stated that subsequently on 10th March, 2023, Respondent No. 2
issued a fresh tender bearing No. GEM/2023/B/3249985 for procurement of
22 quantities of the same CBCT equipment ('fresh tender'); and the
Petitioner Firm this time again, submitted its bid to participate in the fresh
tender process.
2.2. It is stated that Respondent No. 2 by its letter dated 13 th June, 2023,
requested the Petitioner Firm to upload copies of recent comparative supply
orders of minimum quantity number three, supplied by the Petitioner Firm to
other Government/ Semi-Government/ CPSE institution of hospitals for
same or similar category products in the last three financial years. In
response to the said letter, the Petitioner Firm re-submitted the copy of the
document stating that it has supplied two (2) quantities of equipment's to
Central/ State/ Government Hospital during the financial year 2022-2023.
2.3. It is stated that upon being informed by the officials of Respondent
No. 2, that Petitioner Firm's name is not in the final list of eligible bidders,
the Petitioner Firm submitted a representation dated 01st August, 2023 to
Respondent No. 2, requesting them to communicate the reasons for
Petitioner's Firm's exclusion from the list of eligible bidders; however, no
response was received.
2.4. In the petition it has been stated that the Petitioner Firm believes that
it has been disqualified as it does not satisfy the stipulation of past
performance of supply of similar equipment in a single financial year of at
least 10% of the tender quantity, which minimum quantity has been assessed
by Respondent No. 2 as 03. The Petitioner firm in the writ petition contests
the said disqualification on the plea that the minimum quantity as per tender
condition is to be construed as 02 and not 03.
2.5. Thus, aggrieved by the actions of Respondent No. 2 of excluding the
Petitioner Firm from the list of eligible bidders in the fresh tender process,
without assigning any reason, the Petition Firm, has preferred the present
writ petition.
Arguments of the counsel for the parties
3. Learned counsel for the Petitioner Firm states that the reason and
justification for excluding the Petitioner Firm from the list of eligible
bidders is the non-submission of documents pertaining to supply orders of
minimum quantity-03 in one financial year to any of the listed organisations
in the tender document. He states that this reason, however, smacks of bias
against the Petitioner Firm as in several other tenders issued by the same
Ministry, the Respondents have adopted the method of rounding off the
decimal/faction to the nearest lower whole number qua the quantity of
equipment supplied in past to enable the bidder to show its past
performance. In this regard, he refers to the past performance clause
stipulated in the sample tenders annexed with CM APPL. 52618/2023.
3.1. He states that however, in the present petition, Respondent No. 2 has
arbitrarily deviated from the norm, rounded off the decimal to the next
higher whole number and thus, arbitrarily rendered the Petitioner Firm
ineligible from participating in the fresh tender process.
3.2. He states that in the earlier tender, issued in the year 2022 for the
same equipment i.e., CBCT, the tender document similarly stipulated that
the bidder was required to file documents showing supply of atleast 10% of
the subject item against a total supply quantity of 22 equipments. He states
that the Petitioner Firm had participated in the earlier bid and filed copies of
supply orders of quantity-02 equipment. He states that the Petitioner Firm
was declared eligible by Respondent No. 2 under the earlier tender on this
basis. He states that the officials of Respondent No. 2 also conducted a demo
of the equipments of the Petitioner Firm, however, thereafter the earlier
tender was abruptly discharged. He states that since all facts and
circumstances remain the same, disqualifying the Petitioner Firm from
participating in the fresh tender process on an interpretation that the bidder
must prove supply orders of minimum quantity-03 to satisfy the clause of
10% is arbitrary and irrational.
3.3. He states that the financial bid of the Petitioner Firm is drastically
lower than the bid of the declared L-1 bidder. He states that other than the
condition of supply of minimum-03 quantity with respect to past
performance, the Petitioner Firm complies with all other conditions with
respect to OEM authorization, OEM turnover, bidder turnover etc. He states
that the technical specifications of the equipment offered by the Petitioner
Firm meets the requirements of Respondent No. 2 and therefore, Respondent
No. 2 has wrongfully declared the Petitioner Firm ineligible.
4. In reply, learned counsel for the Respondents states that the Petitioner
Firm herein admittedly failed to comply with the express tender condition of
the past performance stipulated in Para 8, Sub-Para A (3) of the tender
document, which requires that the bidder will provide a copy of the supply
orders showing that the bidder has supplied atleast 10% of the quantity of
the subject item or similar item in any one of the last three financial years or
current year.
4.1. He states that the Petitioner Firm failed to submit along-with its bid,
the proof of the requisite quantity of supply orders i.e., atleast 10% of the
quantity of subject items. He states that vide letter dated 13 th June, 2023, the
Petitioner Firm was called upon to furnish the supply orders of minimum
quantity-03 and in response the Petitioner Firm submitted the documents
which showed supply orders of quantity-02 equipment. He states this was
not in compliance with the tender terms, as the quantity under the fresh
tender is 22 and therefore, to meet the 10% criteria, the bidder was required
to provide supply orders of quantity-03.
4.2. He states that the submission of the Petitioner Firm that the past
performance criteria of 10% of the minimum quantity supplied which stands
at 2.2 and should be read down to a lower whole number of 02 is not in
conformity with the practice followed by the Respondent No. 2 in any of its
tender process. He states that Respondent No. 2 has consistently followed
the standard practice of adopting the next higher whole number, while
rounding off a decimal, to determine the minimum past performance criteria
and therefore, Respondent No. 2 adopted the criteria of 03 by rounding off
2.2 to the higher number. He relies upon the contents of short affidavit dated
17th February, 2024, filed on behalf of Respondent No. 2, wherein details of
19 tenders issued by Respondent No. 2 have been enlisted, which reflects
that Respondent No. 2 has consistently rounded off the decimal/fraction to
the next higher whole number for determining the criteria of past
performance.
4.3. He states that the Petitioner Firm's reference to the sample tenders
annexed with CM APPL. 52618/2023 is not binding on the Respondent
No.2. He states that the said tenders were issued by Director General Dental
Services ('DGDS'), whereas the fresh tender has been issued by DGAFMS.
He states that the past performance clause of the tenders annexed with CM
APPL. 52618/2023, clearly indicated a whole number and is therefore,
distinct from the past performance clause in the present tender.
4.4. He states that moreover, the scope of both the said tenders in CM
APPL. 52618/2023 pertain to simple electro medical equipment which costs
approximately Rs. 1,00,000/- per equipment, which are under 'Revenue
Budget Head'. He states, that CBCT equipment which is the subject matter
of procurement is a sophisticated High Precision Equipment with an
estimated value of Rs. 75,00,000/- to Rs. 1,00,00,000/- approximately; with
a total tender value of the capital procurement of Rs. 22,00,00,000/-. He
states that the present tender procurement is under 'Capital Budget Head'.
4.5. He states that in the present tender Respondent No. 2 has to test
whether the bidders have the supply capacity to deliver 22 quantities of
CBCT equipment within 120 days and it was to this effect, the condition of
supply of minimum-03 equipment in a single financial year was stipulated
for each bidder. He states that non-supply of minimum-03 subject equipment
by Petitioner Firm in one financial year raises reasonable doubts about the
capacity of the Petitioner Firm to supply 22 equipments within 120 days,
under the fresh tender. He states that to achieve due compliance with the
capacity of the bidder to meet the delivery requirements, the annual turnover
requirement of the OEM has been reserved at Rs. 2,500 Lakhs.
4.6. He relies upon the judgment of the Supreme Court in Michigan
Rubber (India) Limited vs. State of Karnataka and Others1 to contend that
this Court should not interfere in the pre-conditions laid down in the present
tender, which are intended to ensure that the bidder has the capacity and the
resources to successfully execute the work. He also relies upon the
judgments of this Court annexed with his counter affidavit to the same
effect.
Analysis and finding
5. We have heard the learned counsel for the parties and perused the
record.
6. The issue arising for consideration is very narrow. The admitted facts
are that the Director General of Armed Forces Medical Services
('DGAFMS') i.e., Respondent No. 2 on 10th March, 2023 issued a fresh
tender for procurement of 22 units of item: Cone Beam Computer
Tomography Equipment ('CBCT') through the GeM portal. Each equipment
is valued at around Rs. 75,00,000/- to Rs. 1,00,00,000/- and the total tender
value of the impugned capital procurement is Rs. 22,00,00,000/-. The
equipment is a high precision equipment and is procured by Respondent No.
2 under the Capital Budget Head.
7. The tender conditions2 stipulate a delivery period of 120 days by the
(2012) 8 SCC 216 paragraph 23
Technical specifications at page 5 of the fresh tender document
successful bidder for delivery of one machine each to twenty-two different
locations.
8. Further, the eligibility conditions for a bidder prescribes a mandatory
past performance criterion, which reads as under: -
"6. Past Performance: The Bidder or its OEM {themselves or through re-
seller(s)} should have supplied same or similar Category Products for
10% of bid quantity, in at least one of the last three Financial years
before the bid opening date to any Central/ State Govt Organization / PSU
/ Public Listed Company. Copies of relevant contracts (proving supply of
cumulative order quantity in any one financial year) to be submitted along
with bid in support of quantity supplied in the relevant Financial year. In
case of bunch bids, the category related to primary product having highest
bid value should meet this criterion.
...
Buyer added bid specific terms and conditions
8. Buyer Added Bid Specific ATC
...
A. FOLLOWING DOCUMENTS ARE REQUIREDTO BE
UPLOADED FAILING WHICH THE BID WILL BE REIECTED
S. No. Clause Details Remarks
03 Past Bidder will The supply order should be
Performance supply copy of (i) Either from Central/ State
supply orders govt organisation
showing that /PSU/Public listed company
he has supplied or
at least 10% (ii) From Tertiary Care
qty of subject Centre or organization having
item or similar 10 or more diagnostic labs. In
item in any one this case bidder will also
of the last attach a performance
three financial certificate......
years or Duly signed by the seller and
current year. the pro curing organization"
(Emphasis Supplied)
9. The Respondent No. 2 has contended that since 10% of the tendered
quantity of 22 equipment works out to 2.2, they have rounded off this figure
03, being the next higher whole number, as per their past standard practice
followed in all tenders. The Respondent No. 2 has placed on record a short
affidavit dated 17th February, 2024 enlisting details of 19 tenders issued by
Respondent No. 2 to GeM portal, where the qualifying quantity for meeting
past performance was consistently rounded off to the next higher whole
number. Respondent No. 2 has separately in its short affidavit dated 15th
November, 2023 explained the necessity for prescribing this condition of
minimum supply to state that this condition has been included to test the
capacity of the successful bidder to deliver 22 equipments within 120 days
from the execution of the contract. The Respondent No. 2 has further stated
that initially bids were received from four firms and except the Petitioner
Firm herein, the remaining bidders have duly submitted the proof of supply
orders of minimum-03 equipment in a single financial year and therefore,
they were permitted to participate.
10. The Respondent No. 2 has stated that if Petitioner Firm's contention
of supply of 02 equipment is accepted, it would be in contravention of the
tender condition as supply of 02 equipment equals to 9.09%, whereas the
tender condition is that bidder should have supplied at least 10% of the
tender quantity. It is thus contended that rounding off the figure of 2.2 to 03
equipment is the more reasonable interpretation of the said tender condition.
11. The Petitioner Firm has however, sought to rebut the aforesaid
explanation offered by Respondent No. 2, by relying upon the two tenders
annexed with CM APPL. 52618/2023 issued by Director General Dental
Services ('DGDS'), who is also working under the aegis of Respondent No.
2. The relevant clause of the said tenders, relied upon by the Petitioner Firm
read as under: -
Tender bearing bid number: GEM/2023/B/3882472, dated 1st September, 2023
"19. Buyer Added Bid Specific ATC
...
A. FOLLOWING DOCUMENTS ARE REQUIREDTO BE
UPLOADED FAILING WHICH THE BID WILL BE REIECTED
S. No. Clause Details Remarks
03 Past Bidder will supply The supply order should
Performance copy of supply be
orders showing (i) Either from Central/
that he has State govt organisation
supplied at least /PSU/Public listed
10% of the company
minimum qty And/ or
required in the
instant bid (i.e., (ii) From Dental College
Qty - 30 in this / Dental Labs in India
bid) of subject item signed by the seller and
or similar item in the procuring
any one of the last organization.. (Draft
three financial Performance Certificate is
years or current attached as Buyer added
year. bid specific ATC)"
(Emphasis Supplied)
The subject matter of this tender was the supply of a total quantity of 301
Dental X-ray machines.
"Tender bearing bid number: GEM/2023/B/3992033, dated 4th October, 2023
20. Buyer Added Bid Specific ATC
...
A. FOLLOWING DOCUMENTS ARE REQUIREDTO BE
UPLOADED FAILING WHICH THE BID WILL BE REIECTED
S. No. Clause Details Remarks
03 Past Bidder will The supply order should be
Performance supply copy of (i) Either from Central/ State
supply orders govt organisation
showing that he /PSU/Public listed company
has supplied at And/ or
least 10% qty
(ii) From Dental College /
(i.e., Qty- 04 in Dental Labs in India signed
the instant bid) by the seller and the
of subject item procuring organization..
or similar item (Draft Performance
in any one of Certificate is attached as
the last three Buyer added bid specific
financial years ATC)"
or current year.
(Emphasis Supplied)
The subject matter of this tender was the supply of a total quantity of
42 furnaces.
12. The Petitioner Firm has contended that since Director General Dental
Services has rounded off the decimal in the aforesaid two tenders to the
lower whole number, the Respondent No. 2 as well should have reasonably
rounded off the decimal of 2.2 in the present tender to 02 quantity.
13. We are unable to accept the contention of the Petitioner Firm.
Initially, in the writ petition, the Petitioner Firm raised a ground that it
reasonably believed that the others bidders had similarly only supplied 02
equipment in one financial year but they had been permitted to participate in
the bidding process; and the Petitioner Firm had been wrongfully excluded
by Respondent No. 2. The said ground has not been pressed by the Petitioner
Firm as Respondent No. 2 has categorically stated that the remaining three
bidders, who have been permitted to participate in the bidding process had
all supplied minimum 03 equipment in one financial year.
14. The Petitioner Firm also contended in the writ petition that since 10%
of 22 units would be 2.2, the same should be rounded off to 02 as the
Petitioner Firm was declared as an eligible bidder in the earlier tender round
for the same equipment. This was the only basis offered by the Petitioner
Firm in the writ petition for contending that the past performance condition
of 10% supply in the tender conditions should be read to mean past supply
of 02 equipment and not 03 equipment. It was during the pendency of the
petition, that the Petitioner Firm scurried around for the two tenders filed
along-with CM APPL. 52618/2023 to justify its aforesaid plea to contend
that like Director General Dental Services, the Respondent No. 2 herein as
well should round off the figure of 2.2 towards the lower whole number of
15. We, however, find no merit in the submission of the Petitioner Firm
as firstly, Director General Dental Services and Respondent No. 2 are
distinct tender issuing authorities. Secondly, in the tenders issued by
Director General Dental Services in the tender condition, the whole number
resulting from the percentage was specified in the tender condition itself as
highlighted above. The tendering authority in those two tenders had
therefore, right at the outset fixed the minimum past performance criteria in
the tender condition as a whole number, which was marginally lower than
the percentage specified. In contrast, Respondent No. 2 in the present tender
had not specified any whole number and has only mentioned the percentage
of the quantity of past supply. The Petitioner Firm therefore had no basis for
assuming that the tender condition of 10% would be relaxed to read as the
lower whole number 02 and not the higher whole number 03. This
interpretation of the tender condition by the Petitioner Firm to assume 02
was unilateral and it did not seek any clarification from Respondent No. 2
prior to the submission of the bid with respect to the same. The Respondent
No. 2 in its short affidavit dated 17th February, 2024 has reasonably
explained that it has consistently as a matter of standard practice always
rounded off the decimal in the past performance criteria to the next higher
whole number. The contents of Respondent No. 2's affidavit dated 17 th
February, 2024 are not in dispute. The relevant portions of the affidavit
dated 17th February, 2024 read as under: -
"2. That the present matter is listed for final hearing. The Answering
Respondent for the assistance of this Hon'ble Court would like to place
details of previous tenders that have been published by the answering
Respondent wherein as standard practice the next higher whole number
has been adopted to determine the minimum past performance criteria.
A list is appended hereunder as follows:
S.N Bid No. Name of Qty Required Past Qualified Qty as
Equipment Performance per 10% Past
at least 10% performance
of Total
tendered Qty
Scanning
Machine
6 Radiography
1 Cardiac Output
Monitor
4 Embedding
Machine
6 ular Joint
Arthroscope
0 Hard and Soft
Tissue
0 Fluoroscope X-
Ray Machine
3 Rigid Nasal
Endoscope
0 Nerve
monitoring
System
5 Collagen
Corneal Cross
Linking System
6 computerized
Radiography
System
2 Microtome
4 debrider system
for shaving soft
tissues small
bones in the ENT
and cranial
anatomies
7 care ICU bed
17 GeM/2022/B/1/89282 Operating table 54 10% 5
4 for minor ENT
surgeries
4 induction casting
machine
5 Machine
3. In all the aforesaid tenders, the process was completed successfully and
supply orders were issued.
4. It is reiterated that Petitioner was bound by the terms & conditions of
the instant Bid document and obligated to furnish supply orders of at least
10% of the total quantity specified in the bid which works out to be 2.2
quantities i.e. 3. It is submitted that strict enforcement of the terms of
tender requires 10 % of 22 i.e. 3. However, in the present case the
Petitioner firm has submitted only 9.09% (approx) of the total bid qty
which is clearly a non-fulfilment of the tender requirement."
(Emphasis Supplied)
16. The Supreme Court has consistently held that interpretation by the
tender inviting authority of the eligibility terms of the tender is not to be
interfered with lightly by the Court in judicial review if it appears reasonable
and plausible. In this regard, it would be relevant to refer to the judgment of
the Supreme Court in Agmatel India Private Limited vs. Resoursys
Telecom and Others3, whereafter reviewing the law on this issue the Court
held as under: -
"24. The scope of judicial review in contractual matters, and particularly
in relation to the process of interpretation of tender document, has been
the subject-matter of discussion in various decisions of this Court. We
need not multiply the authorities on the subject, as suffice it would be refer
to the three-Judge Bench decision of this Court in Galaxy Transport
Agencies wherein, among others, the said decision in Afcons
Infrastructure has also been considered; and this Court has disapproved
the interference by the High Court in the interpretation by the tender
inviting authority of the eligibility term relating to the category of
vehicles required to be held by the bidders, in the tender floated for supply
of vehicles for the carriage of troops and equipment.
...
26. The abovementioned statements of law make it amply clear that the
author of the tender document is taken to be the best person to
understand and appreciate its requirements; and if its interpretation is
manifestly in consonance with the language of the tender document or
subserving the purchase of the tender, the Court would prefer to keep
restraint. Further to that, the technical evaluation or comparison by the
Court is impermissible; and even if the interpretation given to the tender
document by the person inviting offers is not as such acceptable to the
constitutional court, that, by itself, would not be a reason for interfering
with the interpretation given.
...
33. Viewed from any angle, interference by the High Court in this matter
does not appear justified, particularly when no case of mala fides or bias
is alleged. Every decision of the administrative authority which may not
appear plausible to the Court cannot, for that reason alone, be called
arbitrary or whimsical. The High Court, in the present matter has
obviously proceeded with an assumption that the view as being taken by it,
in acceptance of the case of the writ petitioner, was required to be
substituted in place of the views of the tender inviting authority. That has
been an error of law and cannot sustain itself in view of the consistent
binding decisions of this Court, including the three-Judge Bench decision
in Galaxy Transport."
(Emphasis Supplied)
17. In our opinion, the interpretation given by the Respondent No. 2 to the
relevant tender condition of 10% appears to be reasonable and gives full
(2022) 5 SCC 362
force to the condition of minimum supply of 10%, whereas, if the contention
of the Petitioner Firm, is accepted it would result in the condition being
lowered to 9.09%. As, supply of 02 equipment equals to 9.09% of the
tendered quantity. Further, significantly, Respondent No. 2 has also proved
to the satisfaction of this Court that it follows a standard practice in all its
tenders while giving effect to the past performance clause by rounding off
the decimal to the next higher whole number.
18. The explanation given by Respondent No. 2 with respect to the
inapplicability of the tenders [annexed with CM APPL. 52618/2023] issued
by Director General Tender Services is reasonable. In our opinion, the
tender conditions are incomparable as the whole number was clearly
mentioned in those tenders, whereas Respondent No. 2 has elected to only
mention the percentage and therefore, Petitioner Firm had no basis for
assuming the lower whole number. Also, the Petitioner Firm before
participating in the bid did not seek any such clarification.
19. Further, Respondent No. 2 has also reasonably explained the necessity
for providing the said condition of past performance of 10% by stating that it
is a condition stipulated to ensure the capacity of the successful bidder to
effect delivery of the 22 equipments within 120 days. It is well settled pre-
conditions laid down in the tender for evaluating the capacity of the bidder
are reasonable and do not merit any interference.
20. In this regard, the reliance placed by the Respondent on the judgment
of the Supreme Court in Michigan Rubber (India) Ltd. (Supra) is apposite
and the relevant para reads as under: -
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State,
and non-arbitrariness in essence and substance is the heartbeat of fair
play. These actions are amenable to the judicial review only to the extent
that the State must act validly for a discernible reason and not whimsically
for any ulterior purpose. If the State acts within the bounds of
reasonableness, it would be legitimate to take into consideration the
national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the
executive and the courts hardly have any role to play in this process
except for striking down such action of the executive as is proved to be
arbitrary or unreasonable. If the Government acts in conformity with
certain healthy standards and norms such as awarding of contracts by
inviting tenders, in those circumstances, the interference by courts is very
limited;
(c) In the matter of formulating conditions of a tender document and
awarding a contract, greater latitude is required to be conceded to the
State authorities unless the action of the tendering authority is found to be
malicious and a misuse of its statutory powers, interference by courts is
not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid
down to ensure that the contractor has the capacity and the resources to
successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public
interest in awarding contract, here again, interference by court is very
restrictive since no person can claim a fundamental right to carry on
business with the Government."
(Emphasis Supplied)
21. The condition of past performance clause is not under challenge and
its reasonableness is not in dispute. The Petitioner Firm has only sought to
challenge the interpretation of the said clause by Respondent No.2, which
interpretation in our opinion is reasonable and plausible and requires no
interference in this petition.
22. The Petitioner has lastly contended that since it was permitted to
participate during the earlier tender, it reasonably believed that it is eligible
to participate in the present tender, which is also a circumstance that in our
opinion would not form any basis to direct Respondent No. 2 to relax the
condition of past performance in favour of the Petitioner Firm.
23. Before concluding, we may note that this matter was last listed on 15th
April, 2024, when the Respondent's application CM APPL. 15634/2024 for
early hearing was allowed and the matter was directed to be listed for
hearing today. Inadvertently, the order dated 15th April, 2024 records the
next date as 22nd July, 2024. However, the date of 15th April, 2024 was fixed
with the consent of the parties. The matter has been listed today pursuant to
an office note by the Court Master and has been heard and disposed of. The
date of 22nd July, 2024 is cancelled.
24. We accordingly find no merit in the present petition and the same is
accordingly dismissed along-with pending applications.
ACTING CHIEF JUSTICE
MANMEET PRITAM SINGH ARORA, J
APRIL 22, 2024/rhc/MG
