Judicial Review Can Be Resorted To When Terms Of Invitation To Tender Are Alleged To Be "Tailor-Made" To Suit Certain Participants: J&K High Court

Underlining that judicial interference is warranted only in cases of arbitrariness, mala fide or procedural irregularities the Jammu and Kashmir and Ladakh High Court has observed that Court can show its indulgence in tender matters, particularly when the terms of an invitation to tender are alleged to be "tailor-made" to suit certain participants.“.. it is made clear that the scope of judicial review is very limited and is available in cases, where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process”, observed Justice Wasim Sadiq Nargal. The court made these observations while hearing a plea filed by some professional transporters owning fleets of tank lorries who had been active participants in tenders floated by Bharat Petroleum Corporation Limited (BPCL). Through their plea they had challenged the cancellation of two earlier tenders and the terms of the third tender issued on March 20, 2024, alleging arbitrary rejection of their bids. Their primary contention was that the tender conditions favored certain bidders and unfairly excluded their vehicles, which were disqualified based on descending age criteria.BPCL defended its actions by stating that the tender process was transparent and adhered to the terms and conditions outlined in the Notice Inviting Tender (NIT). They further argued that the petitioners, having participated in the process without objection, could not later challenge its terms.After meticulously considering the rival contentions Justice Nargal reiterated that its role is confined to assess the fairness and legality of the tender process rather than review the merits of administrative decisions. Drawing on precedents, including Tata Cellular v. Union of India (1994) and BTL EPC Ltd v. Macawber Beekay Pvt. Ltd (2023), the Court noted that judicial interference is permissible only when decisions are arbitrary, mala fide, or discriminatory.“.. in the instant case, the petitioners have failed to make out a case under the ambit of the above mentioned principles and in absence of any strong foundation of arbitrariness, irrationality, mala fide and bias”, the court remarked. Commenting on the argument of the petitioners that the descending age criterion for vehicles lacked rationale and was introduced to disqualify them the court noted that this criterion was applied uniformly and adhered to clause 26.5(c) of the NIT. Further the court pointed out that four of petitioner's vehicles were accepted under the same criterion hence indicating no prejudice.“Thus, the petitioners cannot blow hot and cold in the same breath as the petitioners are beneficiary of the said criteria and simultaneously, are estopped under law to raise any grouse, when the said criteria does not suit their eligibility, in absence of any prejudice being projected by the petitioners. Thus, it can safely be concluded that no prejudice has been caused to the petitioners”, the court said. Additionally, the referenced Meerut Development Authority v. Association of Management Studies (2009), which held that tender terms are generally non-justiciable unless proven to be deliberately exclusionary. The petitioners, having participated without prior objection, were deemed estopped from challenging the terms post facto, the bench reasoned. Expounding on the precedence of public interest over individual grievances the court cited Raunaq International Ltd v. I.V.R (1999) and held that public procurement processes aim to ensure transparency and efficiency, which must not be disrupted by individual disputes. Observing that the petitioners' claims lacked any substantive public interest dimension, Justice Nargal recorded, “.. this court is not convinced with the fact that public interest is at stake rather it is between the private participants of the bidding process and is private in nature, also with regard to the mala fide intention alleged against the respondents- Corporation since no person has been arrayed as party by name it cannot be borne that the respondents had the ill- intention against the petitioners”Spotlighting the principle of estoppel which squarely applied to the instant case the court further stated that participation in a tender implies acceptance of its terms, and subsequent challenges are untenable unless exceptional circumstances exist. “.. the petitioners at this stage are not allowed to challenge the terms and conditions of the tender since they have gladly and voluntarily participated in it and before or during the process they never agitated against the said terms and conditions which held them ineligible to be successful bidders. Therefore, the petitioners at this stage cannot challenge the terms and conditions of the tender notice being ineligible” underlined the court. In alignment with these observations the court found the petition devoid of any merit ...

Judicial Review Can Be Resorted To When Terms Of Invitation To Tender Are Alleged To Be "Tailor-Made" To Suit Certain Participants: J&K High Court

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