M/S Agmatel India Pvt. Ltd. v. M/S Resoursys Telecom & Ors.
DINESH MAHESHWARI, J.
Contents*
Preliminary .......................................................................................... 1
Relevant Factual Matrix and Background .......................................... 3
High Court disapproves the decision of tender inviting authority........ 7
Rival Submissions.............................................................................. 16
Interpretation of Tender Document: Relevant Principles ................. 23
Application of relevant principles to the case at hand ...................... 28
Conclusion......................................................................................... 44
Preliminary
Leave granted.
2. These two appeals against the same judgment and order dated
27.09.2021, as passed by the High Court of Delhi at New Delhi in Writ
Petition (C) No. 6676 of 2021, have been considered together and ar e
taken up for disposal by this common judgment.
2.1. By the impugned judgment and order dated 27.09.2021, the
High Court has accepted the writ petition filed by the respondent No. 1
of these appeals (M/s. Resoursys Telecom- hereinafter ref erred to as
‘the writ petitioner’) and has disapproved the technical disqualification
and consequential rejection of the technical bid of writ petitioner in respect
of a tender floated by the appellant of the appeal arising out of SLP(C)
No. 16672 of 2021 (Navodaya Vidyalaya Samiti – hereinafter referred
to as ‘NVS’). The appellant of the other appeal arising out of SLP(C)
No. 16671 of 2021 (Agmatel India Pvt. Ltd. – hereinafter referred to as
‘Agmatel’) is said to be the bidder whose offer was acce pted by NVS
after technically disqualifying the writ petitioner.
3. The crux of the matter involved in these two appeals is as to
whether the High Court has been justified in interfering wi th the view
taken by the tender inviting authority, i.e., NVS, in rejection of the 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?
*Ed. Note : Pagination in the contents is as per th e original Judgment.
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3.1. It may be observed at the outset that a contention had also
been urged, particularly on behalf of Agmatel, that the High Court of
Delhi had no jurisdiction to entertain the subject writ petition when all
the material events took place in the State of Uttar Pr adesh and when
the tender inviting authority was also in the State of Uttar Pradesh. The
High Court has rejected this objection with reference to th e fact that
such an objection was not taken by the tender inviting authority -NVS,
who was even otherwise operating under the Department of School
Education and Literacy, Ministry of Human Resources Developm ent,
New Delhi. This aspect has not been given much emphasis be fore us
and we would also leave it at that only, while dealing with the matter on
its merit.
4. It may also be observed that while considering these app eals
initially on 29.10.2021, we had considered it appropriate to take up the
matters for final hearing at the admission stage itself, particularly looking
to the object of the tender process in question, for that being related with
education of the children. However, in the circumstances of the case,
we had stayed the operation of the impugned order of the High Court
while providing that status quo in relation to the tender process in question
shall be maintained by all the concerned. After completion of pleadings,
we have heard learned counsel for the parties finally at the admission
stage.
5. After the foregoing preliminary comments, we may take note
of the factual aspects in brief, and insofar as releva nt for the issues at
hand.
Relevant Factual Matrix and Background
6. The dispute in the present appeals has its genesis in a N otice
Inviting Tenders (‘NIT’) bearing No. GEM/2021/b/1032762, as issued
by the appellant-NVS on 12.02.2021 on the Government online portal
i.e., Government e-market Place (‘GeM’) for supply of 68,940 Tablets
for school children. The NIT carried with it several of the terms and
conditions but, we are concerned in the present appeals with the terms
and conditions pertaining to ‘Experience’ and ‘Past Performance’ of the
bidders. The relevant terms and conditions may be extracted as under: -
“1. Experience Criteria: In respect of the filter a pplied for
experience criteria, the Bidder or its OEM {themselves or through
reseller(s)} should have regularly, manufactured and supplied same
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
or similar Category Products to any Central / State Go vt
Organization / PSU / Public Listed Compan y for number of
Financial years as indicated above in the bid document before the
bid opening date. Copies of relevant contracts to be subm itted
along with bid in support of having supplied some quantity during
each of the Financial year. In case of bunch bids, the category of
primary product having highest value should meet this criterion.
****** ***** ******
4. Past Performance: The Bidder or its OEM {themselves or
through re-seller(s)} should have supplied same or similar
Category Products for 80% of bid quantity 1, in at least one
of the last three Financial years before the bid opening dat e
to any Central/State Govt Organization / PSU / Public Listed
Company. Copies of relevant contracts (proving supply of
cumulative order quantity in anyone financial year) to be submitted
along with bid in support of quantity supplied in the releva nt
Financial year. In case of bunch bids, the category related to
primary product having highest bid value should meet this criterion.”
Bid Specific Additional Terms and Conditions
“****** ***** ******
3. The Bidder / OEM {themselves or through reseller(s)}, should
have executed project for supply and installation/ commissioning
of same or similar Category Products during preceding 3
financial years (i.e. current year and three previous financial years)
as on opening of bid, as per following criteria:
(i) Single order of at least 35% of estimated bid value; or
(ii) Two orders of at least 20% each of estimated bid value; or
(iii) Three orders of at least 15% each of estimated bid value.
****** ***** ******
14. Experience Criteria: The Bidder or its OEM
{themselves or through reseller(s)} should have regu larly,
manufactured and supplied same or similar Category Products
1 This quantity requirement of 80% was admittedly re duced to 60% by way of a
corrigendum issued by the tender inviting authority .
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to any Central/ State Govt Organization / PSU / Public Listed
Company for 3 years before the bid opening date. Copies of
relevant contracts to be submitted along with bid in sup port of
having supplied some quantity during each of the year. In case of
bunch bids, the primary product having highest value should meet
this criterion.”
(emphasis in bold supplied)
6.1. It is the requirement concerning “same or similar C ategory
Products” in the aforesaid conditions which forms the bone of contention
in these appeals.
7. The writ petitioner M/s. Resoursys Telecom responded to the
said NIT and offered its bid for the product i.e., “Tablet” which is being
manufactured by an Indian company namely, Lava International Limited,
after having necessary approvals from the manufacturer (OEM). After
opening the technical bids on 08.05.2021, the appellant-NVS re jected
the bid of the writ petitioner on 25.06.2021, while stating the reason of
rejection as ‘technical specification mismatch’. The writ petitioner felt
that the grounds for rejection were not discernible and the rejection was
vague and ambiguous; and, therefore, made a representat ion dated
27.06.2021 seeking clarification of the reason for rejection. The appellant-
NVS, in its reply dated 29.06.2021, inter alia, stated as under: -
“1. Does not qualify past Performance (Page 124) of te nder
document for any of the FY 2018-19, 2019-20, 2020-21. Work
Orders of Smart Phones, Laptops, Aadhar Kits, Printers, Power-
bank, etc are not considered as same or similar category products
of tablets.”
7.1. The writ petitioner M/s. Resoursys Telecom, as also the said
OEM Lava International Limited submitted further representations while
maintaining that they were duly complying with the Past Perfo rmance
clause of the tender document. The appellant-NVS stated in its response
dated 01.07.2021 that they were procuring “Tablets” for l earning
management and the Technical Evaluation Committee (‘TEC’) h as
considered only “Tablets” under similar category ‘to ensur e proven
products’.
8. At this juncture, we may take note of the facts emerging on
record that the writ petitioner, in order to assert its fulfilment of the above
referred Past Performance criterion, has relied upon the statements made
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
by its OEM in the letter dated 16.04.2021, wherein the supplies made in
the financial year 2019-2020 to Punjab Infotech, Directorate of Welfare
of Scheduled Castes-Assam, Directorate of Welfare of Plain Tribes &
Backward Classes–Assam, and Directorate of Women an d Child
Development Kerala were referred and it was also stated that they had
received the biggest purchase order of 1,75,443 units of “Smart Phones”
from Punjab Infotech and supplied the device successfully. We shall be
adverting to the relevant details of the said letter dat ed 16.04.2021
hereafter later, in the segment of discussion.
8.1. It has been the case of the appellants that in the aforesaid
supplies, only smart phones were supplied to Punjab Infotech and to the
Directorate of Women and Child Development, Kerala; and the product
“Smart Phone” does not fall within the description of “same or
similar Category Product” vis-à-vis the product required under
the NIT in question, i.e., “Tablet”.
9. Being aggrieved by the decision taken by the tender inviting
authority, the writ petitioner M/s. Resoursys Telecom preferred the writ
petition leading to these appeals with the submissions, inter alia, that
the process in question was vitiated due to an arbitrary and whimsical
decision taken by the tender inviting authority. During the pendency of
writ petition, it was informed by the tender inviting authorit y that the
contract in question had been awarded to the other bidder who wa s
found qualified and successful; and the application for impleadment made
by the said successful bidder-Agmatel was allowed by the High Court.
High Court disapproves the decision of tender inviting
authority
10. In essence, the submission of the writ petitioner b efore the
High Court was that a “Tablet” was an electronic product belonging to
the “same or similar category” as a “Smart Phone”; and that the decision
of the NVS, excluding “Smart Phones” from “same or similar Category
Products” was unreasonable and against the principles of fair play and
logic. On behalf of the writ petitioner, strong reliance wa s placed on
various tender notices issued by other departments and institu tions,
including the Electronic and Information Technology Departments of
the States of Kerala, Himachal Pradesh, Bihar and Meghala ya; and it
was submitted that in all such tender notices, the past experience of
supply of tablets and smart phones had been treated alike. On the other
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hand, it was submitted on behalf of the tender inviting authority -NVS
that the products like tablets, computers and smart phones were electronic
goods, distinguishable on the basis of their technical, commer cial and
trade- related definitions, norms, and regulations p rovided by the
authorities concerned. It was also argued that the tender inviting authority
was the best person to interpret the terms of tender, a nd its decision
could only be examined in case of it being arbitrary, biased or mala fide;
and no such case being alleged, no interference was called for. The
same contentions were urged on behalf of the impleaded party-Agmatel,
while also raising the objection of jurisdiction.
11. While dealing with the rival contentions, the High Court of
Delhi, after rejecting the contention on jurisdiction, formed the view that
the product “Smart Phone” was definitely a similar category product as
“Tablet”; and the tender inviting authority as also its TEC ha d been
unjustified in giving a restrictive meaning to the terms of NIT; and if at
all there was any ambiguity, the tender inviting authority cannot be left to
the option of interpreting the terms contrary to their plain meaning. The
High Court, therefore, proceeded to allow the writ petition and
disapproved the rejection of technical bid of the writ petitioner. It shall
be appropriate to summarise the relevant aspects of the r easons that
prevailed with the High Court in allowing the writ petition.
11.1. The High Court took note of the contentions that the tender
floating authority was the best judge to determine the co nditions of a
tender but, in that regard, referred to a passage from the decision of this
Court in the case of Reliance Energy & Anr. v. Maharasthra State
Road Development Corporation Ltd & Ors. : (2007) 8 SCC 1 to the
effect that in invitation to tenders, the terms and conditions must indicate
the norms and benchmarks with legal certainty; and if there b e any
vagueness and subjectivity in the said norms, it may resul t in unequal
and discriminatory treatment and violate the doctrine of “level playing
field”. The High Court, thereafter, observed that it was nobody ’s case
that “Smart Mobile Phones” were the “same” category pro ducts as
“Tablets”; and that the issue was as to whether under the terms of NIT,
“Smart Mobile Phones” could be called “similar Category Products” as
“Tablets”.
11.2. Thereafter, the High Court referred to the aforemen tioned
terms and conditions of NIT and opined that when the expression used
had been “category” before the word “product” and with the qualifying
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
expression “similar”, the intendment was not to exclude such products
which were of “similar category”; and the intention had not been to
insist only for “same” category products. Having thus minutely analysed
the expressions “same”, “similar” and “category” as also t he related
semantics, the High Court proceeded to indicate the perceived similarities
of the two products, i.e., “Smart Phones” and “Tablets” includi ng that
both were electronic products; were used for audio-visual rec eption/
transmission of data; were having facilities of running programmes and
applications; were sold and traded through the same channels and were
likely to be found in the same shop; and were being sold by the large
manufacturers and producers under the same brand. The High Court,
thus, concluded that even if the said two products were not the “same”,
it would not mean that they do not belong to “similar Cate gory of
Products”. The High Court further said that the interpretation prevalent
in the market, where these products were treated as falling in “similar”
category, was demonstrated by the writ petitioner with reference to five
tenders floated by different Governments/PSUs in different parts of the
country. Applying such test, the High Court concluded that NVS could
not have excluded the product “Smart Mobile Phones” from the “similar”
category vis-a-vis the product “Tablets”. According to the High Court,
the clause in question had been so worded as to provide maxi mum
competition. These observations and findings of the High Court, forming
the core of its decision, could be usefully reproduced as under: -
“29. From the above, it would be seen that the author of the tender
in question has consciously and repeatedly used the expression
“Category” before the word “Product”. Thus, the use o f the
expression “Category” is not inadvertent, or uninte ntional.
Secondly, the author has also repeatedly used the words “same or
similar” in relation to – not the product in question, but in relation
to the category of products to which “Tablet” belongs. The use of
the plural i.e. “Products”, and not “Product” also shows that t he
author was conscious that within the same or similar category of
products, there would be products other than “Tablets”. Pertinently,
the expression used is not “same products”, or even “same
Category Products”. It is “same or similar Category Products”.
Firstly, the use of the word “Category” shows that not just the
same product, but all products which fall in the same cate gory
which are covered. Thus, if the expression used would have been
“same Category Products”, other products which fall in the same
873
category – as a Tablet, would be covered. The respondents have
themselves enlisted other products which fall in the same category
of products, as Tablets. They are “ Slate tablets, Convertible
Tablets, Hybrid Tablets, Phablets, Rugged tablets, Tough
Tablets, Booklet, Microsoft Surface, Amazon Kindle Fire,
Surface Pro Tablet PC, iPad, iPad Air, iPad Pro, iPad Mi ni,
Samsung Galaxy Tab, and ThinkPad.” However, the respondent
NVS has further enlarged the scope, by using the express ion
“similar Category Products”. By using this expression, all products
which fall in similar categories – to the category in which Tablets
fall, are also covered. The expression “similar” does not mean
“same”. Therefore, a thing which is “similar” to another, wo uld
not be the same as that other. In the present context, the w ord
“similar Category” has to be understood in relation to the nature
and usage of the categories of products being compa red.
According to the Cambridge Dictionary, the word “same” means
“exactly like another or each other ”, whereas the word
“similar” means “looking or being almost, but not exactly, the
same”. Thus, if it was indeed the intent of the Respondent to
exclude similar category products, from the category of products
in which “Tablet” falls, they need not have used the words “same
or similar category products ”. They would have simply said
“same products”, or “same category products”
30. Both smart mobile phones, and Tablets, are electronic products.
Both are used for audio-visual reception/ transmission of data.
Both have facility of running programmes and applications t o
perform varied tasks, such as, receiving and sending message s/
e-mails, surfing internet, downloading content from the internet,
viewing audio-visual content, transmitting audio-visual and the like.
Both also have the facility to make audio calls through d ata
networks – though, mobile phones use the mobile call network for
regular calls. Both these products are sold and traded through the
same channels. In the same shop, which sells smart mobile phones,
one is likely to find Tablets, and vice versa. In fact, the l arger
manufacturers and producers of electronic goods produce and
sell both – smart mobile phones, and tablets under the same brand.
There are bound to be differences, since these two product s are
not “same”. They may not even belong to the “same category” of
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
products. However, merely because they are not “same”, it does
not mean that they do not belong to “similar category of products”.
31. The terms of tender must receive the natural and commonl y
understood interpretation, which has been prevalent in the trade.
What is prevalent in the trade has been demonstrated by the
petitioner – by reference to the 5 tenders floated by differ ent
Government/ PSUs in different parts of the country for same/
similar products.
32. Applying the said test, can it be said that the respondent NVS
could exclude smart mobile phones from the similar category of
products, as Tablets? The answer is an emphatic “No ”. The
Clause, intentionally, has been worded loosely in order to have
maximum competition amongst bidders.”
11.3. Thereafter, the High Court took note of the stand taken by
NVS in its reply dated 01.07.2021 and that taken in the counter affidavit
filed before the Court and observed that the TEC of NVS, on its own,
had decided to curtail the competition by narrowing the s cope of the
eligibility criteria by taking only tablets as falling under “similar” category
and not considering the past supplies of other products like smart mobile
phones, laptops etc. The High Court, however, observed that exclusion
of the products like Aadhaar kits, printers, power-banks et c. was not
being considered and the TEC might have been justified in not considering
them as falling under “similar” category products but, the TEC could not
have gone outside the scope of tender. The Court further observed that
in the counter affidavit, the averment had been to the e ffect that the
“Tablets” and “Smart Mobile Phones” were not of “same” product or
“similar” product but the criterion had been of “similar Category of
Products” and these words were not of surplusage. The High Co urt
disapproved the stance of NVS, as being not in conformity with open
competition and found it unacceptable in public interest. The High Court
observed and held thus: -
“36. Thus, it is evident to us that the Technical Ev aluation
Committee (TEC) of the respondent NVS, on its own decided to
curtail the competition by narrowing the scope of the eligibi lity
criteria, by consideration of only Tablets as falling under similar
category, and not to consider past supplies for other products like
smart phones, laptops, etc, which are covered under “ same or
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similar category products ”, as tablets. We are not concerned
with the exclusion of products like Aadhar kits, printers, power
bank, etc. in the facts and circumstances of the present c ase.
The TEC of the respondent NVS may have been justified in not
considering past experience/ turnover of supply of products like
aadhar kits, printers, power banks, etc., as falling under simi lar
category products, as that of the tablets. However, the TEC of
the respondent NVS could not have gone outside the scope o f
the tender to lay down its own criteria to determine the eligibility
of the bidders. They were bound to adhere to, and strictly comply
with the terms and conditions stipulated in the tender floated by
NVS. The decision taken by the TEC to exclude from consideration
all other similar category products – for the purpose of evaluating
past performance of the bidders, was wholly incompetent and
beyond the authority of the TEC.
37. From the counter affidavit, we also find that at various places,
the respondent has averred that Tablets and smart mobile phones
are not the same product, or similar product. It appears to us that
the respondent has forgotten the eligibility criteria set out i n the
NIT, which is, “ same or similar category products ”, and not
“same product” or even “ similar products.”
38. If that interpretation as given by the respondent NVS were to
be accepted, the word “similar category of products” becomes a
surplusage, which cannot be the intention attributed to the tender
framing authority.
39. To arbitrarily and whimsically change the goalpost, a nd
determine what can, and cannot, be considered a “similar product”,
at the time of evaluation of bids, disrupts the level play ing field
for bidders and extinguishes healthy competition. The respondents
have argued that smartphones and tablets are separate products,
and there can be no doubt about it. This is a no brainer. However,
they don’t say that these two products are not even falling under
two different similar categories of products.
40. The restrictive interpretation given by the respondent NVS to
the aforesaid tender conditions – not borne out from the tende r
terms and conditions, which would curb competition, does not find
favour with the Court, in Public Interest. The whole purpose of
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
issuing a tender is to invite maximum bids from bidders meeting
the technical qualification so that the employer/ tender fl oating
authority gets the most favourable product/services, at the mo st
competitive price.”
11.4. The High Court, thereafter, referred to a decision of this
Court in Nabha Power Ltd. v. Punjab SPCL: (2018) 11 SCC 508 for
application of the “five condition test” for an implied condition to be read
into the contract, including the “business efficacy test” and highlighted
the principles laid down by this Court that “implied term” was a concept
necessitated when the referred five conditions were satisfied and there
was a strict necessity for it. On that basis, the High Court observed that
NVS could have neither implied any term in the tender nor given restrictive
meaning to the clear language of the tender. The High Court, thereafter,
referred to the doctrine of ‘ Contra proferentem’, as referred to in the
case of United India Insurance Co. Ltd. v. Orient Treasures (P)
Ltd.: (2016) 3 SCC 49, whereby, any ambiguity in an insurance policy
would be resolved by a construction favourable to the insured. The High
Court observed and held that if at all there was an ambiguity, it would be
construed against the drafter of the tender; and in the absence of ambiguity,
the plain meaning of the condition must be complied with. Having said
so, the High Court observed that each and every word of a tender must
be given a meaning, for it being a serious exercise; and TEC cannot
evolve its own criteria to evaluate the eligibility of bidders, contrary to
the terms and conditions of the tender.
11.5. Before concluding on the matter, the High Court observed,
with reference to the decision of this Court in Tata Cellular v. Union of
India: (1994) 6 SCC 651 , that the tender floating authority was the
best person to interpret the terms of the tender but the said authority
cannot act arbitrarily, whimsically or contrary to the terms and conditions
of the tender. The High Court reiterated that in the first place, the terms
and conditions were clear and if at all they were ambiguous, it could not
be left to the option of tender floating authority to interpret it in a manner
which is contrary to their plain meaning. The High Court said thus: -
“47. We are conscious of the scope of judicial scrutiny in tender
matters. We are also conscious that the tender floating authority
is best person to interpret the terms of the tender, as they know
what best is the requirement and how to achieve the same. (se e
Tata Cellular v. UOI (1994) 6SCC 651) However, the authorities
877
cannot act arbitrarily, whimsically and contrary to the terms and
conditions of the tender. As noticed hereinabove, the terms and
conditions of the tender are clear. However, even if the terms of
the tender are unclear and ambiguous, can it be left to the option
of the tender floating authority to interpret it in a manner which is
contrary to their plain meaning? The answer is “No”.”
11.6. With the aforementioned reasons, findings and observations,
the High Court proceeded to allow the writ petition and held the rejection
of the technical bid of the writ petitioner as unreasonable and arbitrary,
while holding that “Smart Mobile Phones” fall in “simil ar Category
Products’. Accordingly, the High Court directed the appellant-NVS to
process the technical bid of the writ petitioner and thereafter proceed in
accordance with law.
11.7. Feeling aggrieved by the aforesaid judgment and order dated
27.09.2021, the tender inviting authority-NVS as also the bidder who is
declared successful-Agmatel have preferred these appeals.
Rival Submissions
12. Assailing the judgment and order so passed by the High Court,
learned Solicitor General of India appearing for the appellant-NVS has
referred to the facts that the tender notice in question w as issued for
supply of Tablets for the students of Class XI and XII, with specific past
performance criterion that the bidder or its OEM, themselves or through
resellers, ought to have supplied same or similar categor y products to
the extent of 80% of bid quantity (which was changed to 60% by
corrigendum) in at least one of the last three financial years before bid
opening date to any Central/State Government Organisation/PSU/Public
Listed Company; and when the technical bids were opened, the writ
petitioner was declared disqualified for having fallen s hort in past
performance criterion by 10.20%. In this regard, the learned S olicitor
General has particularly referred to the details stated in the additional
affidavit filed on behalf of the appellant-NVS. We shall refer to the
relevant part of these details too, in the segment of discussion.
12.1. The learned Solicitor General would argue that the writ
petitioner had erroneously added its past supplies towards “Smart Phones/
Mobile Handsets” and “Power Banks” so as to fulfil the past performance
criterion required for awarding the tender for “Tablets” and hence, such
supplies were not counted towards the requisite 60% of the bid quantity.
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
12.2. The learned Solicitor General has contended that “Sma rt
Phones” and “Tablets” are two different products and belong to different
categories and in this regard, has particularly referred to GeM portal of
the Ministry of Commerce and Industry, Government of India. It has
been submitted that on the said portal, “Smart Phones” and “T ablets”
have been placed in totally different categories inasmuch as “Tablets”
fall under the category “Computer Equipment and Accessories” within
sub-category “Computers” whereas “Smart Phones” fall u nder the
category “Communication Devices and Accessories” within sub-category
“Personal Communication Devices”. The “Smart Phones” also fall under
the category “Data Voice or Multimedia Network Equipment or Platforms
and Accessories” within sub- category “Digital Mobile Equipment and
Components”. With such categorisation, the learned Solicitor Gener al
would argue, the stand of the appellant-NVS is fortified tha t “Smart
Phones” do not fall under same or similar category products as “Tablets”.
It has further been argued that the terms were clear and none of the
participating bidder found any ambiguity therein and hence, provided the
requisite details of the supplies pertaining to “Tablets” only, except the
writ petitioner. There was neither any ambiguity nor anyone as ked for
any clarification including the writ petitioner and only request was for
reducing the past performance quantity from 80% to 40% whereup on,
the quantity was reduced by corrigendum to 60%. The contention, thus,
has been that everyone including the writ petitioner well understood the
requirement in the past performance criterion as being that of supply of
“Tablet” computers only.
12.3. It has further been submitted that the expressions “same” or
“similar” category products in the tender condition were obvious ly in
reference to different varieties and types of “Tablets”, like Slate Tablets,
Convertible Tablets, Hybrid Tablets, Phablets, Rugged Tablets, Tough
Tablets, Booklet, Microsoft Surface, Amazon Kindle Fire, Surface Pro
Tablet PC, iPad, iPad Air, iPad Pro, iPad Mini, Samsung Galax y Tab,
ThinkPad etc.
12.4. With reference to the decision of this Court in Afcons
Infrastructure Limited v. Nagpur Metro Rail Corporation Li mited
& Anr.: (2016) 16 SCC 818, the learned Solicitor General has argued
that author of the tender document is the best person to understand and
appreciate its requirements; and that the Courts must defe r to such
understanding and appreciation of tender documents by the tender inviting
879
authority, unless there be any allegation of mala fide or perversity. The
learned Solicitor General has particularly referred to the enunciation by
this Court that even if an interpretation to the tender doc ument by the
author of the tender is not acceptable to the Constitutional Court, that, by
itself, would not be a reason for interfering with the interpretation given.
12.5. It has further been contended that the threshold of mala fide
intention to favour someone or arbitrariness or irrationality or perversity
must be met before the Court would interfere with the decision-making
process or the decision itself. Even in the case of ambiguity or doubt, the
Court would be refraining from giving its own interpretation unless the
interpretation given by the administrative authority is shown to be perverse
or mala fide or intended to favour someone. The learned Solicitor General
has contended that there being no finding about any mala fide or perversity
or bias, the High Court has erred in interfering in the pr esent tender
process. It has been argued that even if the interpretati on of tender
document by the appellant was not found acceptable by the High Court,
that, by itself, was not a sufficient reason for interfer ence. It has also
been submitted that the interpretation of the appellant-NVS is based on
the pre-dominant purpose of the goods sought to be procured and no
arbitrariness or irrationality could be imputed therein.
12.6. In its written submissions, the appellant-NVS h as also
adverted to the other purchases/tenders referred by the writ p etitioner
in a tabular form; and has pointed out the distinguishing featur es. We
shall refer to the relevant contents of this table too he reafter later.
13. More or less similar submissions have been made by the learned
senior counsel appearing on behalf of the appellant-Agmatel (successful
bidder) while supplementing that the High Court has erred in going into
the technical evaluation of two products and their similarit y; and this
remains an impermissible area for judicial review, as held by this Court
in the case of Galaxy Transport Agencies v. New J K Roadways :
2020 SCC OnLine SC 1035 . The learned senior counsel has further
argued that the view taken by the tender inviting authority and its evaluation
committee remains a reasonable view that “Smart Phones” are not similar
to “Tablets”. In this regard, the learned senior counsel has, apart from
reiterating the categories specified on the online portal GeM, has also
referred to the classification of “Tablet” computers by the Central Board
of Excise and Customs under Section 151A of the Customs Act, 1950
while specifically noting that a “Tablet” computer is different from a
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
“Smart Phone”, as it is an automatic data processing machine classifiable
under the heading 847130 and not 8517. Learned senior counsel has
further referred to the fact that various other authorities have considered
“Tablet” computers as computing devices similar to Laptops, PCs etc.,
while taking “Mobile Phones” under a different category. Thus, according
to the learned senior counsel, there being a reasonable view t aken by
NVS and there being no mala fide or bias, there was no ca se for
interference by the High Court.
14. While countering the submissions so made on behalf of t he
appellants, the learned counsel for the contesting res pondent-writ
petitioner, has in the first place, submitted that its bid was rejected on
rather specious grounds inasmuch as even the reasons for rejection had
not been consistent, as noticeable from different stands take n in the
initial rejection dated 25.06.2021, in the clarification dated 29.06.2021, in
the other response dated 01.07.2021 and in the submissions made before
the High Court and this Court.
14.1. The main plank of the submissions of the learned counsel
for the writ petitioner has been that various similarly placed PSUs and
Government Agencies, in various tender documents, have used the terms
“Tablets” and “Smart Phones” rather interchangeably. In thi s regard,
the learned counsel has referred to the prescriptions in tender documents
by Meghalaya Information Technology Society, REC Power Distribution
Co. Ltd., Department of Education, Government of Bihar , and the
Himachal Pradesh State Electronics Development Corporation Ltd. The
learned counsel has further submitted that, wherever the tender inviting
authority wanted to restrict the past performance only to “Tablets”, the
same was stated in unambiguous terms and has referred to t he tender
documents issued by Keltron and the Government of Maharashtra. The
learned counsel has further submitted that not only tender i ssuing
authorities have interchangeably used the products “Tablets” and “Smart
Phones” but, even the utility based application issue d by various
Governments do not make any distinction between “Tablets” and “Smart
Phones”; and has referred to the Government portal e-pathshala which
provides for e-pub, an android based application, which is required for
tablets and smart phones alike whereas for laptops and desktops, it
provides for flip-book, which is a Windows based programme. I t has
also been pointed out that MSME, Kolkata has issued common training
programme for repair and working of smart phones and tablets.
881
14.2. With the aforesaid details and comparisons, it has been
contended on behalf of the writ petitioner that the interpretation sought
to be suggested by the tender inviting authority in the prese nt case is
entirely unreasonable and has rightly been interfered with by the High
Court. It has also been submitted that in the present case, the tender
inviting authority has attempted to exercise its discretion to suit a particular
bidder and to curb the competition on rather inconsistent grounds by
attempting to distinguish between otherwise identical pro ducts. It is
contended that when the tender inviting authority was conscious of the
terms stated in a particular manner, it cannot be permitte d to change
such terms by way of interpretation to suit a particular bidder or by
taking away the level playing field. The submission has been that “Smart
Phones” and “Tablets” are rather synonymous terms and the stand of
the appellants deserves to be disapproved.
14.3. It has also been submitted on behalf of the writ pe titioner
that in fact, it has been awarded another contract for supply of 3,00,000
tablets and it had been regularly supplying various electronic products,
including tablets.
14.4. Yet further, it has been submitted that a caution was sounded
by the Central Vigilance Commission (‘CVC’) to the effect that the terms
of tender must be clear and ascertainable with specifici ty; and post
facto interpretations must be avoided to bring in transparency in tendering
matters. Thus, the learned counsel has supported the order impug ned
and submitted that the appeals deserve to be dismissed.
15. We have given thoughtful consideration to the rival submissions
and have examined the record with reference to the law applicable.
Interpretation of Tender Document: Relevant Principles
16. The scope of judicial review in contractual matte rs, 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 3-Judge Bench decision of this Court in Galaxy
Transport Agency (supra) wherein, among others, the said decision in
Afcons Infrastructure Limited (supra) 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 bidder s, in the
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
tender floated for supply of vehicles for the carriage of t roops and
equipment. This Court referred to various decisions on the subject and
stated the legal principles as follows: -
“14. In a series of judgments, this Court has held that the
authority that authors the tender document is the b est
person to understand and appreciate its requirements, an d
thus, its interpretation should not be second-guessed by a
court in judicial review proceedings. In Afcons Infrastructure
Ltd. v. Nagpur Metro Rail Corporation Ltd. , (2016) 16 SCC
818, this Court held:
“15. We may add that the owner or the employer of a project,
having authored the tender documents, is the best person to
understand and appreciate its requirements and interpret its
documents . The constitutional courts must defer to this
understanding and appreciation of the tender documents, unless
there is mala fide or perversity in the understandi ng or
appreciation or in the application of the terms of the t ender
conditions. It is possible that the owner or employer of a
project may give an interpretation to the tender
documents that is not acceptable to the constitution al
courts but that by itself is not a reason for interfering
with the interpretation given .”
(page 825)
(emphasis supplied)
15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev
Prabha 2020 SCC OnLine SC 335, under the heading “Deference
to authority’s interpretation”, this Court stated:
“51. Lastly, we deem it necessary to deal with another
fundamental problem. It is obvious that Respondent No. 1 seeks
to only enforce terms of the NIT. Inherent in such exercise is
interpretation of contractual terms. However, it must be noted
that judicial interpretation of contractsin thesphereof commerce
stands on a distinct footing than while interpretingstatutes.
52. In the present facts, it is clear that BCCL and India ha ve
laid recourse to Clauses of the NIT, whether it be to just ify
condonation of delay of Respondent No. 6 in submitti ng
883
performance bank guarantees or their decision to resum e
auction on grounds of technical failure. BCCLhaving authored
these documents, is better placed to appreciate their
requirements and interpret them. (Afcons Infrastructure Ltd.
v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818)
53. The High Court ought to have deferred to this
understanding, unless it was patently perverse or mala fide.
Given how BCCL’s interpretation of these clauses was plausible
and not absurd, solely differences in opinion of contractu al
interpretation ought not to have been grounds for the High Court
to come to a finding that the appellant committed illegality.”
(emphasis supplied)
16. Further, in the recent judgment in Silppi Constructions
Contractors v. Union of India, 2019 SCC OnLine SC 1133, this
Court held as follows:
“20. The essence of the law laid down in the judgments referred
to above is the exercise of restraint and caution; the need for
overwhelming public interest to justify judicial intervention in
matters of contract involving the state instrumentalities; t he
courts should give way to the opinion of the experts unless the
decision is totally arbitrary or unreasonable; the court does not
sit like a court of appeal over the appropriate authorit y; the
court must realise that the authority floating the tender is the
best judge of its requirements and, therefore, the c ourt’s
interference should be minimal. Theauthority which floats the
contract or tender, and has authored the tender documents is
the best judge as to how the documents have to be interpreted.
If two interpretations are possible then the interpretation of
the author must be accepted. The courts will only interfere to
prevent arbitrariness, irrationality, bias, mala fides or perversity.
With this approach in mind we shall deal with the present case.”
(emphasis supplied)
17. In accordance with these judgments and noting that the
interpretation of the tendering authority in this case cannot b e
said to be a perverse one, the Division Bench ought not to have
interfered with it by giving its own interpretation and not giving
proper credence to the word “both” appearing in Condition No.
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
31 of the N.I.T. For this reason, the Division Bench’s conclusion
that JK Roadways was wrongly declared to be ineligible, is set
aside.
18. Insofar as Condition No. 27 of the N.I.T. prescribing work
experience of at least 5 years of not less than the value of Rs. 2
crores is concerned, suffice it to say that the expert bo dy, being
the Tender Opening Committee, consisting of four members, clearly
found that this eligibility condition had been satisfied by the
Appellant before us. Without therefore going into the
assessment of the documents that have been supplied t o
this Court, it is well settled that unless arbitrar iness or
mala fide on the part of the tendering authority is alleged,
the expert evaluation of a particular tender, particu larly
when it comes to technical evaluation, is not to be second-
guessed by a writ court . Thus, in Jagdish Mandal v. State of
Orissa, (2007) 14 SCC 517, this Court noted:
“22. Judicial review of administrative action is intended to
prevent arbitrariness, irrationality, unreasonableness, bias and
mala fides. Its purpose is to check whether choice or decision
is made “lawfully” and not to check whether choice or decision
is “sound”. When the power of judicial review is invoked in
matters relating to tenders or award of contracts, certain special
features should be borne in mind. A contract is a commercial
transaction. Evaluating tenders and awarding contracts are
essentially commercial functions. Principles of equity and
natural justice stay at a distance. If the decision relating to
award of contract is bona fide and is in public interest, courts
will not, in exercise of power of judicial review, interfere even
if a procedural aberration or error in assessment or prejudice
to a tenderer, is made out. The power of judicial review will
not be permitted to be invoked to protect private interest at the
cost of public interest, or to decide contractual disputes. The
tenderer or contractor with a grievance can always see k
damages in a civil court. Attempts by unsuccessful tenderers
with imaginary grievances, wounded pride and business rivalry,
to make mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade courts to
interfere by exercising power of judicial review, should b e
885
resisted. Such interferences, either interim or final, may hold
up public works for years, or delay relief and succour to
thousands and millions and may increase the project co st
manifold. Therefore, a court before interfering in tender or
contractual matters in exercise of power of judicial re view,
should pose to itself the following questions:
(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone;
or
Whether the process adopted or decision made is so arbitrary
and irrational that the court can say:“the decision is such that
no responsible authority acting reasonably and in accordance
with relevant law could have reached”;
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no
interference under Article 226. Cases involving blacklisting or
imposition of penal consequences on a tenderer/contractor or
distribution of State largesse (allotment of sites/shops, grant of
licences, dealerships and franchises) stand on a different footing
as they may require a higher degree of fairness in action.”
(pages 531-532)
(emphasis supplied)
19. Similarly, in Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC
272, this Court stated as follows:
“26. We respectfully concur with the aforesaid statement of
law. We have reasons to do so. In the present scenario, tenders
are floated and offers are invited for highly complex technical
subjects. It requires understanding and appreciation of the
nature of work and the purpose it is going to serve. It is
common knowledge in the competitive commercial field that
technical bids pursuant to the notice inviting tende rs are
scrutinised by the technical experts and sometimes third-party
assistance from those unconnected with the owner’s
organisation is taken. This ensures objectivity. Bi dder’s
expertise and technical capability and capacity must be assessed
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
by the experts. In the matters of financial assessm ent,
consultants are appointed. It is because to check and ascertain
that technical ability and the financial feasibility have sanguinity
and are workable and realistic. There is a multi-prong complex
approach; highly technical in nature. The tenders where public
largesse is put to auction stand on a different compartme nt.
Tender with which we are concerned, is not comparable to
any scheme for allotment. This arena which we have referred
requires technical expertise. Parameters applied are different.
Its aim is to achieve high degree of perfection in execution and
adherence to the time schedule. But, that does not mean, these
tenders will escape scrutiny of judicial review. Exercise of
power of judicial review would be called for if the approach is
arbitrary or mala fide or procedure adopted is meant to favour
one. The decision-making process should clearly show that
the said maladies are kept at bay. But where a decision is
taken that is manifestly in consonance with the language
of the tender document or subserves the purpose for
which the tender is floated, the court should follow the
principle of restraint. Technical evaluation or comparison
by the court would be impermissible. The principle that is
applied to scan and understand an ordinary instrument relatable
to contract in other spheres has to be treated differently than
interpreting and appreciating tender documents relating to
technical works and projects requiring special skills. The owner
should be allowed to carry out the purpose and there has to be
allowance of free play in the joints.”
(page 288)
20. This being the case, we are unable to fathom how the Division
Bench, on its own appraisal, arrived at the conclusion that the
Appellant held work experience of only 1 year, substituting the
appraisal of the expert four- member Tender Opening Committee
with its own.”
(Underlining emphasis in the original; emphasis in bold supplied)
17. The above-mentioned 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 inte rpretation is
887
manifestly in consonance with the language of the tender document or
subserving the purchase of the tender, the Court would p refer 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.
Application of relevant principles to the case at hand
18. Applying the aforesaid principles to the case at hand, we are
clearly of the view that the impugned order cannot be sustained.
19. In relation to the contention that the tender inviting authority
was the best judge to interpret the conditions of tender an d the Court
should not interfere, the High Court referred to an observation by this
Court in the case of Reliance Energy Ltd. (supra) that when tenders
are invited, terms and conditions must indicate norms and benchmarks
with legal certainty. In that case, the said observation s came in the
backdrop of the facts that in the eligibility conditions of the tender before
the Court, one of the criteria had been of the consortium net cash profit
of Rs. 200 crores but, the State had not specified the accounting norms
with clarity for calculation of net cash profit; and on e of the two
acceptable methods of calculation of net cash profit was not taken into
account without any reason. In the given facts, the decision of the
authority concerned was found to be arbitrary, whim sical and
unreasonable. The said decision in Reliance Energy Ltd. (supra) has
no direct application to the facts of the present case and even otherwise,
it has not been the finding of the High Court that the term stated by the
tender inviting authority-NVS was lacking in certainty. However, beyond
this, as to which particular product was to be treated as similar category
product, could not have been a matter of interpretative exercise b y the
Court, particularly when the view taken by the tender inviting authority
and its evaluation committee has not been shown to be absurd or irrational
or suffering from mala fide.
20. It has also rightly been pointed out by the appellants, wi th
reference to the decision in Afcons Infrastructure Limited (as extracted
in the quotation hereinabove), that an interpretation by owner or employer
of a project to the tender document may not be accepta ble to the
Constitutional Courts but that, by itself, would not be a rea son for
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
interfering with the interpretation given. In the aforesaid view of matter,
the long-drawn exercise by the High Court on the dictionary meaning of
the words and on semantics, in our view, had been entirely unnecessary.
21. The High Court has even proceeded to find the elements of
similarity between “Smart Phones” and “Tablets” ( vide paragraph 30
of the impugned order). The writ petitioner has also made el aborate
submissions to suggest that “Smart Phones” and “Tablets” are of similar
category. The respondents, per contra , have also made detailed
submissions that these two products are neither the same nor of similar
category. In our view, an elaborate and in-depth analysis of the features
and categorisation of these two products is not called for bu t, for the
reason that the High Court has adopted such a course, a few comments
on this aspect would also be apposite.
21.1. Even if some organisations/institutions, with reference to their
requirements or other relevant factors, had assumed these two products,
i.e., “Tablets” and “Smart Phones” akin to each other, the facts do remain
that these very products have been placed under different categories on
the online portal GeM and have also been taken as classifiable differently
by the customs authority. In the given set of facts and classifications, the
decision, as taken by NVS and its TEC, cannot be said to be suf fering
from irrationality, absurdity or mala fide. In our view, the analysis of the
writ Court needs to stop at that. Beyond this point, the writ Court
would not be substituting its preferred interpretation of the tender condition
with the one adopted by the author of the tender document and the
person procuring the product, who has to be regarded as the best person
to understand its requirements.
21.2. Putting it differently, neither the excessive analysis, as entered
into by the High Court, was required in this case nor we would be
evaluating all the specifications of these two products, namely, “Smart
Phones” and “Tablets”. Suffice it to notice for the present purpose that
even if both are electronic devices and even if several of their utility
features are the same or similar, their categorisation unde r different
headings is also a fact not unknown to the parties, as would appear from
the categorisation on the Government online portal itself. Beyond this
aspect, in our view, no adjudicatory process is called for and the
interpretation as put by the tender inviting authority-NVS does not deserve
interference. Similarly, if in some of the notice inviting t enders, both
smart phones and tablets were stated, or in some of the tenders, specific
889
product tablet alone was stated, that would also not be decisive because
that would, obviously, depend on the purpose for which the procurement
was being made; and the procuring party, i.e., the tender inviting authority,
ought to be extended the latitude to decide on its requirements.
22. In the same context, we may also deal with another feature of
this case related with the supplies made by the writ petitioner to different
organisations pursuant to different tender notices.
22.1. As noticed, the writ petitioner, in order to assert its fulfilment
of the above referred Past Performance criterion, has relie d upon the
statements made by its OEM in the letter dated 16.04.2021. That reads
as under: -
“PO details in FY 2019-20 (Single Year): Past Performance
Clause
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
We have even received the Biggest Purchase order of roun d
175443 Units of Smart phones by Punjab Infotech for Education
Purpose and supplied the device successfully. PO and Completion
Certificate is enclosed.”
22.2. In regard to the supplies shown by the writ petitioner, details
have been stated by the appellant-NVS in the additional affidavit in the
following terms: -
“3…..Quantity supplied by Ms. Lava International Ltd. (OEM of
respondent no. 1) during last 3 financial years before the bid
opening date are as under:
Sl.
No.
Financ
ial
Year
Device
Type
Quantity
Supplied
Page
Nos.
1 2020-
21
Tablets - -
Smartphones - -
Power banks - -
2 2019-
20
Tablets 3809 131
19047 132
14285 133
Total 37141
Smartphones 175443 127
27550 136
8885 143
Total 211878
Power banks 27550 136
8885 143
Total 36435
3 2018-
19
Tablets 3809 135
3809 135
Total 7618
Smartphones 1598 120
4418 121
Total 6016
Power banks - -
4. I submit that the Committee for Technical Evaluation had opened
the bids on 12.05.2021 and, after scrutinizing the documents
submitted by Respondent No. 1 with regard to past performance
mentioned at clause 4 of bid document found that Power banks
and Smart Phones could not be considered as “same or similar
category products” and, only work orders for Tablets could be
considered as per the clause 4 of the bid document. Further i t
was found that the data and documents provided by the Respondent
891
No. 1 for the three Financial Years viz., FY 2018-19, 2019-20 and
2020-21, maximum quantities of Tablets supplied by the Respondent
No. 1 were in the FY 2019-20 i.e. 37141 nos. which was short by
10.20% of the 60% criterion [60% of 68490 = 41364] for satisfying
the past performance clause 4 of the bid document.
5. I submit that due to shortfall of 10.2% of the required quantity
of same or similar category products as per past perform ance
clause, the Respondent No. 1 was declared disqualified in technical
bid.”
22.3. The writ petitioner has also referred to the s everal such
contracts where both the products, tablets and smart phones, have been
procured simultaneously while suggesting that these terms have e ven
been used interchangeably. On the other hand, the appellant-NVS has
stated in detail that the supplies of Tablets by the writ petitioner fell short
by 10.20% to 60% criterion and the writ petitioner was, in fact, largely
supplying smart phones and not tablets. As regards the organis ations
and their tender processes referred by the writ peti tioner, various
comments have been offered by the appellant-NVS in a tabular form;
the relevant parts thereof read as under: -
“Purchases/Tenders referred by Resoursys Telecom thr ough
its WP no. 6676/2021 and additional affidavit filed therein
Purchaser Purpose &
Objectives
Claim
through the
WP
Reply of NVS
HP State
Electronics
Development
Corporation
Ltd. (for
Rate Contract
for
procurement
of android
based
HP State
Electronics
Development
Corp had
placed
**Since, the
referred tender
was itself for
smartphones,
hence no
Himachal
Pradesh
Govt.)
smartphones smartphones
& Tablets at
par in the e-
tender
documents
compatibility
and relevance
with the subject
matter which is
the bid process
of Tablet
Computers.
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
893M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
895M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
**In all aforesaid purchases referred by the respondents Resoursys
Telecom, incomplete documents are attached with the Writ an d
additional affidavit.
**NVS in its bid documents specifically mentioned that Tender is
floated for Tablet Computers only.
**NVS has floated the bid through the GeM portal.
**No prospective bidders raised any query regarding inclusion of
smartphones under similar category. Only OEM of the R-1 i.e .
Ms. Lava OEM has requested to reduce the past performance
from 80% to 40% and technical committee has considered the
request of the Ms. Lava positively and reduced the requirement
of past performance from 80% to 60%.
**There is not a single case where bid condition is same a nd
smartphones added in the similar category products.
**Referred purchases consists different clause and pu rposes,
hence, the same are not squarly covered in the instant case i .e.
tender floated by the NVS for Tablet Computer only wherein
specifically mentioned under clause 4 of past performance tha t
the experience under same or similar category will be considered.
**In the aforesaid purchase referred by the respondent, no matter
on GeM wherein smartphones is considered under same or similar
category of Tablet Computer unless specifically and unequivocally
mentioned to this effect. It axiomatically demonstrates tha t the
Smartphones are not comes under the purview of same or similar
category of Tablet Computers.”
22.4. The aforesaid submissions on facts make this much clear
that the decision, as taken by the appellant-NVS and its TEC, cannot be
said to be totally baseless or absurd or irrational or illogical. It gets
perforce reiterated that even if some of the organisations, in relation to
their requirements, procured tablets and smart phones both under the
same tender process or even used these expressions “interchangeably”
or “interconnected”, that by itself cannot lead to a definite conclusion by
the Court that “Smart Phones” and “Tablets” are to be taken as similar
category products for the tender process in question.
897
23. Viewed from any angle, interference by the High Court in this
matter does not appear justified, particularly when no case of mala fide
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 r equired 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 consis tent
binding decisions of this Court, including the 3-Judge Bench decision in
Galaxy Transport (supra).
24. The High Court, while supporting its process of reasoning, has
referred to such principles which, with respect, we find entirely inapposite
and beyond the periphery of the question involved in the present c ase.
As noticed, in such matter of contracts, the process of interpretation of
terms and conditions is essentially left to the author of the tender document
and the occasion for interference by the Court would arise only if the
questioned decision fails on the salutary tests laid down and settled by
this Court in consistent decisions, namely, irrationality or unreasonableness
or bias or procedural impropriety.
24.1. In the case of Nabha Power Limited (supra), as referred
by the High Court, this Court, while referring to the concept of ‘Penta
test’ for ‘business efficacy’, made it clear that such a test and thereby
reading an “implied term”, would come in play only when the fi ve
conditions are satisfied. Even in that case, the Court, while dealing with
the question of reimbursement of cost incurred by the successful bidder/
power supplier towards washing of coal in a power procurement project,
analysed as to what charges would be payable by interpr etation of all
the terms of the contract and held the appellant entitled to certain charges
as the formula for energy charges was clear. In the pres ent case too,
neither the High Court was reading any “implied term” i n the past
performance criterion nor NVS had done so. It is difficult to find any
correlation of the decision in Nabha Power Limited (supra) to the case
at hand or even to the analysis by the High Court.
24.2. The same aspects apply to the observations regarding ‘contra
proferentem rule’ as referred by the High Court with reference to the
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS . [DINESH MAHESHWARI, J.]
case of United India Insurance Company Limited (supra). The said
rule was referred by this Court while not accepting the argument made
on behalf of the insured and while observing that the said rule had no
application, when the language of the relevant clauses was plain, clear
and unambiguous. We may, however, observe that even from the
e xtra cte d pa rt of the principles re la ted with the ‘contra proferentem
rule’, as reproduced by this Court from the Halsbury’s Laws of England,
it is clear that the said rule was applied in the case of ambiguit y in the
insurance policy because the policies are made by the in surer and its
ambiguity cannot be allowed to operate against the insured. This rule, in
our view, 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. The obvious inapplicability of this
doctrine to the eligibility conditions in a notice inviting tender could be
visualised from a simple fact that in case of ambiguity, if two different
tenderers suggest two different interpretations, the question would always
remain as to which of the two interpretation is to be accepted? Obviously,
to avoid such unworkable scenarios, the principle is that the aut hor of
the tender document is the best person to interpret its doc uments and
requirements. The only requirement of law, for such process of decision-
making by the tender inviting authority, is that it should not be suffering
from illegality, irrationality, mala fide, perversity, or procedural impropriety.
No such case being made out, the decision of the tender inviting authority
(NVS) in the present case was not required to be interfered with on the
reasoning that according to the writ Court, the product “Smart Phone”
ought to be taken as being of similar category as the product “Tablet”.
25. It has also been argued on behalf of the writ petitioner that the
reasons for rejection by NVS have not been consistent. We are un able
to find any inconsistency in the reasons assigned by the appellant-NVS
in rejection of the bid of the writ petitioner. In the initial information, only
this much was stated that there was a mismatch of technical specification
but, when required further by the writ petitioner, the appella nt-NVS
elaborated, in its reply dated 29.06.2021, on the fact that the work orders
concerning smart phones, laptops, Aadhaar kits, printers, power-banks
were not considered to be as same or similar category products to t hat
of tablets. Yet further, the representations made by the wr it petitioner
and its OEM were responded with the assertion that th e TEC had
899
considered only “Tablets” under similar category to ensur e proven
products. Same has been the stand of NVS before the High Court and
before us. Mere elaboration by the tender inviting authority as r egards
its reasons and basis of the decision cannot be said to b e that of any
inconsistency.
26. We may also observe that the other submission made on behalf
of the writ petitioner about the caution sounded by CVC that the terms
of tender must be clear and post facto interpretations must be avoided
to bring in transparency in the tendering matters, carry no implication in
the facts of the present case. The terms of tender in the p resent case
had been clear, and they were ascertainable with specificity available on
the very portal on which NIT was issued. It had not been a case of post
facto interpretations by the tender inviting authority-NVS. C ertain
suggestions made on behalf of the writ petitioner about the tender inviting
authority changing the terms to suit a particular bidder remain baseless.
No such case of mala fide has been made out; rather, as pointed out on
behalf of the appellant, all the other tenderers clearly unde rstood the
meaning and requirement of the past performance criterion a nd stated
the particulars of tablets supplied by them in the past. Such contentions
of the writ petitioner have only been noted to be rejected.
27. Similarly, the submission made on behalf of the writ petitioner,
that it had been awarded another contract for supply of 3,00,000 tablets,
carries no meaning at all. Such a supply contract had not been a matter
of evaluation in the tender process in question, where the quantity in the
last three financial years before the bid opening date was to be considered.
Any subsequent event could neither invest the writ petitioner with any
right in the present matter nor the impugned order could be sustained on
that basis.
Conclusion
28. For what has discussed hereinabove, we are clearly of the
view that the petition filed by the writ petitioner was required to be
dismissed. The High Court having allowed the writ petition on rather
irrelevant considerations, the impugned order is required to be set aside
29. Consequently, these appeals succeed and are allowed; th e
impugned judgment and order dated 27.09.2021 is set aside; Writ Petition
M/s AGMATEL INDIA PVT. LTD. v. M/s RESOURSYS
TELECOM & ORS. [DINESH MAHESHWARI, J.]
(C) No. 6676 of 2021, as filed by the writ petitioner, is dismissed with no
order as to costs.
Ankit Gyan and Amarendra Kumar Appeals allowed.
(Assisted by : Pragya Samal, LCRA)