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Judgment
Mohammad Rafiq, CJ.
This writ petition has been filed by the petitioner with the prayer for issuance of a writ of mandamus to quash the Notice Inviting Tender (NIT)
dated 09.11.2020 (Annexure-2) issued by the opposite party No.3.
Heard Mr. S.N. Das, learned counsel for the petitioner and Mr. Prasanna Kumar Parhi, learned Assistant Solicitor General for the opposite parties-
Government of India.
The contention of learned counsel is that the petitioner is aggrieved by the decision of opposite party Nos.1 to 3 in introducing new norms and
making a Paradigm shift between the previous and the present Notice Inviting Tender in respect of the work ""Catering Services for Students,
Faculties and Staff at AIIMS, Bhubaneswar"", wherein the authority has incorporated Clause 13 in the impugned NIT with mala fide intention in order
to disqualify the petitioner.
It is further contended that the petitioner was the qualified lowest bidder in the last bid process for the year 2017 and since then it has been working as
such in the opposite party No.1-AIIM establishment. In 2017, the petitioner was awarded with the contract for providing catering service and it has
now also been providing. But in the present NIT, now the opposite parties have modified the conditions of having three years of experience ignoring
the contract of the petitioner. Therefore, the actions of the opposite parties are illegal, arbitrary and liable to be quashed.
Learned counsel for the petitioner has further submitted that the opposite parties have made certain discrepancies under Clause 13 of the NIT,
which deals with ""Tender Evaluation"". He referred to the contents of the similar clause of previous tender and submitted that as per that clause, only
such bidder who qualified in pre-qualification criteria, would be eligible for further evaluation. The committee formed by the Institute will visit at least
one site of each bidder and shall assign the marks, based on the parameters contained in Sl.No.1 to 5 of the said clause. In Sl.Nos.1 to 4, marks '10'
each was applicable and for Sl.No.5, mark '50' was applicable. It was provided in Clause 13.2 of the NIT of the previous year that the bidders who
get minimum 45 marks out of 50 in technical evaluation of their service facilities shall be qualified for next state of financial opening of bids. The
bidders who get less than 45 marks shall stand rejected from further process of bid evaluation and their financial bid shall not be opened.
Perusal of the NIT indicates that the criteria which was incorporated in the present tender under Clause 13 of the NIT, has now been incorporated
in the new tender notice in a different format, in shape of monthly feedback. As per Clause 1.1. of the present NIT, the duration of the contract shall
be initially for a period of one year from the date of award of contract and extendable upto one year on mutually agreeable terms and conditions. First
three months being on trial period and on satisfactory completion of the trial basis, the contract will be extended for remaining nine months of the year.
On satisfactory performance extension will be made for another one year. The performance would be evaluated on monthly basis of the parameters
indicated above. However, in case of any defaults or negligence under such contract, the canteen committee may suggest to the AIIMS,
Bhubaneswar to impose fine or penalty against the contractor or termination of the contract.
We do not find any illegality on the part of the opposite parties to issue the NIT under Annexure-2 by making a departure in the condition of the
tender from earlier year. Merely because the opposite parties have not retained condition the previous year tender in earlier format, this Court would
not be justified to interfere with the decision of the tendering authority. It is trite that this Court has limited jurisdiction to exercise its power of judicial
review with regard to examining the conditions of the contract. Reference in this connection may be made to celebrated decision of the Supreme
Court i.e. Tata Cellular vs. Union of India and others, reported in (1994) 6 SCC 651. Paras 70 & 71 of the reprint which contains the guidelines with
regard to power of judicial review, are reproduced hereunder:-
“70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent
arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the
guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always
available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There
can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to
be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or
political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by
judicial review.â€
In view of above discussion, we do not find any merit in the writ petition, which is liable to be dismissed.