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Noting that the technical evaluation or comparison of a tender document by the Court is impermissible, the Supreme Court recently observed that 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.

The court noted that as per the law laid down, it was amply clear that the author of 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.

An appeal was filed against an order of the Delhi High Court whereby it had accepted the writ petition filed by M/s. Resoursys Telecom and had disapproved the technical disqualification and consequential rejection of their technical bid in respect of a tender floated by the appellant Navodaya Vidyalaya Samiti (NVS).

A question was thus posed before the top court, i.e., whether the High Court has been justified in interfering with 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?

Agmatel India Pvt. Ltd., the bidder whose offer was accepted by NVS after technically disqualifying the writ petitioner had also approached the top court by way of appeal.

The top court referred to its 3-Judge Bench decision in Galaxy Transport Agencies v. New J K Roadways wherein, among others, the said decision in Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr. was also considered; and the top Court had 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.

The dispute in the present appeals finds its genesis in a Notice Inviting Tenders as issued by NVS on the Government online portal i.e., Government e-market Place (‘GeM’) for supply of 68,940 Tablets for school children.

It was found that an elaborate and in-depth analysis of the features and categorisation of “Smart Phones” and “Tablets” was not called for but, for the reason that the High Court adopted such a course, the court held,

"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 suffering from irrationality, absurdity or mala fide."

A bench of Justices Dinesh Maheshwari and Vikram Nath held that the analysis of the writ Court needed to stop as 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.

"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 3-Judge Bench decision in Galaxy Transport...", said the court while allowing the appeal and setting aside the impugned order.

Cause Title: M/s AGMATEL INDIA PVT. LTD. v M/s RESOURSYS TELECOM & ORS.