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(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 fundamental right to carry on business with the Government.”

5. One other aspect examined by this Court is whether the terms and conditions of the tender have been tailor-made to suit a person/entity. In fact, this is what is sought to be contended in the facts of the present case by the respondents who were the original petitioners before the Court. In order to award a contract to a particular party, a reverse engineering process is evolved to achieve that objective by making the tender conditions such that only one party may fit the bill. Such an endeavour has been categorized as “Decision Oriented Systematic Analysis” (for short ‘DOSA’).4

(2016) 16 SCC 818.

“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 understanding or appreciation or in the application of the terms of the tender 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 constitutional courts but that by itself is not a reason for interfering with the interpretation given.”

14. The other aspect was the grievance made about the technical requirement of a “Hidden Text on Colour Change Background” feature stated to be based on a patented technology. Holograms with this feature were supplied to other public sector undertakings such as the IRCTC in the past by the suppliers other than Uflex and Montage. However, those suppliers had never supplied to any State excise department and, thus, could not meet the two conditions cumulatively. Montage and Uflex were alleged to be the only two bidders who would qualify under the existent tender conditions as they held the license to use the patented technology. The writ petition was resisted by the State inter alia on the ground of bona fide exercise and the factum of a clarification being issued on 27.10.2020 on the objections of Kumbhat and Alpha, petition having been filed even without waiting for the clarification to be issued. Corrigendum 2 to the tender conditions was issued whereby the condition as to the identification of hidden text by special Polaroid identifier was relaxed by providing that in addition to Polaroid identifier, the hidden text could also be identified by film. The grievance about only limited companies being permitted to participate was also met by permitting LLPs to participate in the tender.

48. We have also noticed the submissions based on the fact that repeated endeavours of Alpha and Kumbhat have failed not only before the Madras High Court but before different High Courts based on a similar challenge. Broadly, similar tender conditions have been upheld. It cannot be that every time a tender is floated, Kumbhat and Alpha would be permitted to seek a toehold on one pretext or the other. As noticed, it is not really the function of the Court to vet the terms of the NIT, as it is the decision-making process which can be reviewed in judicial scrutiny.27