Document Fragment View

Matching Fragments

"5. We have heard learned counsel for the respective parties at length.
At the outset, it is required to be noted that respondent No.1 claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in https://www.mhc.tn.gov.in/judis W.P.Nos.5965 of 2020, 5970 of 2020, 31065 of 2019 and 31068 of 2019 the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that the writ petition before the High Court was not in the nature of Public Interest Litigation. In that view of the matter, it is not appreciable how respondent No.1 - original writ petitioner being an NGO would have any locus standi to maintain the writ petition challenging the tender conditions in the respective RFPs. Respondent No.1 cannot be said to be an"

original writ petitioner to maintain the writ petition.

6. Even otherwise, even on merits also, the High Court has erred in quashing and setting aside the eligibility criteria/tender conditions mentioned in the respective RFPs, while exercising the powers https://www.mhc.tn.gov.in/judis W.P.Nos.5965 of 2020, 5970 of 2020, 31065 of 2019 and 31068 of 2019 under Article 226 of the Constitution of India. As per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide. As per the settled position of law, the terms of the Invitation to Tender are not open to judicial scrutiny, the same being in the realm of contract. The Government/tenderer/tender making authority must have a free hand in setting the terms of the tender.

...
...
...
28. As far as law relating to tenders is concerned, the narrow scope for judicial review of tender conditions is well settled. In essence, the court can https://www.mhc.tn.gov.in/judis W.P.Nos.5965 of 2020, 5970 of 2020, 31065 of 2019 and 31068 of 2019 only interfere in policy decision if they are arbitrary, discriminatory or malafide and not otherwise. On analysing the aforesaid decisions it is evident that unless administrative action of State is against public interest, is arbitrary and malafide, the courts ought not to interfere in matters of commercial contracts. In many cases, the court would not have expertise to review administrative decisions and the court cannot risk to substitute its own decision. The court should also bear in mind that interfering with the decisions in the matter of award of contracts by the State would also impose heavy administrative burden, and therefore, the court should be cautious and reluctant to interfere with such decisions. The court should also note that a person who willing participated in tender process had no right to challenge the tender conditions especially after undertaking in writing to comply with the tender terms. "
“5.1 Now so far as the impugned Judgment and order passed by the High Court dismissing the writ petitions is concerned, what was challenged before the High Court was one of the tender conditions/clauses. The High Court has specifically observed and noted the justification for providing clause 1.12(V). The said clause was to be applied to all the tenderers/bidders. It cannot be said that such clause was a tailor made to suit a particular bidder. It was applicable to all. Owner should always have the freedom to provide the eligibility criteria and/or the terms and conditions of the bid unless it is found to be arbitrary, mala fide and/or tailor made. The https://www.mhc.tn.gov.in/judis W.P.Nos.5965 of 2020, 5970 of 2020, 31065 of 2019 and 31068 of 2019 bidder/tenderer cannot be permitted to challenge the bid condition/clause which might not suit him and/or convenient to him. As per the settled proposition of law as such it is an offer to the prospective bidder/tenderer to compete and submit the tender considering the terms and conditions mentioned in the tender document.