Technical evaluation or comparison of Tender by Writ Court is impermissible: SC

Read Judgment: M/s Agmatel India Pvt. Ltd. V. M/s Resoursys Telecom & Ors. 

Pankaj Bajpai

New Delhi, February 1, 2022: The Supreme Court has opined that the author of the 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. 

A Division Bench of Justice Dinesh Maheshwari and Justice Vikram Nath further observed that the technical evaluation or comparison of the tender 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. 

The observation came pursuant to an appeal challenging the judgment, whereby the High Court has disapproved the technical disqualification and consequential rejection of the technical bid of Resoursys Telecom (Respondent) in respect of a tender floated by Navodaya Vidyalaya Samiti (NVS), wherein Agmatel’s (Appellant – bidder) offer was accepted by NVS after technically disqualifying the Respondent. The High Court has disapproved the tender inviting authority, i.e., NVS, in rejection of the technical bid of Respondent for want of fulfillment 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. 

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

After considering the submissions, the Top Court noted that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. 

Further to that, decision, as taken by the NVS and its TEC, cannot be said to be totally baseless or absurd or irrational or illogical, and it gets perforce reiterated that even if some of the organizations, 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, added the Court. 

Speaking for the Bench, Justice Maheshwari observed that 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 terms of tender in the present 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. Certain 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 understood the meaning and requirement of the past performance criterion and stated the particulars of tablets supplied by them in the past”, noted the Bench. 

Hence, the Apex Court allowed the appeal and quashed the judgment of the High Court.