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Judgment
Ajay Kumar Mittal, J.—Challenge in this petition filed under Articles 226/227 of the Constitution of India is to the order dated 11.4.2013, Annexure P. 11 passed by respondent No. 4 whereby tender of the petitioner-company has been dropped. Prayer has also been made for restraining the respondents from finalizing the fresh tenders invited through notice dated 7.4.2013, Annexure P.9. A few facts relevant for the decision of the controversy involved, as narrated in the petition, may be noticed. The petitioner-company is registered under the Companies Act, 1956 since 1997 and is providing man power i.e. house keeping and sanitation services to Government Hospitals and other Government organizations. It was allotted work for sanitation and house keeping at General Hospital, Sector 6, Panchkula for the period from 1.11.2009 to 31.3.2010. The hospital authorities being satisfied with the work of the petitioner-company extended the period for another one year i.e. 1.4.2010 to 31.3.2011. Similar extensions were given till 31.3.2013. In December 2012, the office of Principal Medical Officer, General Hospital, Panchkula floated tender in the newspaper for house keeping and cleaning services and for GDA/Ward servant. The petitioner applied in response to the said tender alongwith other companies. The bid regarding technical qualification was scrutinized at the first stage by the tender committee under the chairmanship of Principal Medical Officer/respondent No. 3. The tenders were opened on 28.1.2013 and vide letter dated 21.2.2013, respondent No. 3 intimated that no firm had qualified the technical bid and hence re-tendering was required. Accordingly, the price bid which was not opened and was in sealed cover, was returned intact. The earnest money was also returned. Thereafter, the respondent-authorities called for fresh tenders. The petitioner company applied for two services i.e. cleaning and sanitation and ward servant services. After technically qualifying, the petitioner-company was intimated on mobile for opening of the price bid of qualified bidders and the tenders were opened on 25.3.2013. The petitioner company was the lowest in both the items. It was verbally informed to the petitioner to start the contract w.e.f. 1.4.2013 for 45 days or upto allotment of the work to new service provider after fresh tender. Vide letter dated 5.4.2013, the petitioner-company requested the Principal Medical Officer/respondent No. 3 to supply reasons for cancelling both the tenders. The hospital authorities instead called for fresh tenders vide notice published in Hindustan Times dated 7.4.2013. As per notice, the last date for receipt of tenders was 29.4.2013. The petitioner sought information regarding the entire process of tenders under Right to Information Act, 2005 from State Public Information Officer, General Hospital Panchkula. But instead of supplying the said information, the petitioner received letter dated 11.4.2013 to the effect that the tenders had been dropped and accordingly earnest money was returned. Aggrieved thereby, the petitioner-company is before this Court through the instant writ petition.
Learned counsel for the petitioner submitted that the petitioner was the lowest tenderer and there was no justification to cancel the tender. Relying upon judgments of this Court in The New Kotkapura Truck Operators'' Union, Kotkapura v. Food Corporation of India, 1994(3) R.R.R.727 and M/s. J.S. Construction v. Post Graduate Institute of Medical Education and Research, Chandigarh and others, CWP No. 2044 of 2009 decided on 22.6.2009, it was urged that cancellation of the tender process vide Annexure P.11 was unsustainable.
After hearing learned counsel for the petitioner and perusing the record, we do not find any merit in the writ petition.
The question that arises for consideration herein relates to the determination of the nature of rights of a bidder who participates in the tender process.
A tender floated by an authority is an offer. The bidder in the tender process notifies its acceptance to the terms and conditions of the tender which must be unconditional and in proper form. The tenderer must be able and willing to perform his obligations. The terms of the invitation to tender are not open to judicial review as it falls within the realm of contract. However, limited judicial scrutiny is available in those cases where it is established that the terms of the invitation of tender were tailor made to suit the convenience of any person so as to eliminate all other participants in the bidding process. In other words, wherever terms of the tender are arbitrary, discriminatory or formulated with malafide intention to favour any prospective bidder, it shall be open to judicial scrutiny. The bidders participating in the tender process have no other right except the right of equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in pursuance to notice inviting tenders in a transparent manner and free from hidden agenda. No bidder is entitled to claim as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice provide for such negotiations. Till the time there is acceptance of the tender, no legal and enforceable right accrues in favour of the tenderer who submits an offer. The authority has absolute right to drop the tender at any time before right flows in favour of a party whose tender is accepted. In the present case, the offer made by the petitioner had not transformed into a valid and binding contract.
The judgment in New Kotkapura Truck Operators'' Union''s case (supra), relied upon by the petitioner was not relating to a case where the tender had been dropped before acceptance whereas the pronouncement in M/s. J.S. Construction''s case (supra) was based on individual facts and circumstances involved therein. Thus, no support can be drawn by the petitioner on the basis of these decisions. Finding no merit in the petition, the same is dismissed.