Rashtriya Nirbal Uthan Sansthan And Anr vs State Of N.C.T Of Delhi And Ors

Anil Kshetarpal, J

Through the present batch of Writ Petitions filed under Article 226 of the Constitution of India, the Petitioners challenge the final Selection List dated 20.02.2023 [hereinafter referred to as 'Impugned Selection List'] published vide communication issued by the Department of Women and Child Development, Government of NCT of Delhi ('GNCTD') [hereinafter referred to as 'the Department'], whereby they were excluded from the Impugned Selection List prepared pursuant to Expression of Interest('EOI')bearing Tender ID No.2022/DWCD/226507/1 dated 21.07.2022 for supply and distribution of Supplementary Nutritional Food.

The grievance of the Petitioners primarily is that despite qualifying the technical evaluation stage and meeting the prescribed eligibility criteria, they were excluded at a later stage on the basis of a presentation process allegedly not envisaged under the EOI and applied in a non-transparent manner, resulting in arbitrary exclusion and alleged favouritism in the final selection. The Petitioners also seek quashing of the Impugned Selection List and consequential directions for initiation of a fresh selection process.

The issues that arise for consideration are whether the adoption of a presentation-based assessment after technical evaluation was consistent with the EOI framework and whether the Petitioners'exclusion from the Impugned Selection List is arbitrary or violative of Article 14 of the Constitution of India and warrants interference in exercise of judicial review governing public tenders.

FACTUAL MATRIX:

In order to appreciate the controversy involved in the present batch of petitions, the relevant facts, in brief, are required to be noticed.

The Department issued the aforesaid EOI inviting eligible Non- Governmental Organisations ('NGOs')/Non-Profit Organisations ('NPOs') for supply and distribution of Supplementary Nutritional Food, namely Take Home Ration ('THR') and Hot Cooked Meal ('HCM'), under the Saksham Anganwadi and Poshan 2.0 Scheme across Anganwadi Centres in Delhi. The EOI contemplated evaluation of applicant organisations on the basis of prescribed eligibility and technical parameters for award of projects under the welfare scheme.

The Petitioners, claiming to be registered organisations possessing substantial experience in implementation of nutrition supply programmes and operation of centralized kitchens, submitted their applications pursuant to the said EOI along with supporting documents demonstrating compliance with eligibility requirements. According to the Petitioners, they fulfilled the prescribed criteria and secured qualifying marks in the technical evaluation, which carried a weightage of 70 marks under the evaluation framework.

Upon completion of the technical scrutiny undertaken by an internal evaluation committee, presentations were conducted for evaluation of capacity, preparedness and operational modalities of participating organisations, as stated by the Respondents. This stage, carrying a weightage of 30 marks, was conducted virtually before a higher-level committee constituted by the Department, which included an external member nominated by the Chief Secretary, GNCTD. The recommendations of the committees culminated in issuance of the Impugned Selection List publishing the list of eleven organisations selected for award of projects covering ninety-five projects and multiple Anganwadi Centres across different districts of Delhi. The Petitioners, despite having qualified the technical evaluation stage, were not included in the Impugned Selection List.

The Petitioners contend that the presentation component, introduced after technical evaluation, effectively became determinative of the final outcome, though the EOI contemplated technical evaluation as the primary basis for selection. It is alleged that the presentations were conducted virtually in lieu of physical inspection of kitchen facilities and that the marks awarded in the presentation stage were not disclosed to participants. The Petitioners further allege that certain selected organisations were awarded multiple projects despite allegedly lacking comparable experience or infrastructure, whereas organisations which had secured qualifying technical scores were excluded from final selection.

Aggrieved by their non-selection, the Petitioners submitted representations to the Department questioning the selection process and seeking reconsideration of their cases. Some of the Petitioners were thereafter issued Letters of Intent without allocation of specific projects, which, according to them, did not redress their grievance.

Being dissatisfied with the outcome of the selection process and alleging irregularities therein, the Petitioners have approached this Court by way of the present writ petitions seeking judicial review of the Impugned Selection List and the EOI process undertaken by the Department.

In the aforesaid factual backdrop, the rival submissions advanced on behalf of the parties fall for consideration.

CONTENTIONS OF THE PARTIES:

Heard learned Counsel representing the parties at length and perused the material placed on record.

Learned Counsel for the Petitioners, in essence, submitted as follows:

i. The Petitioners had secured qualifying marks in the technical evaluation stage carrying 70 marks, however, they were excluded from the Impugned Selection List without disclosure of objective reasons.

ii. A presentation-based evaluation carrying 30 marks was introduced after completion of technical evaluation and treated as determinative of selection, despite technical evaluation being the primary criterion under the EOI. The presentations were conducted virtually instead of physical inspection of kitchens and infrastructure, and the marks awarded therein were not disclosed.

iii. The Impugned Selection List was issued beyond the prescribed 120-day validity period of the EOI, rendering the process invalid.

iv. Certain selected organisations lacked requisite experience or infrastructure and were allotted disproportionate number of projects, reflecting arbitrariness and unequal treatment in violation of Article 14 of the Constitution of India.

v. Despite representations submitted by the Petitioners, no effective consideration was granted, and issuance of Letters of Intent without allocation of projects is an illusory relief.

Per contra, learned Counsel for the Respondents submitted as follows:

i. The EOI process involved a multi-tier evaluation undertaken by duly constituted committees, and inclusion of presentation assessment formed part of evaluating capacity and preparedness of applicant organisations.

ii. The competent authority approved the final recommendations after due evaluation, and all participants were assessed uniformly in accordance with administrative requirements of the scheme.

iii. Judicial review in tender matters is limited, and this Court ought not to re-assess comparative merits or substitute its view for that of expert bodies.

iv. The allegations of arbitrariness, favouritism or illegality are denied, it being submitted that allocation of projects was based solely on assessed capability and operational readiness.

No other submissions were urged on behalf of the parties.

ANALYSIS AND FINDINGS:

Before examining the rival contentions on merits, it is necessary to delineate the scope of judicial review in matters relating to public tenders and award of contracts.

The contours of judicial intervention in contractual and tender matters stand authoritatively settled by the decision of the Supreme Court in Tata Cellular v. Union of India (1994) 6 SCC 651. The Supreme Court emphasised that judicial restraint is the governing principle in administrative decision-making and that the Court does not sit as an appellate authority over administrative choices. The role of the Court is confined to examining the decision-making process and not the merits of the decision itself. The State, while exercising contractual powers, must be afforded necessary "play in the joints", subject only to the requirement that the decision be free from arbitrariness, mala fides, bias or irrationality.

The principle has been consistently reiterated that evaluation of bids involves qualitative assessment by expert bodies possessing technical and administrative expertise which courts ordinarily lack. Interference merely because another view is possible would amount to substitution of judicial opinion for administrative wisdom, an approach impermissible under Article 226.

Equally, however, judicial restraint does not imply judicial abdication. In Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd. (2007) 8 SCC 1, the Supreme Court underscored that Article 14 permeates even contractual dealings of the State. Tender conditions and evaluation norms must exhibit legal certainty, transparency and a level playing field, so that similarly situated bidders compete on equal terms. Vagueness, undisclosed criteria or shifting benchmarks may invite judicial correction where they result in discriminatory treatment.

The balance between administrative freedom and constitutional fairness was further explained in Monarch Infrastructure (P) Ltd. v. Ulhasnagar Municipal Corporation (2000) 5 SCC 287, wherein it was held that though the Government enjoys freedom of contract, it cannot alter essential conditions after participants have entered the arena in a manner that changes the rules of competition.

The governing test was succinctly crystallised in Jagdish Mandal v. State of Orissa (2007) 14 SCC 517, where the Supreme Court held that courts must ask:

i. Whether the decision is mala fide or intended to favour someone;

ii. Whether the process is so arbitrary that no reasonable authority would adopt it; and

iii. Whether public interest suffers.

Unless these conditions are satisfied, interference under Article 226 is unwarranted.

Guided by the aforesaid principles, this Court proceeds to examine whether the impugned selection process suffers from illegality, irrationality or procedural impropriety.

The principal grievance of the Petitioners is that after completion of technical evaluation carrying 70 marks, the Department introduced a presentation-based assessment carrying 30 marks, which according to them was neither envisaged under the EOI nor applied transparently.

A perusal of the EOI documents placed on record indicates that the selection process contemplated assessment of applicant organisations not merely on documentary eligibility but also on operational capacity, implementation preparedness and institutional capability for execution of the Supplementary Nutritional Food programme under the Saksham Anganwadi and Poshan 2.0 Scheme.

The scheme itself involves large-scale preparation, logistics management, nutritional compliance, supply chain coordination and real-time operational monitoring across multiple Anganwadi Centres. Evaluation of such capabilities cannot remain confined to paper credentials alone. Administrative authorities are therefore entitled to adopt assessment mechanisms enabling qualitative evaluation of readiness and execution capacity.

Further, the Respondents have explained that the presentation stage was conducted before a higher-level committee, including an external member nominated by the Chief Secretary, GNCTD, with the objective of assessing practical feasibility, infrastructure preparedness and implementation methodology. Nothing has been shown to demonstrate that this assessment was confined to select participants or applied selectively.

It is settled law that tendering authorities possess discretion in determining evaluation methodology, provided the criteria remain uniformly applicable. Courts do not examine whether a better evaluation mechanism could have been devised but only whether the adopted mechanism was arbitrary or discriminatory.

The Petitioners have not been able to demonstrate that the presentation stage constituted a wholly alien criterion inconsistent with the objectives of the EOI. Rather, the allocation of 30 marks towards presentation indicates that the assessment formed part of an integrated evaluation matrix culminating in final selection.

The argument that technical qualification alone created a vested right to selection is misconceived. Qualification at one stage merely entitles participation in subsequent evaluation, it does not guarantee award of projects.

Reliance was placed by the Petitioners on the principle that rules of a tender cannot be altered after commencement of the process.

The doctrine against changing rules mid-process applies where essential eligibility conditions or evaluation benchmarks are fundamentally altered so as to prejudice bidders who entered the competition on an earlier understanding.

In the present case, however, no material has been placed to establish that introduction of presentations altered eligibility conditions or expanded or restricted the field of competition. All technically qualified participants were subjected to the same presentation assessment. The process therefore did not confer advantage upon any identifiable bidder.

Unlike situations contemplated in Monarch Infrastructure (supra), the present case does not involve deletion or modification of an essential tender condition after bids were submitted. At best, it reflects an additional evaluative step adopted to assess execution capability in a welfare scheme involving public nutrition and safety considerations. Consequently, the contention that the rules of the game were impermissibly changed cannot be accepted.

The Petitioners next contend that marks awarded in the presentation stage were not disclosed, thereby rendering the process opaque.

Transparency undoubtedly constitutes an essential requirement of State contracting, as emphasised in Reliance Energy (supra), however, transparency does not necessarily mandate contemporaneous disclosure of individual scoring sheets unless such disclosure is prescribed under the tender conditions.

The EOI does not appear to mandate disclosure of interim scoring to participants. In absence of such stipulation, non-disclosure by itself cannot invalidate the process unless it is shown that evaluation was arbitrary, mala fide or based on extraneous considerations.

Significantly, the Petitioners have not produced any comparative material demonstrating manifest irrationality in marking or favour shown to a particular organisation. Allegations of favouritism remain general and unsupported by cogent evidence.

Judicial review cannot proceed on suspicion or conjecture. As cautioned in Jagdish Mandal (supra), courts must resist attempts by unsuccessful bidders to convert commercial disappointment into constitutional challenge.

The Petitioners have further assailed the conduct of virtual presentations instead of physical inspection of kitchens and infrastructure. The choice of evaluation modality falls squarely within administrative discretion. Unless the adopted method is shown to be irrational or selectively applied, the Court cannot dictate whether inspection ought to be physical or virtual.

No material has been placed to show that virtual presentations compromised fairness or that any participant received preferential treatment. Administrative flexibility, particularly in large-scale governmental programmes, forms part of the permissible "play in the joints" recognised in Tata Cellular (supra).

The allegation that certain selected organisations were allotted multiple projects despite allegedly lesser experience also does not advance the Petitioners' case. Comparative assessment of organisational capability lies within the domain of expert committees. Courts exercising judicial review do not undertake comparative re- evaluation of competing bidders. Interference would be justified only where allocation is demonstrably irrational or actuated by mala fides, neither of which stands established.

The Petitioners contend that issuance of the Impugned Selection List beyond the 120 days validity period vitiates the process. The record indicates that the evaluation process involved multiple stages and administrative approvals at different levels. Tender timelines, unless expressly couched in mandatory consequence clauses, are ordinarily regarded as directory, particularly where participation continued without protest and no bidder withdrew on account of delay.

The Petitioners participated in subsequent stages without objection and raised the issue only after non-selection. Such conduct disentitles them from challenging the process on this ground at a belated stage.

The issuance of LOI without immediate project allocation appears to have been an interim administrative arrangement. In absence of any enforceable contractual right arising therefrom, the same cannot constitute an independent ground for judicial interference.

Moreover, quashing the entire selection at this stage would disrupt implementation of a public welfare nutrition scheme affecting a large beneficiary population, an outcome which courts must avoid unless illegality is clearly established.

CONCLUSION:

For the reasons recorded in the preceding discussion, no ground for interference under Article 226 of the Constitution of India is made out.

The challenge to the Impugned Selection List dated 20.02.2023 fails. The present batch of Writ Petitions is accordingly dismissed. Pending applications stand disposed of.