The Delhi High Court dismissed a plea challenging tender conditions issued by the Delhi government for the preparation and supply of midday meals to children of primary and upper primary classes in government-aided schools and alternative and innovative education (AIE) centres under the Samagra Shiksha Abhiyan.
A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad held on October 17 that the tender conditions cannot be said to be “whimsical, capricious, arbitrary or meant to be suited for a select few”.
The court held that as the tender is for the purpose of providing meals for the primary and upper primary students, in order to ensure and to test the capacity of the bidder to provide meals, “the condition imposed of a ready kitchen in Delhi or elsewhere” does not violate Article 14 of the Constitution. “The anxiety in the government not to give the tender to a novice or to a person who does not have a running kitchen cannot be said to be arbitrary in nature,” the court observed.
The court further held that just because the tender “necessitates prior expertise”, does not mean that it favours any particular party. This condition may have been added to ensure that the successful bidder has the wherewithal to carry out the work. Dismissing the plea, the court noted, “Given the narrow scope of tender jurisdiction, this court is disinclined to interfere with the terms set by the respondent.”
The plea was moved by a company against a request for proposal (RFP) issued on September 16 by the Delhi government’s Directorate of Education asking interested “NGOs/voluntary organisations/anybody corporate/ proprietorship/cooperative society etc.” working or willing to work in Delhi for supplying freshly cooked midday meal from their decentralised semi-automated kitchens to the children of primary and upper primary classes of government-aided schools and AIE centres under the Samagra Shiksha Abhiyan. The tender was for a period of one year, further extendable for a period of two years on a yearly basis based on the performance being satisfactory during the initial contract period.
The company wanted to participate in the tender and attended the pre-bid meeting on September 23. It challenged two clauses in the RFP which lay down certain prequalification conditions. The first condition requires that the applicant should either have an existing kitchen for service of meals or it should be able to set up the kitchen infrastructure within 45 days from the date of the work order. The second condition was that the applicant organisation must have an existing running kitchen in Delhi or outside Delhi for reference purposes.
The petitioner argued that this condition shuts out people who do not have a running contract/business. “It is contended that as per the decisions of the apex court, these kitchens are to be run primarily by NGOs/NPOs…that there is no nexus between the condition ought to be imposed and the object which is to promote NGOs,” the order states.
The petitioner argued that the prequalification conditions are “arbitrary, discriminatory, and actuated by bias” as they preclude any new player from entering, and they are tailormade to favour existing entities. The Delhi government argued that it is entirely within its domain to “set prequalification conditions”.
The court observed that while the “state and its instrumentalities” should act fairly while entering into contracts with private parties, this cannot impinge upon the government’s right to set the terms of the tender. “Hence, this court ought only to intervene only if the conditions are arbitrary, discriminatory, mala fide or actuated by bias,” it noted.
