ORDER
K.K. Lahoti, J.
1. Petitioner has sought following reliefs:
(1) Direct the respondents to produce the manual lying down the eligibility criteria for contractors before this Hon’ble Court.
(2) Quash the pre-qualification tender notice dated 7-7-2004 (Annexure P-2) that prescribes the impugned eligibility criteria;
(3) Direct the respondents to permit the petitioner to participate in the tender proceedings and submit his bid for the construction of the High Level Bridge on the Tawa River in Betul;
(4) Grant any other relief as deemed fit and just in the circumstances of the case.
2. Facts of the case arc that the petitioner is a registered Civil Contractor for last 20 years and had undertaken several contracts and completed them successfully. The respondents floated tender dated 7-7-2004, Annexure P-2 for planning, designing and construction including surveying and Geo-Technical investigation for construction of Pro-stressed concrete High Level Bridge of 200 mtrs. alongwith total width of 11.05 M (including footpaths and kerbs on both sides) across Tawa River at Pathakera Area of WCL at the selected site including load testing and commissioning of the bridge on Turn Key basis. The estimated cost of the project as shown in the notice was 3.1520 crores. The petitioner is aggrieved by Condition No. 1 of eligibility criteria which reads as under:
“Documentary evidence of successfully executing (in the same name and style of the firm) a single contract of similar nature on Turn Key basis of valuing not less than Rs. 158 lakhs within a period of 12 consecutive months during the last 5 (five) financial years. Commencing from 1999-2000 to 2003-04.”
3. This has been challenged by the petitioner on the ground that the aforesaid eligibility criteria is arbitrary and has been incorporated to reduce the level of competition, to favour few contractors.
4. The respondents filed reply in which it is stated that a committee was constituted for setting out norms of tenders which are above one crore and the committee decided that all the tenderers and should have done work in last five years which must be approximately 50% of the estimated cost of the tender. The present tender is above Rs. 3 crore hence eligibility criteria for experience of work was fixed at Rs. 1.50 crore. This has not been done to favour any particular individual but as a matter of policy decision this has been implemented not only in this tender but also in four other tenders where estimated cost is above Rs. 1 crore. The respondents are free to decide the terms of tender, pre qualification requirement in view of the nature of work and quality of work. In this regard the respondents have complied with the directions issued by the Coal India Ltd. vide its circular Annexure R-1. Once expert committee had considered the matter and submitted its recommendation which were accepted by General Manager, Civil, Director, P & P and Chairman, Managing Director, W.C.L. Though the petitioner has referred various other contractors but those contractors has no relevance as the present contract is independent specialized contract.
5. The petitioner has filed rejoinder to the return and respondents have also filed additional return in the case. Considering the rival convention of the parties only question arises in this petition is whether the aforesaid eligibility criteria is arbitrary and can be struck down ?
6. To appreciate rival contention of the parties, it will be appropriate to look into the recent pronouncement of the Apex Court in Directorate of Education v. Educom Datamatics Ltd. (AIR 2004 SC 1962). The Apex Court considering the question held thus:
“12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny. The same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have a reasonable play in its joints as necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, malafide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts can not strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Courts can interfere only if the policy decision is arbitrary, discriminatory or malafide.
13. Directorate of Education, Government of NCT of Delhi had invited open tender with prescribed eligibility criteria in general terms and conditions under tender document for leasing of supply, installation and commissioning of computer system, peripherals and provision of computer education services in various Government/Government aided Senior Secondary, Secondary and Middle Schools under the Directorate of Education, Delhi. In the year 2002-2003, 748 schools were to be covered. Since the expenditure involved per annum was to the tune of Rs. 100 crores the competent authority took a decision after consulting the technical advisory committee for finalization of the terms and conditions of the tender documents providing therein that tenders be invited from firms having a turnover of more than Rs. 20 crores over the last three years. The hardware cost itself was to be Rs. 40-45 crores. The Government introduced the criteria of turnover of Rs. 20 crores to enable the companies with real competence having financial stability and capacity to participate in the tender particularly in view of the past experience. We do not agree with the view taken by the High Court that the term providing a turnover of at least Rs. 20 crores did not have a nexus with either the increase in the number of schools or the quality of education to be provided. Because of the increase in the number of schools the hardware cost itself went up to Rs. 40-50 crores. The total cost of the project was more than 100 crores. A company having a turnover of Rs. 2 crores may not have the financial viability to implement such a project. As a matter of policy Government took a conscious decision to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies which is a relevant consideration while awarding such a big project. Moreover, it was for the authority to set the terms of the tender. The Courts would not interfere with the terms of tender notice unless it was shown to be cither arbitrary or discriminatory or actuated by malice. While exercising the power of judicial review of the terms of the tender notice the Court can not say that the terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of tender notice consideration and other change in term, unless it is of the opinion that the terms were either arbitrary or discriminatory of actuated by malice. The provision of the terms inviting tenders from firms having a turnover of more than Rs. 20 crores has not been shown to be either arbitrary or discriminatory or actuated by malice.”
7. The Apex Court held that in contractual matter the scope of judicial review is limited. Terms of invitation to tender are not open to judicial scrutiny. In that case the tender, for providing computer hardware and education in the school was in question and the eligibility criteria of having Rs. 20 crore turn-over was fixed considering the expenditure involved. The Apex Court held that the terms of invitation to tender are not open to judicial scrutiny, the same being in the realm of contact. The Government must have free hand in setting the terms of tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision, only if its arbitrary, discriminatory, malafide or actuated by bias. The Court can not struck down the terms of tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Court can interfere only if the policy decision are arbitrary discriminatory or malafide.
8. Now the facts of the present case may be seen. The respondents has taken a policy decision in view of the circular dated 30-11-2000 by Coal India Ltd. by which certain criterias were fixed for tender matters and accordingly a high power committee of the respondents have fixed pre qualification criteria including the criteria in question. The respondents taking into consideration that the estimated cost of project is 3.1520 crore and has fixed eligibility criteria that the tenderer must have successfully execute a single contract, of similar nature of turn key basis of valuing not less than 158 lakhs within a period of 12 consecutive months during the last 5 financial year commencing from 1999 to 2003-04, which appears to be just and proper. The petitioner has not shown any arbitrariness in the aforesaid criteria except the fact that the petitioner does not fall within the aforesaid criteria. This can not be a ground to set aside the aforesaid criteria, until and unless petitioner is able to show more than this, either that arbitrariness, malafides or discrimination in the said criteria. In absence of which no interference can be made in the eligibility criteria fixed by the respondents.
9. In view of the aforesaid, I do not find any merit in this petition warranting interference of this Court. This petition is without merit and is dismissed with no order as to costs.