calcutta high court

Calcutta High Court: In a writ petition challenging the tender process due to alleged irregularities during the tender process, issuing of Shortfall Notice, subsequent sampling procedures, and the ultimate selection of another bidder, a single-judge bench comprising of Sabyasachi Bhattacharyya,* J., upheld the respondent authority’s right to test and reject bids based on quality criteria specified in the tender document. The Court rejected the present writ petition, emphasising that the tender issuing authority is the best judge of interpreting tender requirements and that judicial review should exercise restraint in administrative matters requiring technical expertise.

“The Wednesbury Principle of reasonableness being satisfied in the present case and the respondents having acted well within the confines of the tender document, there is no scope of interference whatsoever in the present writ petition.”


In the instant matter, the petitioner 1, a company with one of its Directors (petitioner 2), participated in a tender for the procurement of Surgical Gloves, specifically in Category No. G-2.01/C (“Sterile Gloves”). Petitioner 1 was initially deemed eligible at the technical stage of the tender. A Shortfall Notice was issued post-technical evaluation, providing an opportunity for participants to rectify deficiencies in their bids related to documentation. The successful bidder, a private respondent, allegedly overcame a deficiency related to non-submission of essential documents during the rectification period. The petitioner alleged that during the sampling stage, manual testing by doctors resulted in the rejection of their bid based on criteria such as pre-powdering and stretchability.

The petitioner challenged the tender process due to alleged irregularities during the tender process, including a Shortfall Notice, subsequent sampling procedures, and the ultimate selection of another bidder. The petitioners contend that these actions were arbitrary and provided undue advantage to the successful bidder.

Moot Point

  1. Whether the additional opportunity provided to bidders, as per the Shortfall Notice, was inconsistent with the tender terms and favored otherwise ineligible bidders?

  2. Whether the sampling/testing method employed by the respondent authorities, which involved manual examination by a group of doctors, was appropriate and in compliance with the tender document?

  3. Whether the petitioners’ reliance on a Bureau of Indian Standards document was justified in contesting the sampling methodology?

Petitioners’ Contentions

The petitioners argued that a Shortfall Notice, allowing bidders to rectify deficiencies, gave an unfair advantage to otherwise ineligible bidders, including the successful private respondent. It was contended that the deficiency of the private respondent, related to non-submission of essential documents (MD-5 or MD-3), should have resulted in rejection as per the tender document. The petitioners relied on a Division Bench Judgment of the Allahabad High Court that set aside a blacklisting order against them.

The petitioners challenge the manual testing of samples, asserting that technical tests should not have been conducted without a mechanical process, emphasizing the reliance on Bureau of Indian Standards certificates. The petitioners relied on Saheli Nandi v. Union of India, 2023 SCC OnLine Cal 4953, and argued that altering tender conditions after bid submission is arbitrary and warrants judicial review.

Respondents’ Contentions

The State justified the Shortfall Notice, citing a government memo allowing opportunities for bidders with minor deficiencies to explain within seven days, ensuring wider participation. It was contended that the sampling and testing were crucial for ensuring product quality, and the authority had the right to accept/reject/cancel bids based on factors, including quality, as specified in the tender document.

The State argued that the Bureau of Indian Standards document relied upon by the petitioners does not bind the tender issuing authorities, and their independent assessment of product quality was justifiable. The State relied on N.G. Projects Ltd. v. Vinod Kumar Jain, (2022) 6 SCC 127, asserting that the authority to issue the tender is the best judge of interpretation and that judicial interference is limited.

Court’s Assessment

The Court noted that the petitioner challenged the sampling method, arguing it lacked mechanical testing and contradicted a note in the Bureau of Indian Standards document. The Court examined the product manual for disposable surgical rubber gloves issued by the Bureau of Indian Standards, noting that it was not part of the tender document and doesn’t bind the tendering authorities.

The Court upheld the respondents’ right to independently assess the quality of materials offered and dismissed the petitioner’s reliance on a specific sentence from the product manual. The Court held that the methodology adopted by the respondent authorities for testing samples was within the bounds of rationality and reasonableness and the respondent authorities’ decision was in line with the principles laid down in N.G. Projects Ltd. (Supra), emphasising the authority’s expertise in interpreting tender documents.

“In any event, the officers who were appointed to test the samples were an Associate Professor of Infectious Diseases, SMP Hospital, IPGME & R-SSKM, Kolkata, a Professor, Department of Surgery, NRS Medical College and another medical professional associated with the NRS Medical College who could not be said to be laymen as such.”

The Court noted that the Shortfall Notice was issued in accordance with a government memo, promoting transparency and wider participation, not altering essential tender conditions. The Court dismissed claims of discrimination, stating that the opportunity to rectify deficiencies served the purpose of maximum participation.

The Court opined that the writ petition is liable to be dismissed as the respondent authorities acted within the confines of the tender document, and there is no scope for interference. The Court emphasised that the Court lacks the expertise to review the exact testing methodology and upheld the principle of judicial restraint in administrative actions.

Court’s Decision

The Court held that the methodology adopted by the respondent authorities was rational and reasonable, and the petition lacked merit. The Court dismissed the present writ petition, finding the respondents’ actions within the bounds of the tender document and government policy, with no evidence of arbitrariness or discrimination. No costs are awarded.

[Swear Healthcare (P) Ltd. v. State of W.B., 2024 SCC OnLine Cal 852, order dated 29-01-2024]

*Judgment by Justice Sabyasachi Bhattacharyya

Advocates who appeared in this case :

Mr. Shailendra Jain, Ms. Swati Agarwal, Counsel for the Petitioners

Mr. Sk. Md. Galib, Ld. Sr. Govt. Adv., Ms. Sujata Mukherjee, Counsel for the State

Mr. K. Bhattacharjee, Mr. Rezanul Hossain, Mr. Parvez Hossain, Counsel for the Respondent 6

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