(MENAFN- Kashmir Observer) Srinagar- The High Court of J&K and Ladakh has said that public interest must be prioritized over private interest in matters of tenders.
“The scope of interference by the Constitutional Courts in tender matters is minimal and confined to the extent when there is arbitrariness, irrationality, and unreasonableness, mala fide or bias,” said a bench of Wasim Sadiq Nargal while dismissing a petition by two transporters regarding tender notice floated by public sector undertaking regarding transportation of petroleum products and LPG gas through J&K as well as in other States.
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”....the conditions of the tender cannot be tailor made to suit the eligibility of a party, who is ineligible in terms of the tender conditions and such party has no vested right to challenge the terms and conditions being ineligible.”
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The court underlined the fact that the tender making authority has an expertise in technical and administrative field, thus, is the best person to frame the terms and conditions.
“The Court having no expertise cannot direct the tender making authority to frame the conditions in a way to suit the eligibility of a particular party who is being ousted from the consideration zone by virtue of being ineligible,” the court said.
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The court also held that while individual interests in a tender matter such as fairness, contractual rights and due process are important and must be safeguarded, they should not override the public interest.
Public procurement, the court said, must be conducted in a manner that serves the public good, ensuring transparency and efficiency.
“Public interest generally takes precedence, in the context of tender process,” the court said, adding,“Thus public interest must be prioritized over private interest. Therefore the Courts are tasked with ensuring that the decision made by public authorities align with the broader goals of public welfare and any interference must be justified by clear demonstration of public interest.”
While dealing with the issue of whether a party who has participated in the tender process can challenge the terms and conditions of the tender, the court said that by participating in the bidding process, the bidder implicitly agrees to the rules, conditions, and requirements outlined in the tender document.
“Therefore, no opportunity is left with the party to challenge the same at a later stage, as he/she accepts the terms and conditions of the same and waives off his/her right while being silent during or before participating in the tender process,” the court said while underscoring that the stand of the Apex Court was clear in various authoritative pronouncements that once a party participates in the tender process without any grouse or demur, it is presumed that he/she is aware of all the terms and conditions of the document and subsequently is estopped under law to question the same.
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