High Court Dismisses Plea Alleging Delhi Govt's Tender Conditions For Midday Meal Scheme Are 'Tailor-Made' For Existing Players

The Delhi High Court has dismissed a plea challenging the tender conditions set by Delhi Government with regard to the contract for preparation and supply of mid day meals to children of primary and upper primary classes of 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 observed that the conditions imposed in the tender cannot be said to be "whimsical, capricious, arbitrary or meant to be suited for a select few."

The plea moved by a private company Mehendiram Food Products Private Limited sought quashing of the tender conditions put in by the Delhi Government in the Request for Proposal issued on September 19, 2022.

As per the Request for Proposal, bids were invited by Directorate of Education in September for the contract regarding supply of freshly cooked mid day meals to schoolchildren, from interested NGOs, voluntary organisation and others, which already have decentralised semi-automated kitchens, for a period of one year, which was extendable for two more years on yearly basis.

It was the petitioner's case that the company, being desirous of participating in the tender, attended the pre-bid meeting wherein it raised issues regarding two clauses of the Request for Proposal which laid down certain pre-qualification conditions.

One of the conditions stated that the organisation applying in the tender should either have an existing kitchen for serving meals or it should be able to set up a proposed kitchen within 45 days from the date of work order.

Another condition stated that in case of a proposed kitchen, the organisation should have other existing running kitchen·inside or outside the national capital, for reference purposes.

The petitioner argued that the two conditions shuts those out who do not have a running contract or business. There is no nexus between the conditions and the object to promote NGOs, the plea argued, adding that the conditions preclude any new player from entering and are tailor made to favour existing entities.

On the other hand, it was submitted by the Delhi Government that it is entirely within its domain to set pre-qualification conditions.

Dismissing the plea, the bench said while the State and its instrumentalities ought to act fairly while entering into contracts with private parties, the court cannot impinge upon the government's right in setting the terms of a tender.

"Hence, this Court ought only to intervene only if the conditions are arbitrary, discriminatory, mala fide or actuated by bias," the court said.

The bench added "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 fall foul of Article 14 of the Constitution of India. 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 added that simply because the tender necessitates prior expertise does not mean that it favours a particular party.

"This condition, as already stated, may have been added to ensure that the successful bidder has the wherewithal to carry out the work. Given the narrow scope of tender jurisdiction, this Court is disinclined to interfere with the terms set by the Respondent," the court ordered.

Title: MEHENDIRAM FOODS PRODUCTS PRIVATE LIMITED v. GOVERNMENT OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 992

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