M/S AGMATEL INDIA PVT. LTD. versus M/S RESOURSYS TELECOM & ORS.

Citation: [2022] 18 S.C.R. 861 · Decided: 31-01-2022 · Supreme Court of India · Bench: DINESH MAHESHWARI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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M/s AGMATEL INDIA PVT. LTD.
v.
M/s RESOURSYS TELECOM & ORS.
(Civil Appeal No. 786 of 2022)
JANUARY 31, 2022
[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]
Tender – Scope of judicial review – Notice inviting tenders
(NIT) issued by Navodaya Vidyalaya samite (NVS) on Govt. Portal
(GeM) for supply of tablets for school children with specific ‘past
performance’ criterion that bidder ought to have supplied ‘same or
similar category’ products to the extent of 80% of bid quantity (which
was changed to 60% by corrigendum) in at least one of the last
three financial years before bid opening – Respondent offered its
bid for the product and was declared disqualified for having fallen
short in ‘past performance’ criterion by 10.20% - Representation
made by the Respondent seeking clarification of the reason for
rejection which was rejected by the NVS on the ground that only
smart phones were supplied by the Respondent and the product
smart phone does not fall within the description of ‘same or similar
category product’ vis-a-vis the product required i.e., ‘Tablet’- Being
aggrieved, the Respondent preferred the writ petition contending
that ‘Tablet’ was an electronic product belonging to the ‘same or
similar category’ as a ‘Smart Phone’ and that the decision of the
NVS, excluding “Smart Phones” from “same or similar category
products” was unreasonable and against the principles of fair play
and logic - during the pendency of the writ, the successful bidder
AGMATEL/appellant herein was awarded the tender – High Court
allowed the writ petition and disapproved the technical
disqualification – On appeal, held: Technical evaluation or
comparison by the Court is impermissible and the author of the
tender document is taken to be the best person to understand and
appreciate its requirements and if its interpretation is manifestly in
consonance with the language of the tender document or subserving
the purchase of the tender – Court would prefer to keep restraint
and even if the interpretation given to the tender document by the
person inviting offers is not as such acceptable to the Constitutional
Court, that, by itself, would not be a reason for interfering with the
[2022] 18 S.C.R. 861
861
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SUPREME COURT REPORTS
[2022] 18 S.C.R.
interpretation given – The only requirement of law, for such process
of decision making by the tender inviting authority, is that it should
not be suffering from illegality, irrationality, mala fide, perversity,
or procedural impropriety – No such case being made out, the
decision of the tender inviting authority (NVS) in the present case
was not required to be interfered with on the reasoning that according
to the writ Court.
Principles/Doctrines – Doctrine of ‘Contra proferentem’ –
Applicabilty of – It is applied in the case of ambiguity in the insurance
policy because the policies are made by the insurer and its ambiguity
cannot be allowed to operate against the insured- However, this
rule cannot be applied to lay down that in case of any ambiguity in
a tender document, it has to be construed in favour of a particular
person who projects a particular view point- The obvious
inapplicability of this doctrine to the eligibility conditions in a notice
inviting tender could be visualised from a simple fact that in case of
ambiguity, if two different tenderers suggest two different
interpretations, the question would always remain as to which of
the two interpretation is to be accepted?- Obviously, to avoid such
unworkable scenarios, the principle is that the author of the tender
document is the best person to interpret its documents and
requirements.
Allowing the appeals, the Court
Held: 1.1. The author of the tender document is taken to
be the best person to understand and appreciate its requirements;
and if its interpretation is manifestly in consonance with the
language of the tender document or subserving the purchase of
the tender, the Court would prefer to keep restraint. Further to
that, the technical evaluation or comparison by the Court is
impermissible; and even if the interpretation given to the tender
document by the person inviting offers is not as such acceptable
to the Constitutional Court, that, by itself, would not be a reason
for interfering with the interpretation given. [Para 17][886-H;
887-A-B]
1.2.Even if some organisations/institutions, with reference
to their requirements or other relevant factors, had assumed
these two products, i.e., “Tablets” and “Smart P

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