@JUDGMENTTAG-ORDER
Mohan Shantanagoudar, J.@mdashThe petitioner has sought for quashing the communication dated 31.3.2009 issued by second respondent vide Annexure-F and the order passed by the appellate authority vide Annexure-H, dated 6.5.2009 in this writ petition. By the said endorsement and order, the tender of the petitioner is rejected.
2. The petitioner is a Small Scale Industrial Unit and is stated to be the manufacturer and supplier of various drugs/medicines for human consumption and veterinary treatments, to the domestic market as well as to various Governmental Institutions, Central and State Governments'' Medical Stores, etc. Respondent No. 2-Tender Inviting Authority invited tenders for supply of various veterinary drugs, chemicals and equipments, etc. to the Department of Animal Husbandary and Veterinary Services by issuing tender notification as per Annexure-A to the writ petition on "Rate Contract" basis. The petitioner is concerned with Item Code Nos. 209 and 252 in this writ petition. For the previous block period, the tenders were invited by the concerned authority for supply of various items including item code No. 209. A single tender was received in respect of item No. 209 and in the said tender the rate quoted was Rs. 405.60. The same was not accepted by the concerned authority. Consequently Item No. 209 is also included in the present tender notification.
3. Petitioner also applied and offered to supply item Code Nos. 209 and 252. The bids of certain other persons were also opened along with the petitioner in respect of various items. Petitioner had quoted the rate of Rs. 340/- in respect of item Code No. 209 and had quoted Rs. 156/- in respect of item Code No. 252. There was a single offer in respect of item Code No. 209 i.e., of the petitioner. However, three tenderers had offered to supply item Code No. 252. Petitioner is the lowest tenderer who had quoted lesser price than other two in respect of item Code No. 252.
Since there was single tender in respect of item No. 209, the negotiation took place as per Clause 19(4) of the tender notification. In the said negotiation, the petitioner has reduced the price of the item Code No. 209 to Rs. 336/- from Rs. 340/-. However, the tenders of the petitioner in respect of both the items was rejected on the ground that the price quoted by the petitioner was high and that there was no comparative rates available with Andhra Pradesh and Tamil Nadu States. In other words, the Tender Inviting Authority having felt that the rates quoted by the petitioner are substantially high, did not accept the bid of the petitioner. The said communication relating to rejection, is questioned before the appellate authority by filing appeal, which also came to be dismissed.
4. Sri M.R. Naik, learned senior advocate appearing on behalf of the petitioner submits that the rejection of the bid of the petitioner in respect of two items mentioned supra is illegal, inasmuch as the rejection is not in terms of the provisions of Karnataka Transparency in Public Procurements Act and Rules. According to him, the tender quoting the lowest price should be accepted in view of Rule 25 of Transparency Rules. He further submits that the price offered by the petitioner is lowest and substantially lesser as compared to the Drug Controller''s rate and therefore, the tender of the petitioner should have been accepted. It is further contended by Sri Naik that the action of the respondents in rejecting the tender of the petitioner is motivated, inasmuch as the petitioner took exception to the mal practice committed by the lower authorities of department by bringing the same to the notice of the higher authorities and hence the respondents-authorities have purposely rejected the offers made by the petitioner; that the authorities below have wrongly rejected the tender of the petitioner in respect of item Code No. 252 on the ground that there was only a single bid, as a matter of fact, three persons had filed tender applications in respect of item No. 252 and that the offer of the petitioner was the lowest.
The writ petition is opposed by the learned Government Advocate by filing the statement of objections.
5. Clause 24 of the tender document clearly reveals that the right to accept or reject any tender, and to annul the tendering process and reject all tenders at any time prior to contract award, without thereby incurring any liability to the affecting tenderer or tenderers is reserved with the Tender Accepting Authority. Which means that the Tender Accepting Authority has got option to reject the tenders in case if the said authority does not wish to accept the tender on any valid ground. As could be seen from the document at Annexure-G, the respondents-authorities have clearly set out the reasons for rejection of tender of petitioner, which read thus:
Product wise status of the firm is as follows:
_______________________________________________________________________
SL. Code Rate Price Reasons for rejection
No. No. quoted in agreed by
present Tenderer
Tender after
negotiation
________________________________________________________________________
1 209 340.00 336.00 As there was no comparative
(Single Bid) rates available with Andhra
Pradesh and Tamil Nadu
States R.C. nor previous R.C.
Rates in the department, the
Tender Accepting Authority
after negotiation felt that
prices quoted by Firm was
high and hence the tender of
this product was rejected as
per Circular issued under
KTPP act PWD/1359/SO/FC-
2001(P-2), dated 03.12.2002.
__________________________________________________________________________
2 252 156.00 - There is no rate comparison
for this product with Andhra
Pradesh and Tamil Nadu R.C.
Prices. Hence, Tender
Accepting Authority felt that
the rate quoted is
substantially high. So
accordingly decided to reject
the product.
____________________________________________________________________________
6. Since the authority concerned having felt that the rates quoted by the petitioner are substantially on the higher side rejected the tenders. Even if petitioner''s tender quotes the lowest price from among the tenders filed, it is open for the Tender Accepting Authority to consider as to whether the rates quoted are on the higher side or not. If the Tender Accepting Authority feels that the rates quoted by the lowest tenderer is also on the higher side, it is open for the authority to reject the same. The reasons for rejection as aforementioned clearly state that there is no rate comparison with Andra Pradesh and Tamil Nadu States and on its evaluation, the authority has found that the rates quoted by the petitioner are on the higher side. Apart from the petitioner''s tender, the authority is stated to have rejected more than sixty tenders in respect of various items, on the ground that the rates quoted are on the higher side.
7. It is by now well settled that the terms of the invitation to tender are not open to judicial scrutiny as the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. The tender inviting authority is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot 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. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
The State can choose its own method to arrive at a decision. It can fix its own terms of invitations to tender and that it is not open to judicial scrutiny unless such terms could be condemned on the touchstone of Article 14 postulates. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation for bona fide reasons; if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest.
8. This Court cannot insist the tender accepting authority to accept the tenders as the authority has felt that the rates quoted are on higher side. The Tender Accepting Authority is expert in the field. This Court cannot act as an appellate authority over the decision of the Tender Accepting Authority for coming to the different conclusion, in such matters.
In view of the same, this Court does not find any ground to interfere with the impugned order. Writ petition fails and accordingly same is dismissed.
