When reassessing the eligibility of bidders on December 23, the Calcutta High Court's single-judge bench, which included Justice Moushumi Bhattacharya, stated that. The tendering authority is required to uphold the fairness of the selection process and meet the standards of integrity.

The Chittaranjan National Cancer Institute's order from last month was overturned by the court, which ruled that the tendering authority could not simply reaffirm its previous judgement.

"In taking a fresh decision, the Institute was bound to preserve the fairness of the process by re-evaluating the eligibility of the private respondent against the specific tender conditions. The Institute was hence required to state, with due regard to the evidence before the tendering authority at the relevant point of time, that the selection was not guided by any extraneous conditions. The impugned order and the Minutes do not satisfy this benchmark of probity. The Institute has instead simply reiterated its selection and sought to gloss over the infirmities in the selection process," said the court.

The decision was made in response to a writ case filed about a tender for mechanised cleaning services offered by the Institute. One of the bidders, Reliable Facility Services Private Limited, has submitted a petition in 2020 objecting to the contract being given to another bidder. 

According to Justice Bhattacharya, relying on JSS Hospital materials is inappropriate because a document retrieved from the JSS Hospital website would indicate that the hospital had 800 beds.

"This document can by no means be treated as evidence of the private respondent executing and successfully completing the work of mechanised cleaning services for a Hospital with 500+ beds. The document also shows that the critical and emergency care facility has 260 beds which further lends to the ambiguity of whether the private respondent actually performed similar work for JSS Hospital with 500+ beds in one single contract," said the court.

The bench added that relying on such a document would also be against the purpose of the tender requirements, which demanded that qualifying bidders provide proof of having successfully done the required work and analogous work for a hospital with 500+ beds.

"Second, reliance on the downloaded document also amounts to an admission that the private respondent did not furnish the required documents at the relevant stage of the tender. This would be corroborated from the statements made by the private respondent in the supplementary affidavit filed in the earlier round of litigation," said the court.

The verdict was overturned by the court, which also determined that it failed the transparency requirement required for tender procedures. 

Regarding the issue of convenience, the Court cited the fact that the contractor for whom the contract was granted began working at the institute in February 2020. However, it claimed that the offer itself provided that the second-ranked bidder, in this case the petitioner, would be held in reserve and might take over if the first-ranked bidder withdrew, failed to deposit the bank guarantee, or failed to fulfil the other requirements.

"The tender conditions also provide that an agreement / work order issued to the preferred bidder will be terminated on a material misrepresentation or false information given by the preferred bidder. The tender conditions hence provide that the second ranked bidder will take the position of the first ranked bidder on the happening of certain events," said the court.

The court further stated that if the Institute has not met the anticipated level of re-evaluation, the length of time between the filing of the prior writ petition and the impugned judgement cannot be used against the petitioners.

"The petitioners cannot be at the receiving end or be made to suffer the effect of a work order which has wrongly been issued to the private respondent in disregard of the tender conditions. In other words, an illegality cannot be permitted to continue on the defence of balance of convenience," it added.

The bench also noted that where it is determined that a public authority has failed to exercise discretion granted to it by a statute, rule, or policy decision, the High Courts exercising their authority under Article 226 may issue a writ of mandamus, a writ in the nature of a mandamus, or necessary directions.

"The High Court in its writ jurisdiction can intervene in cases where the discretion has been exercised by taking into account irrelevant considerations or by ignoring relevant considerations in a manner which is not consonant with the object for which discretion has been conferred on the authority. The object of issuing of a mandamus is to compel the performance of an act by an authority which comes within the fold of Article 226 and to prevent miscarriage of justice. The ultimate rationale of a 226 jurisdiction is to secure justice for those whose rights under Part III of the Constitution have been infringed by an authority amenable to writ jurisdiction. This Court takes inspiration from the words of Justice D.P. Madon in Comptroller and Auditor General of India, Gian Prakash, New Delhi vs. K.S. Jagannathan; (1986) 2 SCC 679."

The court ordered the tendering authority to take immediate action to terminate the contract with the private respondent and award the remaining time of the tender to the following eligible bidder because it deemed the present case appropriate for interfering with the discretion used by the tendering authority. 

The court denied the request for a stay of the judgment's execution. The Chittaranjan National Cancer Institute has now appealed the single-judge ruling.

Case: Reliable Facility Services Private Limited & Anr. v. Chittaranjan National Cancer Institute & Ors., 
Citation: WPA 25725 of 2022
Link: https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=zDLovBVSUw02H8XukOjXfC7iQYPX9T40PfP91vyXt5%2FkTtquWykQdHQH5jm6dwYE&caseno=WPA/25725/2022&cCode=3&appFlag=