[Mid-day Meals] Delhi HC dismisses plea challenging tender conditions imposed by Delhi Govt

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad of the Delhi High Court recently dismissed a plea filed by Mehendiram Foods Products Private Limited challenging the terms and conditions imposed by the Delhi Government for the preparation and distribution of mid-day meals to children in primary and upper primary classes of government-aided schools, Alternative and Innovative Education (AIE) Centres under the Samagra Shiksha Abhiyan.

Noting that the scope of judicial review in administrative decisions under Article 226 of the Indian Constitution, and in particular the freedom granted to an employer to frame tender conditions, is well established, the bench held that the conditions imposed in the tender cannot be said to be “whimsical”, “capricious” or “tailor-made to suit some entity”.

The division bench also held that the tender is for the provision of meals to primary and upper primary students and the requirement of a ready kitchen in Delhi or elsewhere to ensure and test the bidder's capacity to provide meals does not violate Article 14 of the Indian Constitution. “The government’s fear of awarding the contract to a novice or someone without a working kitchen cannot be described as ‘arbitrary’,” the bench added.

The court further observed that just because the tender requires prior expertise does not imply that the tender favors any particular party, and this condition may have been added to ensure that the successful bidder has the resources to complete the work.

“Given, the narrow scope of tender jurisdiction, this Court is disinclined to interfere with the terms set by the Respondent,” the court opined.

The plea was filed in response to a Request for Proposal (RFP) issued in September 2022 by the Delhi Government's Directorate of Education for interested NGOs/Voluntary Organizations/anybody corporate/proprietorship/cooperative society etc. working in Delhi or willing to work in Delhi for the award of work of supply of freshly cooked mid-day meal from their decentralized semi-automated kitchens to children of primary and upper primary classes of Government aided schools, AIE centers under the Directorate of Education's Samagra Shiksha Abhiyan for one year, extendable for two more years on a yearly basis if performance is satisfactory during the initial contract period.

The counsel for the company submitted that the pre-qualification conditions are “arbitrary”, “discriminatory” and motivated by bias. It is also submitted that the terms and conditions imposed preclude any new player from entering and are designed to favor existing entities only. He also claimed that they wanted to participate in the tender and attended the pre-bid meeting held on September 23.

The company challenged two clauses of the RFP which laid down certain pre-qualification conditions. The first one required the applicant organization to have all the required infrastructure ready in the kitchen/godown for meal service (existing kitchen) or be able to set up the kitchen infrastructure within 45 days of the work order date (proposed kitchen), and the second condition required the applicant organization to have existing running kitchens in Delhi or outside Delhi for reference purposes.

The counsel argued that such pre-qualification conditions shut out persons who do not have a running contract/business. He further argued that as per Apex Court’s directions, these kitchens are to be run primarily by the Non-Government Organizations (NGOs)/ Non- Profit Organizations (NPOs) and that there is no nexus between the condition ought to be imposed and the object which is to promote NGOs.

Taking note of the submissions, the court observed that the State and its instrumentalities must act fairly when entering into contracts with private parties, and cannot infringe on the Government's right to set the terms of the tender. “Thus, the court should only intervene if the conditions are arbitrary, discriminatory, deceptive, or motivated by bias,” the court stated. Accordingly, finding no reason to change the tender conditions, the court dismissed the petition.

Case Title: Mehendiram Foods Products Private Limited v. Government of NCT of Delhi