In this article, Mishika Bajpai discusses Constitutionally taming prejudice dealings in the context of Public Procurement.

Abstract

The note analyses the concept of public procurement in the light of transparency and accountability on part of the Governmental agencies and the right to equal opportunity and freedom of trade granted to business entities as enshrined in the Constitution of India, 1950. This note has been written with the intent of familiarizing businessmen with the rationale behind a fair and competitive bidding procedure deployed by the government for procurement of goods and services. The note invites the attention of the quintessential businessman to be acquainted with the rights that are protected in the course of business and trade with the government. A level playing field is considered to be the keystone to the edifice of government procurement and any departure from the same has been met with widespread criticism. This is where judicial supervision plays its vital role in curbing any inefficient and opaque approach in selection of the bidders which may have been overlooked by the purchaser i.e. the Governmental entity.  While examining the General Financial Rules, 2017, the author draws attention to possible difficulties and offers solutions. The issues which may augment the violation of the equality clause under Article 14[1] and the possible encroachment on fundamental right of the class of intending tenderers under Article 19(1)(g)[2] have been addressed by suggesting certain recommendations.

Introduction

1. Procurement is an activity of finding, acquiring, buying goods, services or works from an external source. Public procurement[3] as defined in the Public Procurement Bill, 2012 – means the acquisition by purchase, lease, licence or otherwise of goods, works or services or any combination thereof, including award of Public Private Partnership projects, by a public procuring entity, whether directly or through an agency with which a contract for procurement services is entered into, but does not include any acquisition of goods, works or services without consideration. Most governmental procuring entities opt for tendering or competitive bidding processes by inviting prospective and eligible bidders.
2. This expenditure undertaken by the government is not only for meeting the its day to day needs but also for supporting various services expected from it such as infrastructure, national security, public utilities, employment and educational services and an overall economic development. This way, the private sector too has significant number of opportunities to benefit by supplying various products and services to the government – from hired taxi services[4], hotels[5] and hospitality services[6], building of roads[7], offering professional services and technical support[8], etc. It is noteworthy that this power to spend is derived from the Constitution which vests the executive powers of the Union of India in the President of India[9]and the President, by his order and issuance of allocation rules of the Government of India[10], vests the financial powers of the Indian Government in the Ministry of Finance.
3. The requirement of due process and equal treatment are not only restricted to the Central or State governments but include government owned entities as well such as public sector undertakings, statutory corporations, municipalities and local bodies, etc. Article 299[11] of the Constitution of India stipulates that all contracts made in the exercise of executive power of the union or state shall be supposed to be made by the President or by the Governor. Public procurement is, thus, an all pervasive function across the government machinery. It has grown phenomenally over the years in scale, variety and complexity and is a major activity within the Government.
4. While there are no definitive estimates of total size of India’s public procurement at any place, an Organization for Economic Co-operation and Development (OECD) estimate puts the figure for public procurement in India as high as 30 per cent of India’s GDP.^[12] There is no gainsaying that since the Government allocates a large share of taxpayers’ money to public procurement, the onus, is on the Government to make sure it gets greater value for its money. The policies framed by the Government dole out the ultimate goals of serving public interest.

An example to depicting how differently a private party enters into a contract

1. For instance, let’s suppose that a renowned private motel chain is looking for a local consultant to construct a hotel in a town. This company enters into a typical engineering, procurement and construction contract with the consultant and decides to invite proposals from interested consultants. These consultants will pitch before the management of the company. Out of the 15 consultants who were invited to the pitching session with their bid, the company was specifically overwhelmed with the 7th bidder and wants to award the contract to him. The rest of the program was called off and the remaining 8 bidders were asked to return, without any hearing or evaluation of their proposals.
2. As arbitrary as it sounds, this process if challenged before a court of law shall not be held to be invalid for the simple reason that private business entities are allowed to enter into contracts freely without requiring them to observe any specific procedures before entering into the contract. With near complete immunity for their decisions, private parties will not be held liable for not letting the participation of each and every bidder. Hence, the above procedure might be upheld as perfectly valid, since it has been entered into between two consenting business entities, none of which have alleged either fraud or misrepresentation or any other illegality with the contract.
3. However, cancellation of a contract midway by the government without providing a fair opportunity to party might be successfully challenged before the courts. The rights which a businessman has over fair play and equal opportunity, fundamental rights enshrined in Part III of the Constitution of India, cannot be ignored while responding to the final awarding of contracts. The need for an unbiased and non-arbitrary bid evaluation regime cannot be overstated, which might also form subject matter of challenge before a court of law. In the present example, the Government could have only been able to award the contract only after granting audience to each and every bidder and then selecting the most eligible (financial and technical eligibility) one of them.

The key to understanding how public procurement takes place is to differentiate it from an entry into a private contract agreement.

1. This is because when most private individuals or companies intend to procure, they are free to choose the suppliers and have full autonomy and immunity to choose which procedure shall guide their procurement mechanism. There is no such initiation to any tender or bid for potential suppliers, and entry into a contract is direct. While it is true that an initiation to bids might reduce the prices a private procurer may have to pay for a given project, given the advantages of a competitive bidding process, a private entity still never feels the need to follow specific rules for the evaluation course of action.
2. The Government on the other hand cannot practice or procure without any rules or regulations – this is premised on the rationale that it may give rise to allegations of bias, favoritism and not giving equal opportunity to the eligible and unheard Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. Undisputedly, the legal position which has been firmly established from various decisions of the Apex Court is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on the Government in its dealings with tenderers and contractors.^[13] The Constitutional principles of equal opportunity to all and level playing field[14] in governmental contracts has to be followed throughout the procedure of the bidding and eventual allotment. Wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of resources it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest.[15]
3. The aforenoted concept is adorned with Part XIII of the Constitution deals with Trade, Commerce and Intercourse within the Territory of India which under Article 301 specifically provides for freedom of trade, commerce and intercourse throughout the territory. The freedom to trade throughout the territory is not only derived from this article but also from Article 19(1)(g) which grants the right to a level playing field. Certain restrictions in favor of public interest and prohibiting any discrimination are also set out in the aforesaid chapter.^[16]
4. Though nobody has any right to compel the State to enter into a contract, everybody has a right to be treated equally when the State seeks to establish contractual relationships. The effect of excluding a person from entering into a contractual relationship with the State would be to deprive such person to be treated equally with those, who are also engaged in similar activity.[17]
5. This does not imply that the government is devoid of fixing the rules of the game[18] and does not have the freedom to choose from the potential bidders, however, it must follow a definite and a fair regime to procure goods and services. The Government is also given the independence to choose who it wants to contract with, and one can only challenge unfair treatment and discrimination in the selection process, which has been held to be detrimental to public interest. Once it is proved that the procurement was in fact illegal due to its opaqueness, the Courts will not and has not shied away from nullifying the effects of even mega-scale procurements such as the coal scam case[19] and the 2G spectrum allocation case[20]. At the same time, no person can claim a fundamental right to carry on business with the Government.[21]

Are Governmental contracts only applicable for big businesses? What about small business entities?

1. All kinds of opportunities are open to all potential business entities, including small businesses, which are not kept outside the realm of public procurement and are equally eligible to participate in the procurement process. Like big business entities benefit from supplying to the government, giving huge boosts to their business reputations, small businesses are not deferred from entering into contract which might also result in huge cash flows, as the government usually procures on a large scale. The cushion against any economic downturn is also saved when the demand from the private sector falls.
2. Resurrecting the Small and Medium Enterprises (SME’s) by meeting the transparency requirements can support and promote them immensely. In order to overcome the digital divide between the SME’s and the bidding information, there needs to be an efficient communication mechanism in place. Such paucity of notifications, inability to access market information and business opportunities, not only hampers their market penetration but also creates monopoly of certain regular big players. A channel for wider dissemination between such SME’s and the Government needs to opened, such as an e-portal, where registered SME’s are alerted of the daily updates of bidding invitations. This shall require an e-registration system which sends updates through emails to all the registered bidders preparing them well in advance to apply for the bids they are eligible for. This way an increased participation can be seen from the SME’s towards public procurement. Automated invitations to bid specifically for small and medium businessmen will be seen as a welcome change following with an efficient bidding pool.
3. Likewise, the government cannot outcast private and foreign firms which could again amount to discrimination. The concentration of profits cannot merely reside with the local business entities while the foreign entities suffer. This would not only result in an imbalance in the pool of potential and suitable bidders, but would also affect the profits of private and foreign competing firms. Thus, it is the government’s duty to look out for any discrimination against players in the bidding sphere and encompass optimal policy regimes for both private & public[22] and local & foreign bidders. The aforenoted issue was discussed by the Apex Court in the Assn. of Registration Plates case[23] wherein the petitioners had challenged the condition laying down a prescribed minimum turnover of business (Rs. 12.5 crores). It was alleged that fixing a high turnover for such a new business was only to advance the business interests of a group of companies having foreign links and support but it was impossible for any indigenous manufacturer of security plates to have the same. The Court, while rejecting the claim, noted that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover were not intended to keep indigenous manufacturers out of the field.[24] It was held that selecting one manufacturer through a process of open competition did not amount to creation of any monopoly, as contended, in violation of Article 19(1)(g) of the Constitution read with clause (6) of the said article specially when the tender conditions were formulated taking into account the public interest consideration and aspects of high security.[25]
4. Whilst the above view, it is also true that India has adopted a tit for tat policy against nations who do not entertain Indian suppliers. Nations excluding Indian suppliers shall face similar curbs in participation and competing in bids for the government procurement in India.^[26]

Judicial decisions on the Governmental autonomy and accountability and businessman’s right to fair bidding process

Since the above dialog has given a brief description to the difference between a private and public procurement, it shall now follow with a legal rationale that is followed by the courts while assessing cases challenging government procurements.

1. Where the Government formulated a new scheme by which offered invites from intending purchasers of kendu leaves but the invitation was restricted to those individuals who had carried out the contracts in the previous year without default and to the satisfaction of the Government, the Court held that this was ex facie discriminatory and imposed unreasonable[27] restrictions upon the right of persons other than existing contractors to carry on business.[28]
2. While limiting the course to challenge the Courts have found that a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a Court to interfere.[29]
3. In fact, it has been laid that the threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.[30]
4. While the courts have given enough leverage and standing to the tenderers or contractors seeking damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, have been resisted. Such interferences, either interim or final, the courts have found, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold.[31]
5. The Supreme Court of India in the case of Michigan Rubber (India) Limited State of Karnataka[32] while observing the issue of the formulation of tender conditions, held that their interpretation was also a matter falling within the domain of the executive agency. And unless the process adopted or decision made by the authority was mala fide or intended to favor someone, no judicial interference would be warranted.
6. The grasp of Article 14 in government contracts is not only to secure propriety, maximization of economy and efficiency, but also to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concerned.[33] Although equality and justice cannot take a backseat there may be situations compelling reasons necessitating a departure from the rule. However, these reasons must be rational and should not be suggestive of discrimination.[34]
7. The law is well-settled that contracts by the State, its corporations, instrumentalities and agencies (government entities) must be normally granted through public auction/public tender by inviting tenders from eligible persons and the notification of the public-auction or inviting tenders should be advertised in well-known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, subject-matter of auction, technical specifications, estimated cost, earnest money deposit, etc.[35]
8. In another case, the Supreme Court was concerned with a tender which set forth certain “minimum qualifying requirements” and also went on to require some documents ‘along with the application for issue’ of tender documents. The court held that if the tendering authority had in its wisdom decided to relax some non-essential or ancillary conditions or to grant extra time for furnishing the same, that would not by itself render its conduct objectionable or the bids received consequent to such deviation bad.. It held that such deviations (if made) should not result in arbitrariness or discrimination or substantial prejudice to any of the parties involved or to the public interest in general.[36]
9. Where it was found by the Cyber Crime Cell that some modifications were made to the technical evaluation clause in the bid document, but which clause did not form part of the mandatory criterion for opening the financial bid, the Court held that it warranted no interference. The Court further held that in the absence of mala fides or arbitrariness, court interference should be slow as re-tendering would delay the projects.[37]

General Financial Rules, 2017

For the purposes of this paper, the General Financial Rules, 2017 (GFR) have been analyzed in terms of the check and balances that have been offered therein and how they acknowledge the need for equality, probity and propriety in the procurement procedure. [38]

The GFR framed by the Ministry of Finance notified on 8^th March, 2017 lay down the principles for general financial management and procedures for Government procurement. The rules have the status of subordinate legislation. All government purchases must be in accordance with the principles outlined in the GFRs.

Certain salient features and loopholes present in the GFR, 2017 have been discussed below

1. By way of Rule 144, the Government has enshrined the fundamental principles of public buying (for all procurements including procurement of works) which provides that every authority delegated with the financial powers of procuring goods in public interest shall have the responsibility and accountability to bring transparency and efficiency in matters relating to public procurement[39] and for fair and equitable treatment of suppliers and promotion of competition in public procurement.
2. The GFR 2017 also preserves the concept of transparency vide Rules 159, 160 and 167. The encouragement of use of digital technology is likely to make the procurement process much more efficient, transparent and impartial.[40] This enshrinement of digital systems in public procurement system puts India on par with global best practices in transparency in public procurement.[41]
3. GFR 2017 also enables prospective bidders to formulate and send their competitive bids with confidence and all government purchases be made in a transparent, competitive and fair manner, to secure best value for money.[42] This includes the criteria for eligibility, description of the goods or services required, procedure of sending bids, responsiveness, evaluation, etc.[43]
4. It is interesting to note that the UK’s Public Contracts Regulations (PCR) 2015 under its Regulation 12 mentions where a contracting authority awards the contract to an entity which it controls, such a contract is exempt from the purview of the regulations, the Indian Public Procurement Bill, 2012 and GFR 2017 do not provide for this exception. This speaks volumes of the thorough transparency that is being ensured by the government disallowing any exceptions to the formalities even to its own subsidies.[44]
5. The right to know the reasons for rejection have also been included vides Rule 173(iv) –by stipulating that the reasons for rejecting the tender or non-issuing a tender document to a prospective bidder must be disclosed where enquiries are made by a bidder.[45]
6. Another aspect that has been added to the GFR 2017 is the Competitive Dialog Mode vide Rule 164, GFR, 2017. In case a contracting authority is not able to define the technical means to satisfy its needs or is not able to identify in advance the legal and/or financial make up of a project, it can enter into a ‘competitive dialogue’.[46] A similar issue arose where a challenge as sought against the negotiations held between the government and two competitive contracts regarding the allotment of land for the construction of hotels to boost tourism. The Court noted that the State did not commit any breach of any constitutional or legal obligation if it negotiated with such party and agreed to provide resources and other facilities for the purpose of setting up the industry. [47]
7. India vide GFR 2017, has kept open the foreign participation open to public procurement. However, this operates only in exceptional circumstances, i.e. in case goods of the required quality assurance or specifications are not readily available domestically or it is feasibly necessary to look for suitable competitive offers from abroad.[48] It is nonetheless, the prerogative of a government as to whether and to what degree its government procurement market should be kept open to foreign participation. Recently, enthused by the response received from overseas developers for the station redevelopment programme, the Indian Railways has intended to hold roadshows abroad to showcase the financial robustness of the scheme and attract more investors.^[49]
8. The Rules are also wary of any collusion, bid rigging or anti-competitive behavior that may impair the transparency, fairness and the progress of the procurement process; improper use of information provided by the procuring entity to the bidder with an intent to gain unfair advantage in the procurement process or for personal gain.[50] However, Rule 175(1) does not make an independent or an impartial party in power in order to check for misappropriations and misconduct. The present position would turn out to be disadvantageous since there might be collusions between the bidders and the procurer. The position of an independent external monitor would be crucial for the enforcement of the Code of Integrity[51].

Conclusion

Now what is keenly awaited is the action of the Government in enacting the Public Procurement Bill 2012 which provides Grievance Redressal Committees for the mechanism for quick redress of the grievances of bidders an aspect missing in the GFR 2017. International examples, such as the UNCITRAL Model Law on Public Procurement and the Government Procurement Agreement of WTO have also upheld the independent administrative review mechanism for this purpose.[52]

With the given autonomy for its decision and the stakes being exceedingly high, the cardinal principle which the Government ought to follow is that procurement of material and/or services ought to be done at the most competitive prices in a fair, just and transparent manner. The right to audience of businessmen ought not to be whittled down. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power.[53]

The above must be done keeping in mind that public procurement has a significant economic impact, considering governmental procurement contracts, inclusive of Defence[54], by the Centre, States and local bodies are valued annually at almost 30 percent of India’s GDP, and cover almost every sphere of government activity. As has been discussed, the praiseworthy General Financial Rules, 2017 are a step towards the right direction in India’s need for proper procurement laws serving well against the transparency and equality drive in the business sector. The concept of equality is all the more important when India is pacing towards, Indigenization i.e. local preferences for the ‘Make-in-India’ drive boosting economic growth and generating jobs for our local suppliers. A legitimate tool under our multilateral commitments with a number of major government initiatives can leverage and promote value addition, create employment and give a much needed boost to the manufacturing and economic expansion.

References

[1] Article 14, Constitution of India, 1950 – Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[2] Article 19, Constitution of India, 1950 – Protection of certain rights regarding freedom of speech, etc. – (1) All citizens shall have the right— (g) to practise any profession, or to carry on any occupation, trade or business.

[3] Section 2(r), Public Procurement Bill, 2012 available at http://www.prsindia.org/uploads/media/Public%20Procurement/Public%20Procurement%20Bill,%202012.pdf last seen on 20/06/2017 [A Bill to regulate public procurement with the objectives of ensuring transparency, accountability and probity in the procurement process, fair and equitable treatment of bidders, promoting competition, enhancing efficiency and economy, maintaining integrity and public confidence in the public procurement process and for matters connected therewith or incidental thereto]

[4] In India’s cities, public transport run by private operators makes for a happy ride – if done right (20/04/2017) available at https://scroll.in/article/834542/in-indias-cities-public-transport-run-by-private-operators-makes-for-a-happy-ride-if-done-right, last seen on 20/06/2017

[5] Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295

[6] Debabrata Das, Building blocks of a monopoly, (23/05/2017), Fortune India, available at http://fortuneindia.com/2017/may/building-blocks-of-a-monopoly-1.10862, last seen on 20/06/2017

[7] Sharmistha Mukherjee,  Toll-operate-transfer: Private tolls to fund new roads, (05/08/2015) available at http://indianexpress.com/article/india/india-others/toll-operate-transfer-private-tolls-to-fund-new-roads/

[8] Infosys to take over MCA-21 project from tomorrow (16/01/2013) Business Line available at http://www.thehindubusinessline.com/economy/economy/infosys-to-take-over-mca21-project-from-tomorrow/article4312484.ece, last seen on 20/06/2017 (for continuous improvement and up-gradation to the electronic service delivery of the Corporate Affairs Ministry.)

[9] Article 53, Constitution of India, 1950 – Executive power of the Union.

[10] The Government of India (Allocation of Business) Rules 1961, http://cabsec.nic.in/shownewpdf.php?type=allocation_aob_a1&id=29&special, last seen on 20/06/2017 ; Also, Article 77, Constitution of India – Conduct of business of the Government of India.

[11]  Article 299, Constitution of India, 1950 – Contracts.

[12] Public procurement needs to be opened up (03/03/2017) available at http://www.thehindu.com/business/public-procurement-needs-to-be-opened-up/article17395912.ece, last seen on 20/06/2017

[13] Assn. of Registration Plates v. Union of India [(2005) 1 SCC 679 at para 43; Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 at para 23; See Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617; Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd., (1997) 1 SCC 738; Krishnan Kakkanth v. Govt. of Kerala, (1997) 9 SCC 495; Ugar Sugar Works Ltd. v. Delhi Admn., (2001) 3 SCC 635; Sterling Computers Ltd. v. M&N Publications Ltd., (1993) 1 SCC 445; Union of India v. Dinesh Engg. Corpn., (2001) 8 SCC 491

[14] United India Insurance Co. Ltd. v. Manubhai Dharmasinhbhai Gajera , (2008) 10 SCC 404

[15]  Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1 at pg. 59, para 95

[16] Articles 301-307 of the Constitution of India, 1950

[17] Patel Engineering Ltd. v. Union of India and Anr. (2012) 11 SCC 257 @para 14

[18]  See Mohd. Fida Karim And Anr vs State Of Bihar, (1992) 2 SCC 631

[19] Manohar Lal Sharma v. Principal Secy., (2014) 9 SCC 614

[20] CPIL, supra 11, at 59

[21]  Michigan Rubber (India) Limited v. State of Karnataka and Others, (2012) 8 SCC 216 at para 23

[22] United India Insurance Co. Ltd. v. Manubhai Dharmasinhbhai Gajera , (2008) 10 SCC 404 at pg. 424-427

[23] (2005) 1 SCC 679

[24]  Ibid at para 38

[25] Ibid at para 40

[26]Government unveils tit-for-tat public procurement policy (16/06/2017) available at  http://www.thehindu.com/todays-paper/tp-business/government-unveils-tit-for-tat-public-procurement-policy/article19078600.ece, last seen on 20/06/2017

[27]  See Tata Cellular v. Union of India, (1994) 6 SCC 651 [the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.] See Associated Provincial Picture Houses Ltd.v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)

[28] Rashbihari Panda v. State of Orissa, (1969) 1 SCC 414

[29] Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818 at pg. 825, para 11-13

[30]  Ibid at pg. 825, para 11, 13

[31] Jagdish Mandal v. State of Orissa [(2007) 14 SCC 517, pp. 531-32, para 22

[32] (2012) 8 SCC 216, at para 23-24

[33] Nagar Nigam v. Al Faheem Meat Exports (P) Ltd., (2006) 13 SCC 382 at page 395, para 16

[34]  Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295 at page 326, para 35

[35] Nagar Nigam v. Al Faheem Meat Exports (P) Ltd., (2006) 13 SCC 382 at page 395, para 16

[36] G.J. Fernandez v. State of Karnataka (1990) 2 SCC 488 at p. 501, para 15

[37] Chhattisgarh State Industrial Development Corpn. Ltd. v. Amar Infrastructure Ltd., (2017) 5 SCC 387 at p. 403-405

[38] The General Financial Rules (GFR) 2017, framed by Department of Expenditure, Ministry of Finance, Government of India. Available at http://mof.gov.in/the_ministry/dept_expenditure/GFRS/GFR2017.pdf, last seen on 20/06/2017

[39]  Rule 174, GFR, 2017

[40] “Transparency Mechanism”, Chapter III of the Public Procurement Bill, 2012 available at http://www.prsindia.org/uploads/media/Public%20Procurement/Public%20Procurement%20Bill,%202012.pdf, last seen on 20/06/2017

[41] Rule 173, GFR, 2017. See generally Regulation 22(5) of the Public Contracts Regulations, 2005– the contracting authority is duty bound to “…ensure that the integrity of data and the confidentiality of tenders and requests to participate are preserved” (Regulation 22(11) of the Public Contracts Regulations, 2005; Read generally “Business Recommendations For Public Procurement Policy In India White Paper” by GCNI-CEGET (04/05/2017) available at http://ceget.in/white-paper-business-recommendations-for-public-procurement-policy-in-india/, last seen on 20/06/2017

[42]  Rule 173, GFR, 2017

[43]  Ibid

[44]  Ibid

[45] Rule 173(iv), GFR, 2017

[46] Also see Rule 173 (xiv), GFR, 2017 – Negotiation with bidders after bid opening must be severely discouraged. However, in exceptional circumstances where price negotiation against an ad-hoc procurement is necessary due to some unavoidable circumstances, the same may be resorted to only with the lowest evaluated responsive bidder.

[47] Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295 at page 327, para 37; Kasturi Lal Lakshmi Reddy v. State of J.&K. [(1980) 4 SCC 1, para 14

[48] Rule 161(iv), GFR 2017

[49] Saurabh Kumar, Railways station redevelopment drive: Public sector giant to hold road shows abroad to attract investors,  (17/06/2017) http://www.financialexpress.com/economy/railways-station-redevelopment-drive-public-sector-giant-to-hold-road-shows-abroad-to-attract-investors/722957/

[50]  Rule 175 (1) – Code of Integrity , GFR2017

[51]  Ibid

[52] Supra 38, at 16

[53] Tata Cellular v. Union of India, (1994) 6 SCC 651 at page 675 para 70; Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 at page 76, para 7

[54] Amrita Nair-Ghaswalla, Indian defence manufacturers cautiously optimistic on defence partnership policy (26/05/2017)  available at http://www.thehindubusinessline.com/economy/indian-defence-manufacturers-cautiously-optimistic-on-defence-partnership-policy/article9713540.ece,  last seen on 20/06/2017