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by Admin
05 April 2026 6:26 AM
"In the absence of any reference in the RFE mandating certification from a specific agency, the submission of a CMMI certificate issued by a third-party certifying body... cannot be ipso facto treated as illegal." Delhi High Court, in a significant ruling dated April 2, 2026, held that a bidder cannot be disqualified for submitting a mandatory qualification certificate from an unauthorized third-party entity if the tender document does not explicitly specify the required issuing authority.
A bench of Justice V. Kameswar Rao and Justice Manmeet Pritam Singh Arora observed that the tendering authority is the "best person to understand and appreciate its requirements," and courts cannot read into a tender a condition that was not in the contemplation of the authority itself.
The petitioner, M/s Karix Mobile Private Limited, an incumbent SMS gateway service provider for the government, filed a writ petition challenging the award of a tender to the lowest bidder (L1) by the National Informatics Centre Services Inc. (NICSI). The petitioner contended that the L1 bidder was ineligible because its mandatory Capability Maturity Model Integration (CMMI) Level 5 certificate was issued by an entity not authorized by the Information Systems Audit and Control Association (ISACA). The petitioner, who emerged as the unsuccessful L3 bidder, approached the High Court seeking to quash the Letter of Empanelment issued in favour of the L1 bidder.
The primary question before the court was whether a bidder could be disqualified for submitting a mandatory certification issued by an entity not recognized by the industry's founding body, when the tender document itself was silent on the specific issuing authority. The court was also called upon to determine whether an unsuccessful bidder could challenge the technical qualification of a rival bidder only after failing in the financial bidding stage.
Tendering Authority Is The Best Judge
The court noted that the Request for Empanelment (RFE) only required a valid CMMI Level 3 or above certificate and did not mandate that the certification must originate exclusively from ISACA or its approved partners. The bench observed that the Technical Evaluation Committee of NICSI had consciously accepted certificates issued by third-party entities, demonstrating that the authority did not contemplate an exclusive issuing agency. Relying on Supreme Court precedents like Afcons Infrastructure Ltd., the court reiterated that constitutional courts must defer to the employer's interpretation of tender documents.
Disputed Questions Of Fact In Writ Jurisdiction
Addressing the petitioner's claim that ISACA and its authorized partners possess the exclusive right to issue CMMI certifications, the court held that this was a disputed question of fact not amenable to writ jurisdiction. The bench noted that the petitioner failed to place on record any statutory or judicial order recognizing such exclusive proprietary rights. The court observed that it could not determine proprietary rights solely based on website declarations or emails without hearing the competing certification bodies.
"This Court in exercise of its writ jurisdiction cannot solely on the basis of the declarations made by CMMI Institute on its website or e-mails placed before us conclusively decide that ISACA and its approved partners have exclusive proprietary rights..."
Impermissible To Read New Conditions Into Tender
The bench emphasized that disqualifying a bidder based on the identity of the certificate-issuing authority, when the tender was silent on the issue, would amount to rewriting the contract. The court found no material on record to suggest that the certificates issued by the third-party entity were sub-par or invalid in law. Relying on the Supreme Court's ruling in Kimberley Club Pvt. Ltd., the bench held that absent a specific prescription, the tendering authority's interpretation cannot be faulted.
"In our considered opinion, having concluded that the bidding process was transparent and fair, no grounds are made out for interfering in the tendering process at the behest of the unsuccessful bidder."
Challenge Defeated By Delay And Laches
The court took strong exception to the timing of the petitioner's challenge under Article 226 of the Constitution. The bench noted that the petitioner had full knowledge of the rival bidder's third-party certification since October 2025, when the technical bids were disclosed on the portal, yet chose to remain silent. It was only after the financial bids were opened in December 2025, and the petitioner emerged unsuccessful, that the present litigation was initiated.
Sanctity Of The Tender Process
The court observed that such a "belated challenge, evidently triggered by the adverse outcome of the financial bid, is contrary to settled principles governing public procurement." The bench noted that the petitioner essentially embarked on an inquiry to find reasons to oust the successful bidder only after losing the contract. The court held that entertaining the writ petition at an advanced stage where investments had been made would undermine the sanctity of the tender process.
Judicial Restraint And Public Interest
Highlighting the critical nature of the government communication services involved, the court held that interfering with the tender would be detrimental to public interest. The bench noted that the successful L1 bidder offered a substantially lower rate, saving approximately Rs. 70 crores of public money compared to the petitioner's bid. The court found no arbitrariness, mala fides, or illegality in NICSI's decision-making process that would warrant judicial interference.
The Delhi High Court dismissed the writ petition, finding it bereft of merit and heavily barred by delay and laches. However, in an important piece of obiter, the court advised NICSI to explicitly clarify its stance on specific certificate-issuing entities in its future tender documents to avoid a repetition of similar controversies.
Date of Decision: 02 April 2026
