Understanding Article 226, judicial review of tenders, GeM suspensions, bid disqualification, blacklisting and the limits of governmental procurement discretion

The Government e-Marketplace (“GeM”) has fundamentally altered the manner in which government procurement is conducted in India. Tender notices, technical specifications, eligibility conditions, bid submissions, technical evaluations, financial bids, reverse auctions, purchase orders and even certain aspects of post-award administration now take place through a digital procurement ecosystem.

But the digitisation of procurement has not altered its constitutional character.

Where the State, a Government department, statutory authority or public instrumentality takes a decision in the course of public procurement, that decision does not become immune from judicial scrutiny merely because it has been taken through an electronic platform. At the same time, the fact that a procurement decision is amenable to judicial review does not mean that every unsuccessful bidder is entitled to invite the High Court to re-evaluate the tender and substitute its own commercial judgment for that of the procuring authority.

This distinction lies at the heart of GeM litigation.

The jurisdiction under Article 226 of the Constitution of India is a jurisdiction of judicial review, not appellate review. The High Court ordinarily examines whether the decision-making process was lawful, fair, rational and within the bounds of the authority’s power. It does not ordinarily decide which product should have been preferred, which technical interpretation was commercially wiser, or which bidder ought to have emerged as L1.

The Supreme Court’s jurisprudence beginning with Tata Cellular v. Union of India, and subsequently developed through Jagdish Mandal v. State of Orissa, Michigan Rubber (India) Ltd. v. State of Karnataka, Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., Silppi Constructions Contractors v. Union of India and subsequent decisions, establishes a consistent principle of judicial restraint in matters of government contracts and tenders.

The emerging body of GeM litigation demonstrates, however, that this restraint is not abdication. High Courts have intervened where GeM or the procuring authority has acted arbitrarily, contrary to binding procurement requirements, in violation of natural justice, beyond the scope of the applicable framework, or in a manner that is disproportionate or discriminatory. Recent decisions concerning GeM suspension, tender evaluation and buyer-specific debarment illustrate the contours of this jurisdiction.

The real question, therefore, is not simply:

“Can a bidder approach the High Court against a GeM decision?”

The more important question is:

“When does a procurement decision cease to be a matter of legitimate administrative or commercial discretion and become vulnerable to judicial review?”

I. GE-M AND ARTICLE 226: THE BASIC JURISDICTIONAL POSITION

1. Does Article 226 apply to GeM disputes?

In appropriate cases, yes.

Article 226 confers a wide constitutional power upon the High Courts to issue writs, directions and orders for enforcement of fundamental rights and “for any other purpose”.

Government procurement is ordinarily undertaken by:

• the Union Government;
• State Governments;
• Ministries and Departments;
• statutory bodies;
• public sector undertakings;
• Government corporations;
• autonomous or other public authorities.

The fact that procurement is routed through GeM does not alter the character of the underlying State action.

It is therefore necessary to distinguish between:

GeM as the electronic procurement platform, and

the procuring authority exercising the underlying governmental procurement power.

A challenge may, depending upon its nature, concern:

• a GeM Incident Management decision;
• a suspension or Temporary Moratorium;
• a buyer’s tender condition;
• technical disqualification;
• financial evaluation;
• rejection of a bid;
• cancellation of a tender;
• award of contract;
• buyer-specific debarment;
• blacklisting;
• termination of a GeM contract;
• or implementation of an adverse buyer decision through the GeM platform.

The identity of the actual decision-maker and the source of the impugned power therefore require careful examination before a writ petition is drafted.

II. ARTICLE 226 IS NOT AN APPEAL AGAINST A TENDER DECISION

The most important proposition governing procurement litigation is that the High Court does not sit as an appellate authority over the commercial decision of the State.

The Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651, explained that judicial review is concerned principally with the decision-making process, rather than the merits of the decision itself. The Court identified illegality, irrationality, procedural impropriety and abuse of power among the grounds on which intervention may be justified.

The principle was subsequently articulated with particular clarity in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517. The Court emphasised that government contracts are essentially commercial transactions and that judicial review should not become an instrument for protecting the private interest of an unsuccessful tenderer at the cost of public interest.

The Court’s approach may therefore be expressed in simple terms:

The High Court reviews legality; it does not ordinarily review commercial wisdom.

A bidder cannot succeed merely by demonstrating that:

• its own technical proposal was better;
• its price was lower;
• another interpretation of the tender was possible;
• the buyer could have prescribed different specifications;
• or the bidder believes that the authority made a commercially unwise choice.

The petitioner must identify a legally cognisable defect in the exercise of governmental power.

III. THE JAGDISH MANDAL TEST

A particularly useful framework for practitioners is the test laid down in Jagdish Mandal.

The Court indicated that intervention in tender matters should ordinarily be considered where:

1. the process adopted or decision made is mala fide or intended to favour someone; or
2. the process or decision is so arbitrary and irrational that no responsible authority acting reasonably and in accordance with law could have reached it;

and the Court must also consider whether public interest is affected.

This provides a useful two-stage inquiry.

First:

Is there a serious legal infirmity in the process or decision?

Second:

Would judicial intervention be justified having regard to public interest and the stage of the procurement?

Both questions matter.

A petitioner who establishes only that it suffered prejudice does not necessarily establish a case for judicial review.

IV. THE COURT WILL NOT “SECOND-GUESS” TECHNICAL EXPERTISE

One of the strongest restraints imposed by procurement jurisprudence concerns technical evaluation.

In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, the Supreme Court held that the authority which authors the tender documents is ordinarily best placed to understand and interpret its own requirements. Constitutional courts should defer to that interpretation unless it is shown to be mala fide, perverse or otherwise legally unsustainable.

The principle is particularly relevant to GeM because a large proportion of procurement disputes concern:

• technical specifications;
• product equivalence;
• testing requirements;
• certifications;
• technical experience;
• quality standards;
• OEM requirements;
• inspection criteria;
• performance parameters.

A bidder cannot ordinarily convert Article 226 proceedings into a technical appeal.

If the tender authority has two reasonably possible interpretations of a technical requirement and adopts one that is rationally connected to the procurement objective, the High Court is ordinarily reluctant to substitute its own interpretation.

The question is not:

“Would the Court have interpreted the specification differently?”

The question is:

“Is the interpretation adopted by the authority legally irrational, perverse, mala fide or contrary to the tender itself?”

That distinction is fundamental.

V. “EXPERT COMMITTEE” IS NOT A SHIELD AGAINST ILLEGALITY

The principle of judicial restraint does not mean that the expression “expert committee” ends the inquiry.

Expertise attracts judicial deference; it does not confer immunity from judicial review.

The Court can still examine whether the expert body:

• applied the correct tender criteria;
• considered the relevant documents;
• ignored relevant material;
• relied upon irrelevant considerations;
• treated similarly situated bidders differently;
• introduced a criterion not contained in the tender;
• or reached a conclusion that is demonstrably perverse.

Thus, the correct proposition is:

Courts defer to technical expertise, but they do not defer to illegality.

This distinction becomes especially important where a bidder is disqualified on the ground that it failed a requirement that was either absent from the tender or applied selectively.

VI. WHEN CAN A GE-M TENDER CONDITION ITSELF BE CHALLENGED?

Tender conditions occupy a particularly protected area of governmental discretion.

The State must be permitted to determine:

• what it requires;
• the quality it requires;
• the experience necessary;
• the financial capacity necessary;
• the technical parameters;
• the delivery requirements;
• and the procurement methodology.

A court does not ordinarily redesign a tender merely because another formulation might have permitted greater competition.

However, the authority’s discretion is not absolute.

A tender condition may become vulnerable where it is demonstrably:

• arbitrary;
• discriminatory;
• mala fide;
• irrational;
• unrelated to the procurement objective;
• contrary to a binding statutory or governmental requirement;
• designed to favour a particular bidder;
• or otherwise violative of Article 14.

The Supreme Court has repeatedly recognised this limited but important area of judicial review.

VII. WHEN DOES A “RESTRICTIVE” SPECIFICATION BECOME A “TAILOR-MADE” SPECIFICATION?

This is one of the most frequently alleged grounds in procurement litigation.

There is, however, a substantial difference between a specialised specification and a tailor-made specification.

A specialised specification may legitimately restrict competition where the Government has a genuine need relating to:

• safety;
• interoperability;
• technical compatibility;
• quality;
• performance;
• statutory standards;
• operational requirements;
• or specialised functionality.

A specification becomes legally suspect where the surrounding circumstances indicate that its real purpose is to exclude otherwise capable competitors and favour a particular supplier.

Potential indicators may include:

• highly unusual technical parameters;
• specifications corresponding almost exactly to one manufacturer’s product;
• unnecessary proprietary characteristics;
• disproportionate experience requirements;
• unexplained turnover thresholds;
• unusual certification requirements;
• a combination of conditions capable of being satisfied by only one known supplier;
• unexplained departure from previous procurement specifications;
• post-publication amendments benefiting a particular participant;
• selective relaxation of conditions.

But the mere fact that only one or two suppliers qualify is not by itself proof of illegality.

The Court will ordinarily ask whether there is a rational connection between the condition and the procurement objective.

VIII. GE-M CONDITIONS CANNOT BE EXAMINED IN ISOLATION FROM BINDING PROCUREMENT RULES

An important category of litigation arises when a buyer inserts a condition in a GeM bid that allegedly conflicts with a binding procurement requirement.

The relevant hierarchy must be examined carefully.

Depending upon the procurement, one may have to consider:

• the governing statute;
• General Financial Rules;
• Department of Expenditure instructions;
• procurement manuals;
• MSME/MSE policy;
• Startup policy;
• Make in India requirements;
• departmental procurement guidelines;
• GeM terms and conditions;
• bid-specific STC/ATC;
• and the tender document itself.

A buyer cannot necessarily defend every condition by saying:

“The condition was uploaded on GeM, and therefore it is valid.”

The question is whether the buyer possessed the legal authority to impose that condition in the first place.

IX. A RECENT GE-M EXAMPLE: WHEN TECHNICAL EVALUATION DEPARTS FROM BINDING GUIDELINES

The decision in M/s Murali Manpower Agencies v. Union of India, decided by the Telangana High Court in January 2026, provides a significant illustration.

The dispute arose from a GeM tender issued by ESIC for security manpower services. The High Court found that the tender conditions and technical evaluation were in derogation of binding guidelines, including in relation to the eligibility criteria and consideration of the petitioner’s MSME and SC/ST status. The Court characterised the deviations as reflecting non-application of mind, lack of proportionality and institutional unfairness, and held the action violative of Article 14. It set aside the award and directed a fresh technical evaluation in accordance with the applicable guidelines.

This is an important distinction.

The Court did not interfere merely because the petitioner was dissatisfied with the outcome.

It intervened because the procurement process was found to have departed from binding norms governing the evaluation itself.

That is the kind of distinction a serious GeM writ petition must establish.

X. CAN A TECHNICALLY DISQUALIFIED BIDDER APPROACH THE HIGH COURT?

Yes, but the nature of the challenge is critical.

A bidder should distinguish between:

“The committee was wrong.”

and

“The committee applied the tender unlawfully.”

The former ordinarily invites judicial restraint.

The latter may justify judicial review.

The case becomes stronger where the petitioner can establish that:

• the tender condition was incorrectly applied;
• the authority introduced a new eligibility criterion;
• mandatory documents were ignored;
• a document satisfying the published requirement was disregarded;
• another bidder was granted a relaxation not granted to the petitioner;
• the authority relied on a condition absent from the tender;
• the evaluation was contrary to the prescribed methodology;
• or the decision is unsupported by the record.

The High Court may then intervene without itself undertaking the technical evaluation.

XI. THE COURT WILL DISTINGUISH AN ERROR FROM PERVERSITY

This distinction is central.

Not every error committed by a tender authority is a ground for constitutional intervention.

A petitioner should ideally demonstrate something more substantial, such as:

• a conclusion unsupported by the record;
• reliance on irrelevant material;
• failure to consider material evidence;
• a conclusion contrary to an express tender condition;
• an interpretation that no reasonable authority could have adopted;
• unequal application of the same criterion;
• or an outcome produced through a fundamentally defective process.

The concept of perversity is particularly important in technical procurement.

The Court is not expected to determine whether a particular engineering, scientific or commercial conclusion is the best one. But it may determine whether the conclusion is so unreasonable or unsupported by the record that it cannot legitimately be sustained.

XII. CAN THE BUYER INTRODUCE A NEW CRITERION AFTER BIDS ARE SUBMITTED?

The short answer is that this presents a serious legal difficulty.

The fundamental principle is simple:

The rules of the procurement cannot ordinarily be changed after the bidding process has commenced so as to disadvantage a bidder.

There is an important distinction between:

Clarification

Explaining an existing requirement.

and

Introduction of a new requirement

Creating a condition that did not previously exist.

For example, if the tender requires a bidder to demonstrate five years’ experience in a particular field, asking the bidder to explain the documents submitted in support of that experience may be clarification.

But if, after bids are submitted, the buyer announces that experience must now have been with a particular class of Government organisation when no such condition existed in the tender, that may constitute a materially different eligibility criterion.

Such a challenge should be examined against the precise tender language and the circumstances in which the new requirement arose.

XIII. BEING L1 DOES NOT AUTOMATICALLY CREATE A RIGHT TO THE CONTRACT

A recurring misconception among bidders is:

“I am L1, therefore the Government is legally bound to award the contract to me.”

That proposition is too broad.

L1 status ordinarily arises only after satisfaction of the applicable technical and eligibility requirements.

Even an L1 bidder may lose the contract where, for example:

• it is subsequently found ineligible under the tender;
• its bid does not satisfy a mandatory requirement;
• the tender is validly cancelled;
• the procurement is abandoned for a legitimate reason;
• or another legally sustainable ground exists.

However, an L1 bidder who is otherwise qualified cannot ordinarily be displaced through an arbitrary or post-facto process.

The distinction is therefore between:

No automatic vested right merely by being L1

and

No licence to disregard an L1 bidder through an unlawful process.

XIV. GE-M SUSPENSION AND DEBARMENT: A DIFFERENT CATEGORY OF WRIT CASE

Challenges to GeM suspension or debarment deserve separate treatment because the legal position differs in certain respects from ordinary tender evaluation.

Where a seller is suspended, placed under Temporary Moratorium or subjected to buyer-specific debarment, the potential grounds may include:

• defective show-cause notice;
• inadequate opportunity;
• reliance upon undisclosed material;
• failure to consider the seller’s reply;
• action beyond the SCN;
• wrong application of the Incident Management Policy;
• disproportionate punishment;
• excessive duration;
• repeated punishment for the same deviation;
• excessive geographical or organisational scope.

Recent decisions demonstrate that High Courts are willing to scrutinise these issues.

XV. THE GE-M SCN AND THE LIMITS OF JUDICIAL INTERVENTION AT THE SHOW-CAUSE STAGE

A particularly instructive example is M/s Pavan Supply Corporation v. Union of India & Anr., decided by the Calcutta High Court on 15 June 2026.

The seller was issued a GeM show-cause notice alleging participation in 20 bids involving the same IP address, proximity of time and proximity of price with two other sellers. The seller explained that it had engaged a tender consultant and that the common IP address arose from the consultant’s activities for multiple businesses.

The petitioner approached the High Court seeking quashing of the SCN.

The Court declined to interfere at that stage.

The decision is significant because it demonstrates that the existence of a potentially serious allegation does not justify premature judicial intervention merely because the seller disputes the allegation.

The Court directed GeM to consider the petitioner’s reply on its own merits and indicated that a personal hearing could be afforded if necessary.

The lesson is important:

A writ petition challenging an SCN must establish something more than the fact that the petitioner disputes the allegations.

Intervention at the show-cause stage becomes more compelling where the notice is:

• wholly without jurisdiction;
• fundamentally vague;
• issued by an incompetent authority;
• based on an impossible allegation;
• or otherwise suffers from a jurisdictional or constitutional defect.

Otherwise, courts are generally reluctant to short-circuit an ongoing administrative process.

XVI. GE-M SUSPENSION: THE SCOPE OF THE PENALTY MAY ITSELF BE REVIEWABLE

The question is not only whether GeM could take action.

It may also be:

Was the action imposed in the manner and to the extent that the law permits?

The Delhi High Court’s decision in Intertek India Pvt. Ltd. v. Union of India & Ors., decided on 30 March 2026, is particularly instructive.

The petitioner had been debarred by BHEL from business dealings with BHEL and, consequentially, had its GeM account suspended for 365 days in a manner that effectively prevented participation in tenders across government entities and departments.

The Court recorded that BHEL’s intended action was confined to its own organisation, whereas the GeM suspension had operated across the platform. The Court had earlier directed coordination between BHEL and GeM so that the suspension would be confined to BHEL-related tenders.

Ultimately, the Court set aside the BHEL debarment and, consequently, the consequential GeM suspension. It also found the maximum punishment contemplated by the applicable framework to be unjustified and grossly disproportionate in the circumstances.

This case illustrates a broader principle:

The breadth of an administrative restriction must bear a rational relationship to the misconduct for which it is imposed.

XVII. BLACKLISTING AND DEBARMENT ATTRACT A HEIGHTENED DEGREE OF FAIRNESS

The consequences of blacklisting or debarment are qualitatively different from an ordinary adverse tender evaluation.

A bidder excluded from one tender may pursue other opportunities.

A bidder blacklisted from Government procurement may effectively be excluded from a substantial portion of its market.

Accordingly, the jurisprudence relating to blacklisting places considerable emphasis upon:

• prior notice;
• the grounds of proposed action;
• the proposed period or nature of debarment;
• opportunity to respond;
• consideration of the response;
• reasons for the final decision;
• proportionality.

The Court may scrutinise a debarment more closely because of its substantial reputational and commercial consequences.

This is why a GeM suspension/debarment petition should not be drafted as though it were merely a challenge to an unsuccessful tender.

XVIII. NATURAL JUSTICE: WHEN DOES IT BECOME A GROUND FOR WRIT INTERVENTION?

Natural justice is often invoked too casually.

A serious petition should identify the precise procedural failure.

For example:

No meaningful notice

The seller was not told the case it had to answer.

Undisclosed material

The decision relied upon documents or evidence that the seller was not given an opportunity to address.

Mechanical consideration

The seller filed a detailed reply but the final order merely reproduced the allegation without dealing with the defence.

Punishment beyond the SCN

The final order imposes a materially different consequence from that which the seller was called upon to answer.

Absence of reasons

The authority provides no intelligible basis for rejecting the defence.

The petitioner should also demonstrate prejudice where relevant.

It is considerably stronger to plead:

“The petitioner was denied an opportunity to address document X; had that document been disclosed, the petitioner would have produced document Y, which directly establishes Z.”

than merely to state:

“Natural justice was violated.”

XIX. WHEN CAN GE-M ACTION BE CHALLENGED FOR BEING BEYOND THE SHOW-CAUSE NOTICE?

This is particularly relevant to suspension proceedings.

In Shree Durga Industry & Anr. v. Union of India & Ors., the Calcutta High Court quashed a GeM suspension after finding that the impugned action extended to withdrawal of ongoing bids in a manner not supported by the show-cause notice and the applicable framework. The Court also considered the absence of any explained distinction between two substantially identical incidents, one of which had previously been decided in favour of the seller.

The case illustrates a fundamental administrative-law principle:

An authority cannot ordinarily impose a materially adverse consequence on the basis of a case that the affected party was never given a fair opportunity to answer.

The comparison should therefore always be:

SCN → Reply → Final Order

Any unexplained expansion between those three stages deserves close scrutiny.

XX. THE ALTERNATIVE-REMEDY RULE: THE FIRST OBJECTION A PETITIONER WILL FACE

In almost every GeM writ petition, the Government is likely to raise some form of preliminary objection:

“The petitioner has an efficacious alternative remedy.”

This objection must be anticipated rather than treated as an afterthought.

The existence of an alternative remedy does not technically extinguish the High Court’s constitutional jurisdiction under Article 226.

But it ordinarily affects the Court’s exercise of that jurisdiction.

The established exceptions include circumstances such as:

• violation of fundamental rights;
• breach of natural justice;
• proceedings wholly without jurisdiction;
• challenge to the vires of a provision.

The Supreme Court has repeatedly described the alternative-remedy rule as a rule of judicial policy, convenience and discretion rather than an absolute bar to jurisdiction.

Accordingly, a writ petition must distinguish between:

Maintainability

and

Entertainability.

A petition may be constitutionally maintainable but still be declined because the Court considers the available alternative remedy adequate.

XXI. WHAT IF THE GE-M APPEAL IS STILL PENDING?

This is particularly important in suspension matters.

The Government may argue:

“The seller has already invoked the GeM appeal mechanism. The writ petition is premature.”

The petitioner may respond that:

• the appeal is not efficacious in the circumstances;
• the suspension continues during the appeal;
• the suspension is causing continuing commercial prejudice;
• the appeal is unlikely to be decided before the restriction substantially expires;
• the underlying action suffers from a jurisdictional defect;
• natural justice has been fundamentally violated;
• urgent interim relief is required.

The Delhi High Court’s decision in Acromax Industries Pvt. Ltd. v. Government e-Marketplace, decided on 7 May 2026, illustrates the Court’s willingness to require expeditious consideration of a GeM appeal where the suspension itself had serious commercial consequences.

The appropriate litigation strategy may therefore sometimes be to seek a limited direction for time-bound disposal of the statutory or contractual appeal, rather than immediately asking the Court to adjudicate the entire underlying dispute.

That is often a more proportionate remedy.

XXII. DELAY AND LACHES: WHEN THE BIDDER WAITS TOO LONG

Timing is critical in procurement litigation.

A bidder who challenges a tender condition immediately is in a substantially stronger position than one who:

1. participates in the tender;
2. loses;
3. waits for technical evaluation;
4. waits for financial bids;
5. waits for declaration of L1;
6. waits for award;
7. and only then approaches the Court challenging the original condition.

The Court will inevitably ask:

Why was the challenge not brought earlier?

The Supreme Court has repeatedly cautioned against permitting unsuccessful bidders to use judicial review as a means of obstructing procurement after participating in the process.

The recent litigation in Utkarsh Enterprises also illustrates the importance of timing, participation and locus when challenging GeM tender conditions.

The practical principle is:

If a tender condition is fundamentally objectionable, challenge it at the earliest stage rather than accepting the rules and challenging them only after losing.

XXIII. LOCUS STANDI: WHO CAN CHALLENGE A GE-M TENDER?

The strength of the petitioner’s standing will depend upon its relationship with the procurement.

A:

• participating bidder;
• technically disqualified bidder;
• prospective bidder;
• industry association;
• successful bidder;

may stand on different legal footing.

A bidder who participated and suffered a specific adverse decision ordinarily has a more direct cause of action.

A prospective bidder who never participated may face questions as to:

• actual prejudice;
• locus;
• delay;
• availability of alternative opportunities;
• and whether the challenge is sufficiently concrete.

The Court may also require affected successful bidders to be impleaded where their rights may be disturbed.

In Afcons Infrastructure, the Supreme Court specifically recognised the propriety of impleading eligible bidders in proceedings challenging the tender process because they may have a direct interest in the outcome.

XXIV. MALA FIDES AND FAVOURITISM: PLEAD WITH PARTICULARS

Allegations that a GeM tender was “fixed” or “tailor-made” for a particular company are serious.

They should not be pleaded merely because:

• one company qualified;
• one company won;
• a technical specification appears restrictive;
• the petitioner lost.

A credible allegation of mala fides should be supported by circumstances such as:

• unexplained changes in specifications;
• selective relaxation;
• differential treatment;
• unusual correspondence;
• pre-existing relationships;
• post-bid alterations;
• unexplained deviations from established practice;
• preferential treatment;
• evidence demonstrating a predetermined outcome.

The pleading should establish:

conduct → circumstance → inference → legal consequence.

Bare allegations of favouritism are unlikely to persuade a constitutional court.

XXV. DIGITAL EVIDENCE: A NEW FRONTIER IN GE-M LITIGATION

GeM disputes increasingly involve evidence that did not feature prominently in traditional tender litigation.

This may include:

• IP addresses;
• timestamps;
• login records;
• bid submission patterns;
• catalogue histories;
• system-generated alerts;
• digital communications;
• common network infrastructure;
• transaction metadata.

The legal question may therefore become:

When does digital correlation constitute evidence of misconduct, and when is it merely circumstantial evidence requiring explanation?

The Pavan Supply Corporation proceedings provide a useful illustration. GeM relied upon common IP addresses, proximity of bid submission and price proximity across 20 bids. The seller provided an explanation that a tender consultant engaged by it also provided services to other businesses, accounting for the common IP address.

The Court did not finally decide the merits at the SCN stage. It directed GeM to consider the seller’s explanation on its own merits.

The broader lesson is important:

Digital evidence may be highly probative, but the inference drawn from it must still be legally and factually sustainable.

XXVI. WHEN WILL THE COURT REFUSE TO INTERFERE?

A credible article on judicial review must explain not only when the Court intervenes, but also when it will decline to do so.

A writ petition is likely to face substantial difficulty where:

• the petitioner merely disagrees with a technical assessment;
• the tender condition is commercially inconvenient but rational;
• two reasonable interpretations exist and the authority has adopted one;
• the petitioner participated knowing the condition and challenged it only after losing;
• there is substantial delay;
• the contract has already been substantially performed;
• an effective alternative remedy remains available;
• the dispute is primarily factual;
• the allegation of mala fides is unsupported;
• intervention would seriously prejudice public interest;
• the petitioner is essentially asking the Court to award the contract to it.

The Supreme Court’s decisions repeatedly caution against turning judicial review into an appellate mechanism for unsuccessful tenderers.

XXVII. INTERIM RELIEF: OFTEN THE REAL BATTLE IN A GE-M WRIT

In many procurement cases, the final judgment is not the immediate concern.

The immediate question is:

What happens to the tender while the litigation is pending?

A petitioner may seek:

• stay of the tender;
• restraint on opening financial bids;
• restraint on issuance of the purchase order;
• stay of a suspension;
• restoration of GeM access;
• permission to participate;
• status quo;
• restraint against implementation of an adverse order.

The Court will generally balance:

Prima facie case

Is there a serious legal infirmity requiring protection?

Balance of convenience

Which side will suffer greater prejudice?

Irreparable injury

Can the injury be adequately remedied later?

Public interest

Will intervention delay or jeopardise an important public procurement?

This last consideration is particularly significant in Government procurement.

XXVIII. WHAT MAKES A STRONG INTERIM-RELIEF CASE?

A strong case may involve:

• a tender condition plainly contrary to a binding statutory or governmental requirement;
• clear violation of natural justice;
• action beyond jurisdiction;
• obvious discrimination;
• a demonstrated post-bid alteration of criteria;
• a suspension that is manifestly disproportionate;
• imminent irreversible commercial prejudice;
• and a tender process that has not yet created substantial third-party rights.

A comparatively weak case may be founded merely upon:

• being L1;
• disagreement with technical evaluation;
• an unsubstantiated allegation of favouritism;
• speculative loss;
• a challenge brought after award;
• or the petitioner’s own delay.

XXIX. SHOULD THE COURT QUASH THE ENTIRE TENDER?

Not necessarily.

This is an important aspect of litigation strategy.

Even where the Court finds illegality, the appropriate remedy may be surgical rather than destructive.

The Court may:

• direct fresh technical evaluation;
• require reconsideration;
• permit a bidder to participate;
• set aside only the disqualification;
• confine a suspension to a particular organisation;
• direct a fresh speaking order;
• require compliance with a particular procurement guideline.

The decision in Murali Manpower Agencies is illustrative. Having found illegality in the tender conditions and technical evaluation, the Court set aside the award and directed fresh technical evaluation in accordance with the applicable guidelines.

This suggests an important litigation principle:

The best remedy is often not to ask the Court to destroy the entire procurement, but to ask it to cure the precise illegality.

That approach is more consistent with judicial restraint and public interest.

XXX. CAN THE HIGH COURT DIRECT THAT THE CONTRACT BE AWARDED TO THE PETITIONER?

Ordinarily, this prayer should be approached with caution.

The Court may quash an unlawful disqualification and direct reconsideration.

But directing the Government to award the contract to a particular bidder risks transforming judicial review into an exercise in contract-making.

Unless the facts are exceptional and the petitioner’s entitlement is legally clear, the more appropriate relief is often:

• fresh evaluation;
• reconsideration;
• restoration to the evaluation process;
• or compliance with the tender conditions.

The relief should therefore be carefully tailored to the defect established.

XXXI. A PURELY CONTRACTUAL DISPUTE IS NOT AUTOMATICALLY A WRIT DISPUTE

This distinction cannot be overstated.

Suppose the grievance is simply:

“The Government owes us ₹2 crore under the purchase order.”

That is ordinarily a contractual claim.

But if the Government:

• terminates the contract arbitrarily;
• blacklists the contractor;
• imposes a public-law penalty without natural justice;
• acts contrary to mandatory statutory requirements;
• or discriminates between similarly situated contractors,

the dispute may acquire a substantial public-law character.

The existence of a contract therefore does not automatically exclude Article 226.

Nor does the mere involvement of the Government automatically convert every contractual dispute into a constitutional one.

The Court will examine the nature of the right asserted and the character of the State action challenged.

XXXII. PUBLIC INTEREST: THE CONSTANT CONSIDERATION

Government procurement involves public money and public administration.

The Court therefore has to balance:

• the bidder’s rights;
• Government’s procurement requirements;
• public funds;
• timely delivery;
• public services;
• interests of successful bidders;
• interests of competing bidders;
• and procurement integrity.

This explains why courts may identify an illegality but nevertheless mould the relief so that essential procurement is not unnecessarily paralysed.

The object of judicial review is not to frustrate legitimate government procurement.

It is to ensure that public procurement is conducted according to law.

XXXIII. WHO SHOULD BE MADE A RESPONDENT?

A technically sound writ petition must identify all material parties.

Depending upon the case, respondents may include:

• GeM;
• the procuring Ministry or Department;
• the buyer organisation;
• the tendering authority;
• the relevant statutory authority;
• the evaluation committee, where appropriate;
• the successful bidder;
• other bidders whose rights may be affected.

A petition challenging a buyer’s tender decision but impleading only GeM may be fundamentally misconceived if GeM itself did not make the substantive decision.

Similarly, where the successful bidder’s contractual rights may be affected, its impleadment should ordinarily be considered.

XXXIV. TERRITORIAL JURISDICTION IN A DIGITAL PROCUREMENT DISPUTE

The fact that GeM operates online does not mean that a petitioner can select any High Court merely because the procurement was conducted digitally.

Article 226(2) permits exercise of jurisdiction where the cause of action arises wholly or partly within the territorial jurisdiction of the Court.

The relevant considerations may include:

• location of the procuring authority;
• place where the tender was issued;
• location of the decision-maker;
• place of evaluation;
• place where the impugned order was made;
• and the location of material consequences.

A petition should therefore establish territorial jurisdiction through real facts constituting the cause of action, rather than relying merely on the existence of an online GeM portal.

XXXV. THE DOCUMENTARY RECORD IS THE FOUNDATION OF A GE-M WRIT

A procurement writ is ordinarily decided substantially on the administrative record.

A properly prepared petition should therefore annex, as applicable:

For tender challenges

• GeM bid document;
• NIT;
• STC;
• ATC;
• corrigenda;
• technical specifications;
• eligibility criteria;
• petitioner’s bid;
• technical evaluation;
• disqualification communication;
• comparative statement;
• relevant Government procurement guidelines;
• representations;
• responses;
• award communication.

For suspension challenges

• incident notice;
• SCN;
• seller’s response;
• supporting documents;
• suspension/TM order;
• Incident Management Policy;
• appeal;
• GeM dashboard record.

For debarment/blacklisting

• SCN;
• reply;
• hearing notice;
• hearing record;
• final order;
• relevant contract;
• performance record;
• subsequent GeM action.

The objective should be to allow the Court to reconstruct the entire decision-making process from the record.

XXXVI. HOW SHOULD A GE-M WRIT PETITION BE PLEADED?

A senior-level procurement petition should avoid generic allegations.

The strongest pleading format is:

Fact → Rule → Departure → Prejudice → Legal consequence.

For example:

Fact: The tender required certification X.

Rule: Clause 8.3 required only certification X and did not prescribe certification Y.

Departure: The petitioner was disqualified because it did not possess Y.

Prejudice: Respondent No. 5 was not subjected to the same requirement.

Legal consequence: The evaluation departed from the published tender conditions and resulted in unequal treatment contrary to Article 14.

That is significantly more persuasive than:

“The action is arbitrary, illegal, mala fide and violative of Article 14.”

The latter may be the conclusion; it cannot substitute for the facts establishing it.

XXXVII. RELIEFS SHOULD BE STRATEGICALLY FRAMED

Depending upon the circumstances, relief may include:

Certiorari

Quashing:

• an unlawful tender condition;
• disqualification;
• suspension;
• debarment;
• blacklisting order;
• award;
• rejection order.

Mandamus

Directing:

• fresh evaluation;
• reconsideration;
• compliance with the tender;
• consideration of a representation;
• disposal of an appeal;
• restoration of participation.

Interim relief

Seeking:

• stay;
• status quo;
• permission to participate;
• restraint against award;
• restraint against implementation of suspension;
• restoration of GeM access.

The relief should correspond to the legal defect established.

A petition that asks for the entire tender to be quashed when the actual defect concerns one technical evaluation issue may unnecessarily invite judicial reluctance.

XXXVIII. THE RECENT GE-M JUDICIAL TREND

The developing case law demonstrates that courts are neither treating GeM as beyond judicial review nor treating every GeM dispute as warranting intervention.

A discernible pattern is emerging.

In Pavan Supply Corporation

The Calcutta High Court declined to quash a GeM SCN at the threshold, emphasising that the seller’s explanation should first be considered by GeM.

Lesson: Courts will not ordinarily short-circuit an administrative process merely because the seller disputes the allegations.

In Shree Durga Industry

The Calcutta High Court quashed GeM suspension where the action extended beyond the SCN and where materially identical incidents had not been explained consistently.

Lesson: GeM’s powers remain bounded by its own procedural framework and the requirements of natural justice.

In Intertek India

The Delhi High Court scrutinised the scope and proportionality of a GeM suspension that had extended across government procurement despite the underlying buyer-specific action.

Lesson: The breadth of the administrative consequence must have a rational connection to the underlying misconduct.

In Murali Manpower Agencies

The Telangana High Court found that a GeM tender and technical evaluation had departed from binding guidelines and violated Article 14, and ordered fresh evaluation.

Lesson: Procurement discretion ends where binding legal requirements begin.

In Acromax Industries

The Delhi High Court dealt with the urgency associated with a GeM suspension and required expeditious consideration of the seller’s appellate remedy.

Lesson: The existence of an internal remedy does not necessarily mean that a seller must suffer indefinite commercial prejudice while that remedy remains pending.

Taken together, these decisions demonstrate a nuanced judicial approach:

Deference to procurement expertise, but not deference to illegality.

XXXIX. A PRACTICAL LITIGATION MATRIX

A useful way of assessing whether a GeM dispute merits a writ petition is to ask the following:

Stronger basis for writ	Weaker basis for writ
Violation of mandatory procurement rule	Mere commercial disagreement
Defective or vague SCN	Mere dissatisfaction with outcome
Denial of meaningful hearing	Technical disagreement
Action beyond the SCN	Different interpretation of specification
Discriminatory evaluation	Merely being L1
Post-bid introduction of eligibility criterion	Tender condition being commercially inconvenient
Proven mala fides	Bare allegation of favouritism
Perversity/non-application of mind	Disagreement with expert opinion
Departure from binding policy	Minor procedural irregularity
Prompt challenge	Challenge after award
Early-stage procurement	Substantially performed contract
Serious public-law element	Pure contractual money claim
Proportionately tailored relief	Demand for automatic contract award

This is not a substitute for legal analysis, but it provides a useful preliminary framework.

XL. WHEN NOT TO FILE A WRIT PETITION

A responsible legal adviser must also identify situations in which litigation is unlikely to be productive.

A writ petition may be inappropriate where the real grievance is simply:

“The buyer preferred another technically qualified product.”

It may also be weak where:

• the petitioner is asking the Court to re-evaluate technical material;
• the tender condition is facially rational;
• the petitioner knowingly participated in the tender and challenged the condition only after losing;
• substantial delay has occurred;
• third-party rights have crystallised;
• an effective alternative remedy exists;
• the dispute involves extensive disputed questions of fact;
• mala fides are alleged without evidence;
• or the relief sought would seriously prejudice public interest.

The question should never be:

“Can we file a writ?”

The better question is:

“Is there a judicially reviewable illegality for which Article 226 is an appropriate and proportionate remedy?”

That is the proper professional inquiry.

XLI. THE SENIOR COUNSEL’S APPROACH: ATTACK THE PROCESS, NOT THE OUTCOME

The most important strategic lesson in GeM litigation is this:

A petition should not be framed as an argument that the petitioner deserved to win.

It should be framed as an argument that the State failed to follow a lawful decision-making process.

The distinction may be expressed as follows:

“The petitioner should have been selected” is ordinarily a weak judicial-review proposition.

Whereas:

“The petitioner was excluded on a criterion that was not contained in the tender, while another similarly situated bidder was evaluated under a different criterion”

is a potentially strong judicial-review proposition.

Similarly:

“Our product was technically superior”

is generally not enough.

But:

“The Evaluation Committee ignored the mandatory technical criterion prescribed in Clause 7 and applied a criterion appearing nowhere in the tender”

raises a genuine public-law question.

The difference is one of legal character, not merely drafting style.

XLII. CONCLUSION: THE HIGH COURT IS NOT A TENDER COMMITTEE—BUT NEITHER IS THE GOVERNMENT ABOVE REVIEW

Government procurement necessarily requires a substantial degree of administrative and commercial discretion.

The Government must be free to determine what it needs, how it will procure it, what technical standards it considers necessary and which bidder best satisfies the requirements of the procurement.

The constitutional court does not possess the institutional competence to substitute its own commercial preferences for those of the procuring authority.

That is why judicial restraint is a settled feature of Indian procurement law.

But judicial restraint must not be confused with judicial abdication.

Where a public authority:

• acts arbitrarily;
• discriminates between similarly situated bidders;
• acts mala fide;
• applies a criterion that does not exist in the tender;
• departs from a binding procurement rule;
• ignores material evidence;
• acts perversely;
• violates natural justice;
• exceeds its statutory or contractual authority;
• imposes a disproportionate penalty;
• or otherwise exercises governmental power for an impermissible purpose,

Article 226 remains an important constitutional safeguard.

The recent GeM jurisprudence demonstrates precisely this balance. The High Courts have declined to interfere where a seller merely disputes the merits of an ongoing administrative process, but have intervened where the procurement process itself has crossed the boundary into illegality, arbitrariness, procedural unfairness or disproportionate action.

The correct question in a GeM dispute, therefore, is not whether the High Court will interfere with government procurement.

It is:

Whether the decision complained of falls within the lawful area of governmental discretion.

If it does, the Court will ordinarily defer.

If it does not, Article 226 provides the constitutional mechanism by which that exercise of public power can be examined and, where necessary, corrected.

The objective of a well-drafted GeM writ petition should consequently not be to persuade the Court that the petitioner would have made a better commercial decision than the Government.

It should be to demonstrate, with precision and from the contemporaneous record, that the Government did not arrive at its decision through a process that the law permits.

That is the dividing line between a disappointed bidder’s grievance and a genuine case for judicial review.