High Court of Punjab and HaryanaCWP/12161/2017allowed

M/S Remi Sales And Engineering Ltd. v. State Of Haryana And Others

2018-01-30Mr. Justice Surinder Gupta,Mr. Justice Arun Monga15 pages

Gurbax Singh 2018.01.30 17:08

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A written statement has been filed on behalf of respondent Nos. 1 and 2 by Dr. Amit Kumar Agrawal, IAS, Managing Director, Haryana Medical Services Corporation Limited, wherein it has been inter alia stated that respondent No.2 communicated the report submitted by the technical committee dated 18.1.2017 to both the bidders and invited objections. The technical committee advised on 8.2.2017 to file the objections raised by the petitioner and to seek clarification regarding electrical safety standard from respondent No.3. The technical committee gave its recommendation to file the objections in view of clarification sought from respondent No.3 and thereafter the financial bid was opened on 11.2.2017. The high powered

committee also filed the representation put up by the petitioner. Even the Health Minister, Haryana vide order dated 3.5.2017 decided to file the representation filed by the petitioner. According to respondent No.2, since the petitioner did not challenge all these orders, the present writ is not maintainable. As per report of the technical committee, the live demonstration of quoted model of respondent No.3 was satisfactory as per requirement of Technical specification whereas demonstration of model of the petitioner was not satisfactory. It was also stated that the technical committee after examining the response of respondent No.3 held that the electrical safety standard i.e IEC 61010-1 complied by respondent No.3 equipment was more specific than the asked standard in NIT and thus was acceptable.

The matter with regard to purchase of 16 nos. of refrigerated cryofuge/centrifuge was also placed before the special high powered purchase committee and it was considered to file the representation. The committee then called the representative of respondent No.3 for negotiation and thereafter, it was decided to award the contract to supply refrigerated centrifuge/cryofuge to it. On these premises, prayer for dismissal of the petition has been made.

Reply was also filed on behalf of respondent No.3-Brightway Agency through its proprietor Shri Dharam Pal Gupta wherein it has been inter alia stated that respondent No.3 is not a juristic person and the petition in the name of the said proprietorship firm is not maintainable. The petitioner has not assailed the award issued in favour of respondent No.3 and supply order dated 15.6.2017. Further respondent No.3 had complied with the essential technical specifications as required for the said equipment by respondent Nos. 1 and 2. As per report of the technical committee, the equipment of the petitioner had deficiencies which were serious in nature

keeping in view the operator and blood component safety. In view of the expert committee report, the best products were selected and the order was awarded to respondent No.3.

Replications were filed by the petitioner to the two written statements controverting the averments made therein and reiterating the averments made in the writ petition.

Learned counsel for the petitioner submitted that respondent No.3 being not the original manufacturer or the agent thereof as required under Section 4.1 of the NIT, was not eligible to submit the bid. The entire documents submitted by respondent No.3 had not been filed on behalf of the manufacturer as required under Section 4.2(b) of NIT. Respondent No.3 did not qualify the eligibility criteria and other essential conditions of the bidder as per NIT including Clauses 17, 18 and 21 thereof. It failed to produce the required certificates issued by the competent authorities and other documents as required under NIT.

On the other hand, learned counsel for respondent No.3 submitted that the petitioner was required to show that it fulfilled the conditions and then only the writ petition could be held to be maintainable. The requirement was of 12 bags whereas the petitioner had offered for 8 bags. The safety standards were better in IEC 61010 instead of IEC 60101. The technical committee opined that the certificate Annexure R.3 was more specific than standard asked in Annexure R.2/10. 8.

We have heard learned counsel for the parties. 9.

Before proceeding to deal with the controversy involved in the present case, we may notice the settled legal position on the issue. Scope of

judicial review in 1 1 . .

6 1 )BSN Joshi v. Nair Coal Services Ltd. 2006(11) SCALE 526, Jagdish Mandal v. State of Orissa and Others, 2007(14) SCC 517 and Maa Binda Express Carrier and another v. North East Frontier Railway and others, (2014) 2 CHN 96 (SCC), it . * in tender or contract matters, interference by courts is very limited. Power of judicial review will not be invoked to protect private interest at the cost of public interest or to decide contractual disputes. I . 1 . 6 1 G 1 . 11 * 6 ) 1 . .

- . 16 1 %, However, exception is there that interference by the courts is permissible only if the process adopted or decision made is malafide or intended to favour someone or the same is so arbitrary and irrational that no responsible authority acting under the law could have arrived at it or it affected the public interest.

( 1 - 6 . 1 5 6 . 1 . 1 . . 1

11.

Having crystalised the legal position, while adverting to the factual matrix in the present case, it would be advantageous to reproduce the relevant clauses/conditions in the Notice Inviting Tender, which read thus:- "Technical Specifications -Refrigerate Cryofuge/Centrifuge 1 to 16.xxxxxxxxxxxx

17. Electrical safety conforms to standards for electrical safety IEC-60601/IS-13450.

18. Should be USFDA or CE approved product equivalent international authority.

19. & 20.xxxxxxxxxx

21. Automatic Line Voltage Corrector/Voltage Stabilizer: A line voltage corrector of appropriate rating should form part of standard configuration. Copper would single phase automatic line voltage corrector conforming to IS:9815 (Pt. I) 94 with latest amendments or equivalent international standards fitted with a voltmeter and switch to indicate oputput/input voltage as under:- Capacity rating: 10KVA: As per the requirement of the equipment. Input Voltage: 140 to 280 volts, 50 cycles, Output Voltage: 220 volts + 10% volts. Input - output voltmeter and ampere meter, Protection: High low voltage cut - off, overload and short circuit protection. The equipment should be supplied with 2 meter chord at input and fitted with plugs of appropriate rating (15 Amp.) make of the line voltage corrector shall be indicated.

Section IV: Eligibility criteria 4.1 Eligibility criteria i) Original manufacturers can apply.

ii) Authorised Distributors, Agents and direct importers with authorization letter from original manufacturer can apply.

iii) Joint ventures mand Consortiums allowed only in Turnkey projects.

4.2 Manufcturing and Marketing Experience a) Manufacturers who are bidders:

i) The manufacturers have to provide documentary evidence certifying aht he is manufacturing the item under consideration for the past five years (not necessarily of the same specifications).

ii) Manufacturing experience certified by CA alongwith supporting documents to be submitted.

iii) Manufacturers must have manufactured and supplied a similar model quoted in each item of the Schedule of Requirements either himself or through any other authorised dealer to the extent of 100% quantities mentioned in the Schedule of requirements in the past twenty four months nor 50% quantities mentioned in the schedule of requirements in past twelve months to government or private teritiary care hospitals in India from the date of closure of tender date. This has to be certified by CA in the form of certificate with supporting documents.

iv)The bidder has to submit an affidavit that he and his manufacturer have not been blacklisted by government of Haryana or by any other state/Central Government organization.

v) Bid will be accepted for entire quantity.

b) Bidders who are not manufacturers:

i) if the bidder is not a manufacturer then the bidder should be duly authorised by the manufacturer who meets the above criteria (4.2a).

ii) In the authority letter the manufacturer has to declare: that this bidder is the sole authorised bidder for this tender.

That I am fully responsible for all the documents submitted by this bidder.

That I am fully responsible for supply, installation/warranty and CMC.

Space parts of the quoted model will be available for 10 years.

In case the bidder does not abide by the rules and regulations of agreement then I am fully responsible. iii) The Bidder should provide documentary evidence indicating that he is dealing in medical equipments/medical furniture for the past three years. iii) Turnover statement:

Turnover of the bidder should be atleast 3 times the total tender value in any one of the past three financial years. Certified by the Chartered Accountant with supporting documents to be submitted."

12.

A perusal of the above shows that in order to be eligible for the work, the bidder should be original manufacturer or authorized distributor, agent or direct importer with authorization letter from the original manufacturer. The manufacturer has to provide documentary evidence to the effect that he is manufacturing the item under consideration for the past five years. If the bidder is not a manufacturer then he should be duly authorized

by the manufacturer who meets the above criteria (4.2a). With regard to the technical specifications, it was provided in Clause 17 that electrical safety should conform to the standards for electrical safety IEC -60601/IS-13450. The product should be USFDA or CE approved equivalent international authority as per clause 18. Clause 21 provided automatic line voltage corrector/voltage stabilizer according to which a line voltage corrector of appropriate rating should form part of standard configuration. 13.

Admittedly, in the present case, the respondent Corporation invited bids for supply, installation and commissioning of equipment "Refrigerated Cryofuge/Centrifuge quantity 16 units for various government hospitals of Haryana at rate contract for two years. The essential technical qualifications were contained in part III of the NIT specifying the standards of the equipment out of which specifications mentioned in clauses 17, 18 and 21 were essential and relevant. As noticed hereinbefore, Clause 17 dealt with electrical safety standards for IEC-60601/IS-13450. As per Clause 18, the product was to be USFDA or CE approved equivalent to international authority. Section 21 dealt with capacity rating of the product. Respondent No.3 had not complied with those conditions. The eligibility criteria was contained in sections 4.1 and 4.

2 of Part IV of NIT reproduced above. As per Section 4.1(i), only original manufacturer or authorized distributer, agent or direct importers with authorization letter from original manufacturer could apply. Respondent No.3 being neither original manufacturer nor authorised agent was not eligible to submit the bid in question without the authorization letter as required under eligibility criteria in Section 4.2(b) of the NIT. Respondent No.3 had attached the authorization issued by M/s Thermo fisher Scientific India Pvt. Limited which was not a manufacturer company.

authorities and other documents as required under NIT. On 28.12.2016, respondent No.2 issued a letter requiring live wet demonstration of the equipments to be held on 17.1.2017 at Panchkula but the same could not be conducted because the place had no proper infrastructure, facilities or the licenses and blood bags. Thus, without considering the petitioner, the bid was awarded in favour of respondent no.3. In view of the relevant conditions of the NIT, respondent No.3 was neither eligible nor qualifying bidder. Respondent No.3 neither submitted any certificate from IEC nor was so considered by the technical committee. Respondent No.

3 in its bid in compliance to Clause 17 had submitted that "covered under IEC 61010 IEC CB Test" which was not in consonance with the required essential technical standards as was evident from the list of standards issued by the International Electro Technical Commission, according to which the above standards are meant for electrical equipment for measurement, control and laboratory use whereas IEC-60601 is meant for medical electrical equipment. With regard to Clause 18 that the product should be USFDA or CE approved, the same was not supported by valid certificate by respondent No.3. Further, clause 21 was left blank. Thus, respondent No.3 did not comply with the conditions in Clauses 17, 18 and 21 of the NIT, with regard to essential technical standards i.e.

IEC 61010 IEC CB Test, CE Certificate from TUV and no supporting document was to be left blank respectively. Further, according to the petitioner as averred in para 6JJ, respondent No.3 who allegedly had submitted the bid on behalf of Thermo Fisher Scientific India private Limited quoted the rate to be 35 lacs per unit whereas the petitioner had quoted and was ready to supply the same equipment at the rate of 15 lacs per unit which was almost 40% of the amount as quoted by respondent No.3. Thus, mode adopted by the selection committee of respondent No.

cannot be ruled out as inspite of the disqualification and non eligibility and non compliance of the essential standard specifications required in the NIT, selected the bid of respondent No.3. Thus, the action of the official respondents in selecting respondent No.3 as successful bidder is unsustainable and falls under the exception carved out by the Apex Court in the aforementioned decisions noted above.

14.

A specific query was made to the learned counsel for respondent Nos.1 and 2 as to whether respondent No.3 had started functioning. The answer was in the negative.

15.

In view of the legal and factual position narrated above, the action of the official respondents in selecting respondent No.3 as successful bidder and rejecting the petitioner cannot be sustained. Accordingly, the petition is allowed. The impugned order dated 25.1.2017, Annexure P.10 is quashed. However, it will be open for the official respondents to invite fresh tenders in accordance with law.

s (Ajay Kumar Mittal) Judge January 30, 2018 (Amit Rawal) 'gs'

Judge #3 " . "