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2013 Supreme(Kar) 420
High Court of Karnataka
MOHAN M. SHANTANAGOUDAR, J.
Wipro GE Healthcare Private Limited rep by its Authorised Signatory & Government Sales Manager P. Sandeep (Karnataka & Andhra Pradesh) & Another
Versus
National Institute of Mental Health & Neurosciences & Others
Writ Petition No. 23762 of 2013 (GM-TEN) C/W Writ Petition No. 14573 of 2013 (GM-TEN)
Decided on : 19-07-2013
For the Appearing Parties:Naganand, Sr. Counsel for Hegde Ganapathi Narayan, DUA Associates, K.G. Ragavan, Sr. Counsel for T.S. Amarkumar, for M/s. Lawyers Inc.; A. Madhusudana Rao, Udaya Holla, Senior Counsel for Mrs. Nalina Mayegowda for M/s. Poovayya & Co. Advocates.
Headnote:CONSTITUTION OF INDIA - Articles 226 & 227: [Mohan. M. Shantanagoudar, J] Tender - Challenge to decision of the first respondent accepting the technical bid of the second respondent and opening of the financial bid of the second respondent -- Prayer of the petitioners for opening and considering their financial bid - Held, The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. In the matter on hand, the Court does not find of them. The public interest demands that the first respondent should purchase the best-suited model/system, keeping in mind the public interest, the action is neither arbitrary, discriminatory, mala fide nor actuated by bias. Law should take back seat to give way to the larger public interest. The first respondent has taken decision on the basis of the recommendation of the Technical Expert Committee. Therefore, it is not open for the manufacturer to contend that the decision taken by the Experts Committee is bad in the eyes of law. It is also not open for the petitioners to contend that sequential model ought to have been preferred to the simultaneous model.
On facts held, Looking to the totality of the facts and circumstances, the Court finds that the decision making process of the first respondent/NIMHANS in the matter on hand is just and proper. The decision is taken in most transparent manner by the first respondent on the basis of the recommendations of the Technical Committee consisting of experts in the filed not only from within the first respondent/institution but also from the reputed institutions all over the Country.
1. These writ petitions are filed praying for approval of the petitioners' technical bids in respect of the notification issued by the National Institute of Mental Health and Neurosciences ('NIMHANS' for short) for purchase of Integrated Simultaneous/Sequential 3T MR PET Scanner System. Consequently, the petitioners have prayed for direction to NIMHANS to open and consider the financial bids of the petitioners. Certain consequential reliefs are also prayed.
2. NIMHANS is one of the premier health and research institutes in India and is a deemed University under the provisions of the University Grants Commission Act. The NIMHANS invited Expression of Interest from prospective bidders by letter dated 23.8.2012 for supply, installation, commissioning etc., of "A New State of Art, Top of the Line 3T MR PET MRS Scanner System with Latest Generation Gradient System". Petitioners as well as Respondent -Siemens Limited ('SIEMENS' for short) submitted their responses. It is relevant to note that the petitioners and the respondent - SIEMENS are the only companies in the world who are said to be manufacturing and supplying the integrated simultaneous/sequential 3T MR PET Scanner System. The Expressions of Interest received from the bidders were opened on 14.9.2012. Thereafter pre-bid meeting was held on 21st October 2012 in which the petitioners and SIEMENS were participated. The aforementioned three bidders and NIMHANS agreed on a common list of specifications.
The Tender Notification dated 16.1.2013 was issued by NIMHANS for Integrated Simultaneous 3T MR PET Scanner System. In response thereto, petitioner in Writ Petition No.14573/2013 viz., Philips Electronics India Limited ('PHILIPS' for short) issued letter dated 21.1.2013 to NIMHANS requesting for certain amendment to the tender document including deletion of "The PET detectors should be housed within the MR magnet". Essentially, the PHILIPS requested that while simultaneous 3T MR PET were invited, sequential 3T MR PET be included in the scope of the tender. Thereafter the Corrigendum was issued on 8.2.2013 (vide Annexure-C in Writ Petition No.14573/2013) to the Tender Notification.
Pursuant to the notification dated 16.1.2013, NIMHANS received only a single bid from SIEMENS. Since there was a single bid, NIMHANS decided to re-notify the tender item and as such second global tender notification dated 19.2.2013 was published by NIMHANS inviting bids. Technical Committee recommended certain modifications to the specifications. Pursuant to the second notification, only two bidders viz., WIPRO and SIEMENS participated. Both did not qualify the technical requirements.
Thereafter NIMHANS issued another Tender Notification (third Call) dated 16.3.2013 inviting bids once again for simultaneous 3T MR PET. PHILIPS issued another letter dated 8.3.2013 (signed on 18.3.2013) vide Annexure-E in Writ Petition No.14573/2013, requesting NIMHANS to include sequential 3T MR PET also. In the meanwhile, petitioner in W.P. No.23762/2013 viz., Wipro GE Healthcare Private Limited ('WIPRO' for short) also wrote letter to the Joint Secretary to the Government of India requesting certain changes in the tender conditions. Thereafter a Corrigendum was issued by NIMHANS on 21.3.2013 (vide Annexure-F in Writ Petition No.14573/2013) modifying the tender condition viz., "Supply, Installation, Commissioning, Demonstration of Performance, Training of Personal and Provisions of Guarantee of Performance State of Art, Top of the Line, Integrated Simultaneous/Sequential 3T MR PET Scanner System", meaning thereby NIMHANS accepted the contentions of the petitioners that bidders offering sequential technology should also be allowed to participate in the tender.
The technical bids were opened on 23rd March 2013 in presence of representatives of all the bidders. NIMHANS called on the bidders by sending e-mail dated 23.3.2013 to depute their representatives to attend the purchase committee meeting scheduled to
