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2013 Supreme(Bom) 1562
High Court of Judicature at Bombay
S.J. VAZIFDAR & M.S. SONAK, JJ.
Philips Electronics India Ltd.
Versus
The State of Maharashtra, through the Medical Education & Drugs Department & Others
Writ Petition No. 1116 of 2013
Decided On : 14-08-2013
For the Petitioner: Janak Dwarkadas, Sr. Counsel a/w. Kunal Vajani, Ankit Virmani,
Chirag Kamdar, Kunal Mimani i/b. Wadia Gandhy & Co., Advocates. For the Respondents:R1 to R3, P.G. Lad, AGP, R4, Venkatesh Dhond, Sr. Counsel a/w. Shailesh Mendon, Shahzad Kazi, Deepak Rai, Naishad Bhatia i/b/ Negandhi Shah, Himayatullah, Advocates.
Headnote:Constitution of India - Article 226 - Grant of tender. - Where all reports of Expert Committee confirmed that bid of respondents was responsive and met with requirements stipulated in tender documents therefore grant of tender in favour of respondent is valid. - The report also indicates that the technicians did not find the petitioners machine to have worked satisfactorily and therefore called upon the petitioners to arrange the further demonstration. The petitioner therefore, gave a demonstration of its machine on 16th October, 2012. The same was found in order. Accordingly, under cover of a letter dated 19th October, 2012, the reports of the first respondent’s experts were forwarded to the DMER.
The Committee studied the specifications and tender documents and submitted a report. The Committee confirmed that the model quoted by respondent No. 4 met the specifications and complied with the requirements as given in the specifications. The Committee, in fact, observed that the bids of the petitioner and the respondent No. 4 should be accepted as complying with the specifications.
It is not possible for this Court in exercise of powers under Article 226 to sit in appeal over the decision of respondent Nos. 1, 2 and 3 and the experts appointed by them.
The bid of the respondent No. 4 ought to be rejected on the ground that respondent No. 4 had disclosed an element of the price bid in its technical bid which was contrary to clause I of the Commercial bid, which stipulated that no price should be quoted in the technical bid and that if any price is quoted in the technical bid, the entire tender would be considered invalid.
1. The petitioner seeks a writ of certiorari to set aside the decision of respondent nos.2 and 3 accepting the technical bid of respondent no.4 and an order restraining them from awarding the contract and/or implementing the contract in furtherance of the e-tender. The petitioner has also sought a writ of mandamus directing respondent nos.2 and 3 to award the contract under the tender in its favour. Respondent no.2 is the Directorate of Medical Education and Research, respondent no.3, is the Director of the respondent no.2 and respondent no.4 is Siemens Ltd.
2. The respondent no.2 floated a tender for the procurement of MRI Machines “3-TESLA”. The two bid system was followed. The first being a technical bid and the second being a commercial bid. Clause 10 of the TECHNICAL BID ( PART-I) is as under:
10. “USERS LIST:-
The tenderer should submit user list of Quoted Model as per Annexure -IV:”
...
Clause 1, 3 and 11 of the COMMERCIAL BID (PART -II) clause 3(i)(ii) reads as under:-
1. No price should be quoted in Part I (Technical Bid). If any price is quoted in technical bid, the entire tender will be tender as INVALID.
11. Annual Maintenance Contract (Labour Charges)/ Comprehensive Annual Maintenance Contract (Labour with
3.i) A hands on working demonstration is essential before opening part No.2 (commercial bid) Unsatisfactory performance as demonstration will disqualify the tenderer. Spares):-
The tenderer will have to agree to enter into a annual maintenance contract (AMC) (Labour Charges) @ 1 % of the ordered value up to Rs.10 lacs of the equipment for Mumbai and 3% for all other places . For more than Rs.10 Lacs ordered value, at 0.5% for Mumbai and 1% for all other places .
Where required tendered will have to agree for comprehensive maintenance (CMC) inclusive of all spares @ 5% of the ordered value of the equipment. The period of such AMC/CMC will be of 8 years after completion of warranty period. In case of noncompliance of AMC/CMC the supplier will be liable to pay a penalty. Such penalty shall be recovered from the amount of bank guarantee submitted as per sr.no.10 payment for AMC/CMC on yearly basis will be made by the user institution, at the end of year after satisfactory performance report from the end user.”
3. The technical specifications are set out in Annexure IX. Clause 9 of Annexure IX in so far as it is relevant reads is as under:-
9. APPLICATION SOFTWARE: All available softwares at the time of purchase should be provided in their latest version with software upgrades regularly till the machine is in use. All the routine sequences and complete, neuro suite, orthosuite, cardiac imaging suite, body imaging suite, breast imaginf suite and oncology suite should be made available.
oo. System should preferably offer Exam automation, Tool for Brain, Spine, Knee and Shoulder Imaging. (DOT or Smart Exam or similar software should be made available if present or may be quoted separately.)”
We were informed that the petitioner has developed the “Smart Exam” software and respondent no.4 Siemen’s Limited has developed the DOT software.
4. The petitioner contends that at the pre-bid meeting held on 16.6.2012, it was decided that it would quote its model with Smart Exam Software and respondent no.4 would quote its model with the DOT software. This alleged decision is not reflected anywhere including in the minutes, which the petitioner claims it received only on 23.3.2013 in response to an RTI application.
5. On 22.8.2012 the petitioner and the respondent no.4 submitted their bids. On 9.10.2012 the bidders demonstrated their machines. The petitioner states that it was not present when the demonstration of the machine of respondent no.4 took place. A further demonstration of the petitioner’s machine took place on 16.10.2012.
6. Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of the petitioner, contended that the fact that clause 9(oo) referred to the DOT and the Smart Exam Software (SES) in Clau
