Back
2024 Supreme(Cal) 738
IN THE HIGH COURT AT CALCUTTA
Sabyasachi Bhattacharyya, J.
Swear Healthcare Private Limited and Anr. – Petitioners
Versus
The State of West Bengal and others - Respondents
W.P.A. No. 2784 of 2023
Decided On : 29-01-2024
Advocate Appeared:
For the Petitioner: Mr. Shailendra Jain, Ms. Swati Agarwal
For the Respondent: Mr. Sk. Md. Galib, Ld. Sr. Govt. Adv., Ms. Sujata Mukherjee, Mr. K. Bhattacharjee, Mr. Rezanul Hossain, Mr. Parvez Hossain
IMPORTANT POINT
The authority floating the tender is the best judge of interpreting the tender document and assessing the quality of products, and judicial restraint should be exercised in reviewing administrative decisions.
Headnote:
Tender Process - Surgical Gloves - Memorandum No. 2320-F(Y) - Clause 21 of Tender Document - Bureau of Indian Standards - Judicial Restraint in Administrative Action
Fact of the Case:
The petitioner company participated in a tender for procurement of Surgical Gloves. The challenge was in respect of the opportunity given to rectify deficiencies and the method of sampling done after the technical bids were opened.
Finding of the Court:
The court found that the opportunity given to rectify deficiencies and the sampling method were in line with the Memorandum No. 2320-F(Y) and Clause 21 of the Tender Document. The court emphasized the importance of quality and the authority's discretion in interpreting the tender document.
Issues: Opportunity given to rectify deficiencies, method of sampling, adherence to government policy, and interpretation of quality standards.
Ratio Decidendi: The court upheld the authority's discretion in interpreting the tender document and the importance of quality in the tender process.
Final Decision: The petition was dismissed without any order as to costs.
JUDGMENT :
Sabyasachi Bhattacharyya, J.
1. The petitioner no. 1-Company, having petitioner no. 2 as one of its Directors, participated in a tender floated by the respondent-Authorities for procurement of Surgical Gloves for two years. The tender contemplated two categories of gloves. The present challenge has been preferred in respect of Category No. G-2.01/C, in short referred to as “Sterile Gloves”.
2. The petitioner no. 1 turned out to be eligible at the technical stage of the tender. However, thereafter a Shortfall Notice was published by the Tender Issuing Authorities, granting opportunity to the participants with regard to the Sterile Gloves to rectify their defects/deficiencies, particularly pertaining to non-submission of proper documents. The petitioner no. 1 did not have any such deficiency. It is argued that the said additional opportunity to the bidders to rectify their major drawbacks was de hors the tender and gave undue advantage to otherwise ineligible bidders. By referring to the private respondent, which ultimately came out to be successful, it is argued that although the petitioners? financial bid was lower than the private respondent, the latter was ultimately selected and given the work, having cured its deficiency solely due to the opportunity so given.
3. It is argued that the deficiency of the private respondent was in non-submission of MD-5 or MD-3, which were essential documents. As per the tender document, the bid was to be rejected for non-submission of such documents.
4. Event thereafter, samples were sought from the eligible participants. The petitioners argued that at the stage of sampling, testing was done admittedly by a group of doctors manually, without taking resort to any mechanical process to assess the quality of the gloves. Merely based on such testing, the petitioners? bid was ultimately rejected on the ground that the pre-powdering was less and stretchability was not up to the mark. Such technical tests could not have been undertaken merely by manual examination, it is argued.
5. Learned counsel places reliance on a note at the bottom of Table-1 of a document of the Bureau of Indian Standards which provides that no further testing is required if accompanied with the Test Certificate or ISI mark. It is argued that the petitioners submitted BIS and other certificates, which more than satisfied the required eligibility criteria. Hence, the further sample testing was de hors the provisions of the tender itself.
6. Learned counsel for the petitioners places reliance on a judgment of this court in Saheli Nandi Vs. Union of India and Others, reported at 2023 SCC OnLine Cal 4953, where it was held that the goal posts cannot be changed once the game has begun. A tender process, it was observed, can be interdicted in judicial review under certain circumstances such as the decision or act of the tender issuing authority being arbitrary, mala fide, tailor-made to suit a particular bidder or violative of public interest. If the respondent-Authorities have altered the cardinal premise of the tender after all the bidders submitted their bid, such act was held to be ex facie arbitrary. In the present case as well, it is submitted, the short-fall notice and sampling methods were introduced after the date of opening of the technical tender and, as such, the said method should be set aside and the tender be reopened from the technical stage.
7. In answer to the argument of the respondents that the petitioners had been blacklisted, learned counsel for the petitioners places a Division Bench Judgment of the Allahabad High Court which had set aside the said blacklisting order. Thus, it is argued that the method adopted by the respondents should be set aside, being arbitrary and tailor-made to suit the successful bidder.
8. Learned counsel for the State places reliance on N.G. Projects Limited Vs. Vinod Kumar Jain and others, reported at (2022) 6 SCC 127, where the Supreme Court had laid down the principle that the a
