JUDGMENT :

S. RAVINDRA BHAT, J.

Facts

1. The Petitioner questions the award of contract/tender to the second respondent (hereafter referred to in brief as “Verve”) by the Union of India in the Ministry of Health & Family Welfare, National AIDS Control Organization, the first respondent (“NACO” hereafter). NACO published a tender being IFB No. RITES/MSM/NACP/I5/2014 (“Tender”) involving international competitive bidding for procurement of tablets Buprenorphine 2mg and 0.4mg calling for offers from interested parties. The Petitioner had been declared as an L2 in the process. Its grievance is that procurement from L3, Verve, should not be resorted to. This petition, consequently, claims appropriate directions to quash the award of contract to Verve, and further directions that NACO should procure the quantities of the subject medication from the Petitioner.

2. The tender for procurement of the product, 2mg and 0.4 mg. Buprenorphine tablets, which is a part of the AIDS treatment range of pharmaceuticals, was issued in October, 2014. The tender called for bids in respect of a quantity of 9,67,25000 tablets. Three bids were received in response to the Tender and opened on 02.12.2014. The bidders were (a) Mann Pharmaceuticals Ltd, Ahmedabad; (b) Rusan Pharma Ltd., Mumbai; and (c) Verve. The Tender for 2mg Buprenorphine tablets was awarded to Mann Pharmaceuticals; the Petitioner was declared L2 and Verve, declared as L3. As far as the Tender for 0.4mg Buprenorphine tablets is concerned, it was awarded to the Petitioner as L1 on 08.01.2015. In February/March 2015, it transpired that Mann Pharmaceuticals Ltd. had been blacklisted/debarred by certain State health authorities during the pendency of the Tender period, a fact that it had required to disclose in terms of the Tender (Sl. No. 10 of Checklist at pg. 205-206 of the Bid Documents). As a consequence, the first respondent, placed a Purchase Order dated 10.07.2015 on the Petitioner (who was L2 in the Tender for 2mg tablets) for supply of 1,50,00,000 (1.5 Crore) tablets of 2mg Buprenorphine at Rs. 2.97/- per unit totaling Rs. 4,67,77,500/- inclusive of taxes. Accordingly, 1,50,00,000 (1.5 Crore) tablets of 2mg Buprenorphine were supplied by the Petitioner to NACO in 2015.

3. After the completion of the above supply of 2mg tablets on or about19.04.2016, NACO again approached the Petitioner for further procurement of 1,50,00,000 (1.5 Crore) tablets of 2mg Buprenorphine and enquired, inter alia, whether the Petitioner was able to match the L1 price of the Tender opened on 02.12.2014 or offer lower than the price offered by the L1 bidder (Mann Pharmaceuticals). In response, the query, by its letter dated 20.04.2016 confirmed, inter alia, that it would supply Buprenorphine Tablets 2mg and match the L1 price of the Tender and that it accepted the terms and conditions of the Tender opened on 02.12.2014 for supply and payment. NACO by its letter dated 21.04.2016 acknowledged receipt of letter, dated 20.04.2016 of the Petitioner. In response to said letter dated 21.04.2016 of NACO, the Petitioner submitted the requisite Affidavit dated 21.04.2016. Subsequently, on or about May 24, 2016, on enquiry from NACO the Petitioner was told that the order has been placed on Verve, the third respondent, who was L3 in the original bidding process.

4. The Petitioner approached this court, aggrieved by the Purchase Order issued by NACO to Verve (the second respondent) for procurement of 1,50,00,000 tablets of 2 mg Buprenorphine and has prayed for quashing this order. It is contended that once NACO offered to purchase the quantities of the medication at a cost lower than that of L1, Mann Pharmaceuticals, NACO’s action in proceeding to place the order on L3 in the original bidding process, i.e., Verve, is arbitrary, illogical and discriminatory.

5. Mr. Arvind Nigam, learned counsel submits that the order for procurement of 1,50,00,000 (1.5 Crore) 2mg Buprenorphine tablets from the second respondent, Verve, who was