The rejection of the petitioners' bid was justified based on their debarment for supplying substandard quality drugs, in line with the State's policy to keep such manufacturers out of the tender process.

JUDGMENT :

ARAVIND KUMAR, J.

1. By way of this petition under Article 226 of the Constitution of India, petitioners have prayed for following reliefs:-

A. YOUR LORDSHIPS may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus, or any other appropriate writ, order or direction, quashing and setting aside the impugned decisions/order/Scrutiny Report of Respondent No. 2 GMSCL dated 01.07.2022 in respect of Tender Notice No. GMSCL/D-24/2021-2022 and Tender Enquiry No. GMSCL/D-686/RC/2021-22 (ON RATE CONTRACT BASIS) and direct the Respondents to consider the price-bid of the Petitioners:

B. Pending hearing and final disposal of the Petition, YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of the impugned decisions/Scrutiny Report of Respondent No. 2 GMSCL dated 01.07.2022 in respect of Tender Notice No. GMSCL/D 24/2021-2022 and Tender Enquiry No. GMSCL/D 686/RC/2021-22 (ON RATE CONTRACT BASIS) and further be pleased to stay the further scrutiny of Tender and also direct Respondents not to issue Acceptance Letter and allot the Tender and further direct the Respondent No.2 to reconsider the Representation applying the Guidelines dated 02.11.2021 issued by Government of India, Department of Expenditure, Ministry of Finance, Procurement Policy Division;

C. YOUR LORDSHIPS maybe pleased to grant ex-parte ad interim relief in terms of Para 8(C);

D. YOUR LORDSHIPS may be pleased to grant such other and further relief/s, as may be deemed fit by this Hon'ble Court, in the interest of justice.

2. Facts in brief as narrated in the Special Civil Application are that petitioner No.1 is a company registered under the provisions of the Indian Companies Act, 1956 and is being represented by its authorized person, i.e. petitioner No.2. Petitioner company is engaged in the manufacture, supply and sale of pharmaceutical products across the country over past 26 years. Petitioner No.1 had a tremendous growth track record and has been considered to be the best pharmaceutical company in India. Petitioner No.1 company has received best manufacturer SME since 5 years till the year 2022 from Times Group and co-sponsored with Ministry of MSME. Petitioner is having its own manufacturing facility with an ultramodern Quality Control Laboratory and is a well-equipped company in the manufacturing field of pharmaceuticals. Petitioner No.1 has GMP approval of the State. Plant has also been approved from foreign Drug Authority like NAFDAC of Nigeria, FDB of Ghana, DPM of Ivory Coast, PMPB of Malawi and several other approvals from other countries. Product of the petitioner company was available even in foreign countries as well, as indicated in paragraph 2.2 of the Special Civil Application.

3. Respondent No.2 - Gujarat Medical Services Corporation Limited (for short “GMSCL’) is a procuring agency of Government of Gujarat, which procures drugs, surgical items, etc. from different manufacturers and distributors for supply of such products to the Government hospitals throughout State of Gujarat. A monopoly has been created by the State in the field of procurement and supply of drugs and surgical items to the Government hospitals across the State. In furtherance of this function, respondent No.2 floated a tender bearing Tender Enquiry No.GMSCL/D-686/RC/2019-20 inviting for Tablet, Capsule, Injection and Miscellaneous other drugs items (64 items in number) in the month of December 2021. Offers were invited from reputed manufacturers for supply of such medicine drugs for a period of two years on rate contract basis. Said tender was floated with due date and time of submission of technical bid and commercial bid (online) prescribed as 12.1.2022 upto 1800 hours, due date for physical submission of technical supporting document inclusive of document was 13.1.2022 upto 1800 hours, whereas, due date and time for opening of tender bid (online) as 17.1.2022 at 1500 hours. Petitioner accordingly submitted its bid for four items, i