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2018 Supreme(Gau) 1530
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
UJJAL BHUYAN, J.
INDIA MEDTRONIC PVT LTD REP. HEREIN BY ITS AUTHORISED REPRESENTATIVE AND AREA MANAGER SRI BISWAJIT CHAKRABORTY - Petitioner
Versus
THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HEALTH AND FAMILY WELFARE DEPARTMENT AND ORS – Respondent
WP(C) 1648 of 2018
Decided On : 29-10-2018
For the Petitioner: MR. S BORTHAKUR
Headnote:
Companies Act, 1956 - Section 394 and 232 - Drugs and Cosmetics Act, 1940 - Constitution of India, 1950 - Article 226 - Health Department - Petitioner failed to qualify in Financial Bid evaluation and rejected - Bidders were not technically eligible - Matter relates to award of contract for supply of essential surgicals and sutures pursuant to e-tender issued by office of Mission Director National Health Mission, Assam - Though as many as items were put to tender, present lis is confined to items - Whether experience of a subsidiary company could be considered as experience of parent company - Whether experience of subsidiary company could be treated as experience of bidder as per NIT. Referring to New Horizons Limited (supra), Delhi High Court observed that Supreme Court was considering a case where past experience was not considered as a condition of eligibility for consideration of tender but was to be examined at a subsequent stage of tender evaluation - Whether experience of constituent joint venture partner of a joint venture company should be taken into account as experience of joint venture - Whether tender committee could have rejected technical bid of petitioner at stage of evaluation of price bid it would be relevant to refer to Clause-6 (B) of tender conditions which clearly mentions that price bids of only those bidders whose technical bids are found to be acceptable (after technical and commercial evaluation) will be opened online – Held, Tender committee meeting held though 36 bidders were shortlisted including the petitioner it was mentioned that all items quoted by said bidders were not technically eligible due to absence of three years’ market standing certificate as well as non-availability of execution of similar contract - Therefore it was a kind of conditional shortlisting of bidders including petitioner - When bids of these bidders were again evaluated by tender committee all bids of petitioner were found technically deficient for two reasons mentioned - In such a scenario it cannot be said that petitioner having been shortlisted could not have been technically disqualified - This is permitted by the tender itself which clearly provides that L-1 bids of the qualified tenderers would be declared only after technical and commercial evaluation - That apart, tender committee which evaluated technical bids as well as made financial evaluation of bidders comprised of same set of officials as noted above and both evaluations were done within a short span of time - Therefore it would not be correct to say that tender committee was incompetent to declare tender of petitioner as technically non-responsive at stage of evaluation of financial bids, because, as discussed above, bid of petitioner was, in fact, technically deficient - Petition is dismissed
1. Heard Mr. Suhail Dutt, learned Senior Counsel, assisted by Mr. Abhijit Singh, Mr. Vikram Rajkhowa, Mr. Kushagra Sah, Mr. N N B Choudhury and Mr. S S Borthakur, learned counsel for the petitioner. Also heard Mr. D Saikia, learned Senior Additional Advocate General, Assam, assisted by Mr. B Gogoi, learned Standing Counsel, Health Department for respondent Nos. 1 and 2; and Mr. M K Choudhury, learned Senior Counsel, assisted by Mr. M Sharma, learned counsel for respondent No. 3.
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks the following reliefs:-
(i) setting aside and quashing the impugned order dated 14.03.2018, passed by respondent No. 2 whereby the respondent No. 2 declared that petitioner failed to qualify in the Financial Bid evaluation and rejected the Financial Bid of the petitioner;
(ii) cancelling the purported rate contract letter dated 30.01.2018 issued by the respondent No. 2, whereby respondent No. 2 has arbitrarily and illegally declared respondent No. 3 as L-1 in respect of the 12 items and thereby awarding the rate contract letter to respondent No. 3;
(iii) to direct respondent No. 2 to consider the petitioner as qualified for the Technical Bid and consider the Financial Bid of the petitioner as the petitioner had filed its Technical Bid in terms of the NIT and consequently declared technically responsive vide the minutes of meeting dated 02.01.2018;
(iv) show-cause as to why an appropriate writ, order or direction should not be issued so as to give full relief in the matter and/or;
(v) call for the records and on perusal thereof and after hearing the parties may be pleased to make the Rule absolute and/or may be pleased to pass such further or other order/orders as may seem fit and proper.
3. Matter relates to award of contract for supply of essential surgicals and sutures pursuant to e-tender dated 08.09.2017, issued by the office of the Mission Director, National Health Mission, Assam. Though as many as 237 items were put to tender, the present lis is confined to 12 items.
4. Though bulky petitions and affidavits have been filed, it is necessary to briefly place the facts in seriatim so as not to lose focus on the core question for consideration.
5. E-tender dated 08.09.2017 was issued by the office of the Mission Director, National Health Mission (NHM), i.e., respondent No. 2 for entering into rate contract for supply of essential surgicals and sutures. As noted above, the tender covered a total of 237 items. Initially, the last date and time for receipt of e-tender was fixed on 07.10.2017 till 02:00 pm. However after several postponements, last date and time for submission of e-tender was fixed on 27.11.2017, till 03:00 pm.
6. As per instructions to bidders, the tender was to be of two-bid system, i.e., techno commercial bid and financial bid or price bid. Clause-3 deals with eligibility criteria. As per Clause-3 (c), a bidder should have at least three years’ market standing, i.e., financial years 2014-15, 2015-16 and 2016-17 as a manufacturer for the items quoted as on the date of bid opening. In case of imported products, the importer should have at least three years’ market standing as above as importer.
7. Clause-3 (d) contains the explanatory note. It says that merger/amalgamation/transfer of business/transfer of assets etc. of a firm affects the bid conditions relating to past performance/market standing in preceding years. Eligibility of a bidder in this regard shall be ascertained by the tender committee on the basis of the stated agreement/resolution of the Board of Directors/certificate of the Chartered Accountant or any other document or certificate annexed with the tender.
8. Likewise, as per Clause-3 (j), details of supplies (quoted items) made during the last three financial years, i.e., 2014-15, 2015-16 and 2016-17, supported by purchase orders for each quoted items must be submitted in addition to enclosing copies of supply orders executed for Gove
