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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Sanjeev Prakash Sharma, J.
Johnson Johnson Private Limited – Appellant
Versus
State of Rajasthan, Medical – Respondent
C.W.P. No. 8281 of 2017
Decided On : 17-05-2018
PUBLIC PROCUREMENT - TECHNICAL EVALUATION - BACTERICIDAL VS BACTERIOSTATIC SUTURES - JUDICIAL REVIEW OF CONTRACTUAL MATTERS - ADMINISTRATIVE DISCRETION - PUBLIC INTEREST - RAJASTHAN TRANSPARENCY IN PUBLIC PROCUREMENT ACT, 2012 - RULES, 2013 - DRUGS & COSMETICS ACT, 1940 - RULES, 1945.
Fact of the Case:
Petitioner challenged the inclusion of respondent No. 6's bid for supply of surgical equipment and sutures, specifically Synthetic Absorbable Antibacterial Triclosan Coated Sutures (Items R-68 to R-74), alleging that respondent No. 6's product was not responsive to the technical bid requirements. The petitioner's product was found to have bactericidal properties, while respondent No. 6's product had bacteriostatic properties and was responsive only to one bacteria. The petitioner also raised issues with the technical evaluation process and the opening of the financial bid before the technical bid was finalized.
Finding of the Court:
The court held that the E-bidding procedure adopted by the respondents was in accordance with Rule 5 of the Rajasthan Transparency in Public Procurement Rules, 2013, which provided for E-procurement. The court found that the financial bid and technical bid were required to be submitted together, and that the opening of the financial bid for Items R-68 to R-74 was subject to the technical responsiveness of the product. The court also held that the requirement in the tender was only for anti-bacterial sutures, and that the petitioner's argument that their product was of better quality because it was bactericidal while respondent No. 6's product was bacteriostatic was not made out.
Issues: 1. Whether the financial bid could be opened before the technical responsiveness of the product was finalized. 2. Whether the petitioner's product was of better quality than respondent No. 6's product and should have been considered instead. 3. Whether the respondent No. 6's product was not registered under the Drugs & Cosmetics Act, 1940, and therefore should not have been considered. 4. Whether the respondent No. 6's product was not tested by a recognized lab and therefore should not have been considered.
Ratio Decidendi: 1. The court held that the E-bidding procedure adopted by the respondents was in accordance with Rule 5 of the Rajasthan Transparency in Public Procurement Rules, 2013, which provided for E-procurement. The court found that the financial bid and technical bid were required to be submitted together, and that the opening of the financial bid for Items R-68 to R-74 was subject to the technical responsiveness of the product. 2. The court held that the requirement in the tender was only for anti-bacterial sutures, and that the petitioner's argument that their product was of better quality because it was bactericidal while respondent No. 6's product was bacteriostatic was not made out. 3. The court held that the registration of the product under the Drugs & Cosmetics Act, 1940, was not a material requirement for the purpose of the contract and that the petitioner had not raised this issue before the appellate authorities. 4. The court held that the respondent No. 6's product was tested by a recognized lab and that the lab's report found that the product met the benchmark standards.
Final Decision: The court dismissed the writ petition, holding that the decision of the procuring authority was not contrary to the provisions of law and that there was no reason to interfere with the decision.
Sanjeev Prakash Sharma, J.
1. The brief facts which are culled out from the writ petition are that the respondent-Rajasthan Medical Services Corporation Limited (hereinafter referred as 'RMSCL') a Company owned and controled by the State Government, invited bids for supply of surgical equipment and sutures which included Regular Sutures, Synthetic Absorbable Sutures and Synthetic Absorbable Antibacterial Triclosan Coated Sutures vide its NIT dated 15.07.2016. The E-bids for the contract-cum-supply and empanelment was invited. The last date for submission of online bids was 28.8.2016 which was later on extended upto 14.10.2016. As per the said NIT, a comprehensive bid consisting of technical and financial bids was to be submitted in two parts known as technical bids and price bids. Bidders were to be either manufactures having valid manufacturing lincense or direct importers holding valid import license with three years market standing as manufacturer/importer. All bidders were required to submit attested copy of the license duly approved as well as Market Standing Certificate issued by Licensing Authority. Further it was submitted that price bid of only those bidders will be opened who were eligible of technical evaluation and inspection.
The technical evaluation was to be conducted in two stages namely; evaluation on basis of document and secondly on examination/testing of samples for the purpose of two sample units of each quoted items which were also required to be quoted alongwith the bid.
2. Petitioner and the respondent have admittedly applied and submitted their bids for all kinds of sutures. The item Synthetic Absorbable Antibacterial Triclosan Coated Sutures was amended and the word "Triclosan" was deleted and thus Synthetic Absorbable Antibacterial Coated Sutures were required which related to items at Serial No. R-68 to R-74 in the total items as serially mentioned in the bid. The petitioner has challenged the inclusion for grant of bid in favour of respondent No. 6 Company so far as Item No. R-68 to R-74 are concerned. While the petitioner Company has been placed as L-2, respondent No. 6 Company (earlier named as Covidien Healthcare India Private Limited (hereinafter referred to as CHIPL) which thereafter merged with India Medtronic Private Limited (hereinafter referred to as 'IMPL') and it was placed on record as respondent No. 6, has been placed at L-1 with regard to the said items.
3. Case of the petitioner before this Court is that respondent No. 2 opened the technical bids on its website on 14.10.2016 wherein CHIPL quoted its sutures with brand name "Polysorb" in both kinds of sutures apart from petitioner and respondent No. 6, one other bidder i.e. respondent No. 7 had quoted for Item No. R-68 to R-74. It is one of the submission of the petitioner Company that the CHIPL had quoted the same product in both the categories i.e. Absorbable sutures as well as Synthetic Absorable Antibacterial Coated Sutures. It is his submission that when a departmental communication was issued by the respondent-Corporation for sending the samples of the three bidders for testing to an accredited empaneled lab, namely Oasis Test House Limited for requisite clinical evaluation/testing, the CHIPL product was returned with a note that the lab does not have the testing facilities as per the testing procedure provided by the CHIPL vide its letter dated 23.12.2016. At the same time sample wise test reports of petitioner and the other bidder namely respondent No. 7 were tested for anti bacterial efficacy and it was found that product of the petitioner as well as respondent No. 7 was possessing anti-bacterial efficacy of coated sutures via zone of inhibition. It was thus found to be responsive for four bacteria's namely:-
(1) Staphylococcus Aureus
(2) Escherichia Coli
(3) Staphylococcus epidermidis
(4) Salmonella Abony
4. Case of the petitioner is that so far as respondent's No. 6 product is concerned, it was also quoted for th
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