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2018 Supreme(Raj) 1118
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
KALPESH SATYENDRA JHAVERI, VIJAY KUMAR VYAS, JJ.
Johnson and Johnson Private Limited - Appellant
Versus
State of Rajasthan - Respondent
Special Appeal Writ No. 802 of 2018
Decided On : 06-07-2018
Mahendra Singh, Adv., Aksh Shrivastava, Adv., K.K. Sharma, Adv., Pyush Nag, Adv.
In a public procurement tender for the supply of medical supplies, the decision of the authorities to accept a product that meets the tender requirements and is technically sound and cost-effective is not arbitrary or irrational and does not warrant judicial interference.
Headnote:
TENDER - PUBLIC PROCUREMENT - MEDICAL SUPPLIES - TECHNICAL BID - FINANCIAL BID - EVALUATION - JUDICIAL REVIEW - STANDARD OF REVIEW - EXPERT OPINION - REASONABLENESS - PUBLIC INTEREST - TRANSPARENCY - DISMISSAL OF APPEAL WITH COSTS.
Fact of the Case:
Appellant challenged the dismissal of his writ petition by the Single Judge, which upheld the orders of the First and Second Appellate Authorities confirming the award of a tender for the supply of surgical equipment and sutures to Respondent No. 2, a Government Company. The controversy related to antibacterial coated sutures, with the appellant claiming that his product was superior to that of Respondent No. 6, who was awarded the contract. The appellant raised issues regarding the evaluation of technical bids, the opening of financial bids before technical responsiveness was finalized, and the alleged failure of Respondent No. 6's product to meet the tender requirements.
Finding of the Court:
The Court held that the opening of the financial bid before the technical responsiveness was finalized was permissible under the E-procurement procedure adopted by the authorities, as per Rule 5 of the Rajasthan Transparency in Public Procurement Rules, 2013. The Court also found that the requirement in the tender was only for anti-bacterial sutures, and not specifically for bactericidal or bacteriostatic sutures, and therefore, the product of Respondent No. 6, which was found to be anti-bacterial, met the tender requirements. The Court further held that the decision of the authorities to accept the product of Respondent No. 6, which was found to be technically sound and cost-effective, was not arbitrary or irrational and did not warrant judicial interference. The Court also noted that the appellant had failed to object to the opening of the financial bid within the stipulated time and had not lowered his price when given the opportunity to do so.
Issues: 1. Whether the opening of the financial bid before the technical responsiveness was finalized was permissible under the E-procurement procedure adopted by the authorities? 2. Whether the product of Respondent No. 6 met the tender requirements for anti-bacterial sutures? 3. Whether the decision of the authorities to accept the product of Respondent No. 6 was arbitrary or irrational and warranted judicial interference?
Ratio Decidendi: 1. The Court held that the opening of the financial bid before the technical responsiveness was finalized was permissible under the E-procurement procedure adopted by the authorities, as per Rule 5 of the Rajasthan Transparency in Public Procurement Rules, 2013. The Court noted that the E-bid procedure and the opening of the E-Portal was on a single cover system where all the bids are opened at the first instance itself. 2. The Court held that the requirement in the tender was only for anti-bacterial sutures, and not specifically for bactericidal or bacteriostatic sutures, and therefore, the product of Respondent No. 6, which was found to be anti-bacterial, met the tender requirements. The Court observed that it would not add or give further meaning to the word 'anti-bacterial'. 3. The Court held that the decision of the authorities to accept the product of Respondent No. 6, which was found to be technically sound and cost-effective, was not arbitrary or irrational and did not warrant judicial interference. The Court noted that the authorities had taken all possible measures for reaching a decision of approval, including obtaining opinions from various committees and experts.
Final Decision: The Court dismissed the appeal with costs of Rs. 1,00,000/- (Rs. One lac) on the appellant to be paid to Respondent No. 6.
1. By way of this appeal, the appellant has assailed the judgment and order of the learned Single Judge whereby learned Single Judge has dismissed the writ petition filed by the petitioner-appellant herein confirming the order of the First Appellate Authority and Second Appellate Authority.
2. The facts of the case are that respondent No.2 (a Government Company) issued Notice Inviting Bids (NIB) for supply of surgical equipment and sutures including "Regular Sutures", "Synthetic Absorbable Sutures" and "Synthetic Absorbable Antibacterial Triclosan Coated Sutures". Items at Serial No.R-9, R-11, R-12, R-13, R-15, R-17, R-18 R-19, R-64, R-65 & R67 related to "Synthetic Absorbable Sutures". Items at serial No. R-68 to R-74 related to "Synthetic Absorbable Antibacterial Triclosan Coated Sutures". E-bids were required to be submitted in two parts namely Technical Bid and Price Bid. The controversy in the present case relates to antibacterial coated sutures. The bidders were required to be either manufacturer having valid manufacturing licence or direct importer holding valid import licence. All bidders were required to have at least three years Market Standing as manufacturer/importer. All bidders were required to submit attested copy of requisite licence as well as Market Standing Certificate duly issued by the Competent Authority.
3. The petitioner-appellant herein has mainly raised the controversy on the ground that samples of the appellant were sent to a laboratory of ISO whereas sample of respondent no.6 is sent to University and they were not allowed to play on equivalent play ground. The product of the appellant was found to be on better footing over and above the required criteria which reads as under:
The following samples were tested SA-323, SA324, SA-325, SA-326, SA-327, SA-328 and SA329. Overall, the results show that the sutures are effective and have bacteriostatic properties. The sutures exhibit higher effectiveness towards S. aureus (+20%) than towards E. coli (-3%) as compared to controls.
3.1 It is alleged that the product of respondent no.6 was not matching with the product of the appellant so the appellant claim its product to be better placed than respondent no.6.
3.2 Counsel for the appellant has taken us to provisions of Section 13 and 32 of the Rajasthan Transparency Public Procurement Act, 2012 and Rule 5 of the Rajasthan Transparency in Public Procurement Rules 2013 which reads as under:-
13. Single part and two part bids.- (1) Subject to the provisions of this Act and the rules and guidelines made there under, a procuring entity may choose to-
(a) call for bids in which the technical, quality and performance aspects, commercial terms and conditions and the financial aspects including the price are contained in a single envelope; or
(b) if it is of the opinion that it is essential to evaluate the technical aspects of a bid before considering its financial aspect, call for bids in two envelopes, namely:-
(i) the techno-commercial bid containing the technical, quality and performance aspects, commercial terms and conditions; and
(ii) the financial bid containing financial aspects including the price.
(2) In case the procuring entity calls for bids in terms of clause (b) of sub-section (1), the techno-commercial bid shall be opened and evaluated first and the financial bid of only those bids which have been found technically acceptable, shall be opened and evaluated.
32. Two stage bidding.-(1) A procuring entity may choose to procure the subject matter of procurement by the method of two stage bidding, if-
(a) it is not feasible for the procuring entity to formulate detailed specifications or identify specific characteristics for the subject matter of procurement, without receiving inputs regarding its technical aspects from bidders; or
(b) the character of the subject matter of procurement is subject to such
