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2019 Supreme(Raj) 2948
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Ashok Kumar Gaur, J.
M/s Vaishali Hygiene Products – Petitioner
Versus
State of Rajasthan, Through Chief Secretary and ors. – Respondents
S.B. Civil Writ Petition No. 21319 of 2019
Decided On : 12-12-2019
Subject
Public Procurement - Tender Conditions
Act Referred
Headnote
Rajasthan Medical Services Corporation Limited – Call for the entire records, documents and note-sheets pertaining to issued by respondent Rajasthan Medical Services Corporation Limited – (ii) Issue appropriate writ, order and/or directions whereby, the entire proceedings issued by respondent Rajasthan Medical Services Corporation Limited may kindly be quashed and cancelled (iii) Issue appropriate writ, order and/or directions whereby, directions be issued to initiate enquiry against the impugned action of the Rajasthan Medical Services Corporation Limited whereby multiple alterations have been made to the eligibility criteria of the tender conditions (iv)Any other writ, order or direction, which this Hon’ble Court deems just and appropriate in the facts and circumstances of the case may kindly be passed in favour of the petitioner(v) Costs of the present writ petition may also kindly be awarded in favour of the humble petitioner –Held, Court finds that if the procuring entity has classified the requirement of having annual turnover only in respect of sanitary napkins, no arbitrariness can be found in such action of the procuring entity –Product which is required to be supplied is a particular product like sanitary napkins, the procuring entity has to ensure that the persons who participate in the bidding process, have enough turnover in the same field and as such no arbitrariness is found on the part of the respondents – Court finds that the procuring entity if has issued corrigendums, it is within their domain to ask from the eligible bidders and as such no fault has been committed in the decision making process –present writ petition has no force and the same is dismissed – At this juncture, learned counsel for the petitioner submitted that the petitioner has already approached the respondents by filing representation and they should consider the grievance raised by the petitioner – Writ petition has no force and the same is dismissed.
Advocate Appeared:
For the Petitioner: Mr. Siddharth Bapna, Adv.
ORDER :
1. The present writ petition has been filed by the petitioner by making the following prayers :-
“(i) Call for the entire records, documents and note-sheets pertaining to NIB No.5/2019 dated 16.07.2019 issued by respondent Rajasthan Medical Services Corporation Limited;
(ii) Issue appropriate writ, order and/or directions whereby, the entire proceedings of NIB No.5/2019 dated 16.07.2019 issued by respondent Rajasthan Medical Services Corporation Limited may kindly be quashed and cancelled;
(iii) Issue appropriate writ, order and/or directions whereby, directions be issued to initiate enquiry against the impugned action of the Rajasthan Medical Services Corporation Limited whereby multiple alterations have been made to the eligibility criteria of the tender conditions;
(iv) Any other writ, order or direction, which this Hon’ble Court deems just and appropriate in the facts and circumstances of the case may kindly be passed in favour of the petitioner
(v) Costs of the present writ petition may also kindly be awarded in favour of the humble petitioner.”
2. Counsel for the petitioner Mr. Siddharth Bapna submitted that successive corrigendum’s have been issued by the respondents in respect of NIB No.5/2019 by the Executive Director (Procurement) RMSCL, Jaipur and by Corrigendum No.5 dated 19.09.2019, the eligibility criteria i.e. Clause 2(b) has been materially altered by asking the bidders to have average annual turnover in the last three financial years of not less than Rs.20 crores.
3. Counsel submitted that for the same product, the respondents had invited bids in the year 2017 and the turnover required was only of Rs.10 crores. Counsel submitted that apart from corrigendum No.5 dated 19.09.2019, the respondents issued corrigendum No.6 dated 20.09.2019 and they have again changed the eligibility criteria i.e. Clause 2(b) where average annual turnover is required for the relevant product only i.e. Sanitary Napkins.
4. Counsel submitted that last corrigendum was issued as corrigendum No.7 dated 30.09.2019 and last date of submission of the online bid was extended upto 15.10.2019.
5. Counsel submitted that the Government of India, Ministry of Commerce and Industry, Department of Industrial Policy and Promotion has issued an order dated 15.06.2017 relating to Public Procurement (Preference to Make in India) Order 2017 and as per condition No.10 in the said order, the procurement entities are required to make an endeavour to see the eligibility conditions including the matters like turnover, production capability and financial strength, which should not result in unreasonable exclusion of local suppliers, who can otherwise be eligible and beyond what is essential for ensuring quality or creditworthiness of the supplier.
6. Counsel submitted that the petitioner is a start-up Entrepreneur and by changing the conditions by successive corrigendum, the respondents have acted in a malafide manner and in order to exclude the ‘Make In India’ Project, the other persons are made eligible.
7. Counsel further submitted that the petitioner had to file a Writ Petition No.1353/2018 in Madhya Pradesh High Court and the same came to be allowed by the Division Bench vide order dated 31.07.2018. Counsel submitted that the petitioner had challenged rejection of his bid in response to Notice Inviting Tender dated 17.10.2017 issued by the Corporation of Madhya Pradesh for supply of Sanitary Pads in the government hospitals for a period of 18 months.
8. Counsel submitted that the Madhya Pradesh High Court has taken a view that the guidelines of the Government of India may not be strictly applicable to tender invited by an instrumentality of the State, however the entrepreneur who are following the drive of the Government of India by making products in the name of “Make In India”, should get due consideration from the Authorities by keeping in view the larger public interest as Government has to promote the “Make In India Project”.
