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2011 Supreme(Mad) 980
High Court of Judicature at Madras
K. CHANDRU, J.
Bharat Biotech International Limited, rep by its Authorized Signatory
Versus
The Government of Tamilnadu, represented by its Principal Secretary, Chennai & Others
W.P.NO.332 of 2011 & M.P.NO.2 of 2011
Decided on : 25-02-2011
For the Petitioner:V.T. Gopalan, SC for S. Ramesh, Advocate.
For the Respondents: R1 to R3 - G. Sankaran, Spl.G.P. Assisted by R. Murali, GA.
The main legal point established in the judgment is that the cancellation of tender processes and the decision to call for fresh tenders must be in accordance with the Tamil Nadu Transparency In Tenders Act, 1998. The court's jurisdiction for judicial review in such matters is limited, and challenges must be supported by concrete evidence.
Headnote:
Tender - Challenge to Tender Process - Tamil Nadu Transparency In Tenders Act, 1998 - [Anti Rabies Vaccine] - [Tender Inviting Authority, Managing Director of Tamil Nadu Medical Services Corporation Limited] - [Clause 19(4), Para 11(a) of Annexure X, Para 8 of Annexure X, Section 12 of the TTT Act] - The court discussed the tender conditions, blacklisting, and cancellation of tenders under the Tamil Nadu Transparency In Tenders Act, 1998. Key legal provisions such as Clause 19(4), Para 11(a) of Annexure X, Para 8 of Annexure X, and Section 12 of the TTT Act were interpreted and influenced the court's decision to dismiss the writ petition.
Fact of the Case:
The petitioner challenged the cancellation of a tender process and the decision to call for fresh tenders for the supply of Anti Rabies Vaccine. The petitioner, as the tenderer with L-1 rank, sought a direction to award the contract to them. The court analyzed the tender conditions, blacklisting, and cancellation of tenders under the Tamil Nadu Transparency In Tenders Act, 1998.
Finding of the Court:
The court found that the cancellation of the tender process and the decision to call for fresh tenders were in accordance with the Tamil Nadu Transparency In Tenders Act, 1998. The petitioner's challenge was dismissed, and no positive direction was given to award the contract in their favor.
Issues: The issues involved the challenge to the cancellation of the tender process, the decision to call for fresh tenders, and the petitioner's entitlement to the contract under the Tamil Nadu Transparency In Tenders Act, 1998.
Ratio Decidendi: The court held that the cancellation of the tender process and the decision to call for fresh tenders were within the authority's rights under the Tamil Nadu Transparency In Tenders Act, 1998. The petitioner's challenge lacked concrete proof of malafide and did not establish a cause of action.
Final Decision: The writ petition was dismissed, and no costs were awarded. The court found no grounds to entertain the petition, and the challenge to the cancellation of the tender process and the decision to call for fresh tenders was not upheld.
1. The petitioner has filed the present writ petition seeking to challenge an order of the second respondent, i.e., Tender Inviting Authority and the Managing Director of Tamil Nadu Medical Services Corporation Limited, dated 30.12.2010 as well as the consequential notification, dated 03.01.2011 calling for fresh tenders and after setting aside the same, seeks for a direction to award the contract to the petitioner company for the supply of Anti Rabies Vaccine Human (Cell Culture) Drug Code No.579.
2. The writ petition was admitted on 7.1.2011. Pending the writ petition, an interim stay was granted. It was extended till 14.2.2011. The second respondent has filed a counter affidavit, dated 25.1.2011 together with typed set of documents. They had also filed an additional typed set of papers, dated 14.2.2011. An additional affidavit, dated 5.2.2011 was filed by the petitioner. In reply, a further counter affidavit, dated 14.2.2011 was filed by the second respondent.
3. The facts leading to the filing of the petition are as follows:
The second and third respondents which is the wholly owned Government of Tamil Nadu undertaking had invited tenders for the supply of drugs and medicines for the year 2010-11 on 23.12.2009. The last date for receipt of the tenders was fixed on 22.1.2010. In the tender for the supply of drugs and medicines, the second respondent had prescribed the eligibility criteria and tender conditions. The bid consists of technical bid to be kept in Cover 'A' and price bid to be kept in Cover 'B'. The term No.2 of the tender conditions prescribed that the tenderer should be a manufacturer having a valid manufacturing licence or direct importer holding valid import licence. The Distributors, suppliers, agents, loan licensee are not eligible to participate in the tender. The tenders must have three years market standing as a manufacturer / importer for the drug quoted in the tender. For the drug, i.e., Anti Rabies Vaccine and Tetanus Toxoid, the tenderer should have one year market standing as a manufacturer / importer. They also should not be blacklisted either by the Tender inviting Authority or by any State or Central Governments. If any default in the supply of the Vaccine in any of the tenders floated by the Central and state Governments or Government owned or controlled institution during the past three years, then such tenderer will not be eligible to participate in the tender for that product.
4. The petitioner had submitted its bid as per the terms and conditions. The technical bids were opened on 22.1.2010. The petitioner was found qualified in the technical bid. The tenderers who had satisfied the technical bids were invited to be present on the date of opening of the price bid/cover 'B' on 26.2.2010. The petitioner had submitted its tender for the supply of drug Code No.579 which is at Sl.No.221 and Drug Code No.724 which is at Sl.No.246 in the annexure VI to the tender form.
5. The petitioner also made a complaint on 25.2.2010 to the effect that one Indian Immunological Ltd. was disqualified for 100% default in the supply of Anti Rabies Vaccine by the Kerala Government and should be debarred from participation. The second respondent had partially accepted the complaint and debarred the said tenderer, i.e., Indian Immunological Ltd. in respect of Drug Code No.579, but had accepted their bid in respect of Drug Code No.724. The said company had filed a writ petition before this court being W.P.No.4858 of 2010 to quash the communication disqualifying them from participating in the Drug Code No.579 and asked for stay of further proceedings. That writ petition was admitted on 10.3.2010 and an interim stay was also granted on the said date. However, the said writ petition was dismissed by this court by a final order, dated 30.4.2010. As against the said order, a writ appeal being W.A.No.4858 of 2010 was filed. The same was admitted during summer recess of this court in May, 2010. But no interim order
