The authority's discretion in technical bid evaluations, limited scope of judicial review, and the importance of public interest in awarding contracts involving state instrumentalities.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the first respondent to disqualify the second respondent's technical bid in the tender pursuant to the Notice inviting tender dated 25.10.2019 bearing reference PKG38/LCB/TNUHP/TNMSC/ENGG/2019, for the Supply and Installation of Extracorporeal Shockwave Lithotripsy for Medical College Hospitals at various districts of Tamil Nadu.)

1. A direction by way of Writ of Mandamus to the first respondent to disqualify the second respondent's technical bid in the tender pursuant to the Notice inviting tender dated 25.10.2019 bearing reference PKG38/LCB/TNUHP/TNMSC/ENGG/2019, for the Supply and Installation of Extracorporeal Shockwave Lithotripsy for Medical College Hospitals in various districts of Tamil Nadu is sought for by the petitioner in this writ petition.

2. The petitioner is engaged in the business of distribution and supply of medical equipments from reputed companies and is one of the largest suppliers of such medical equipments in India. The first respondent had issued a Notice Inviting Tender (in short, "NIT") for the supply and installation of Extracorporeal Shock Wave Lithotripsy (in short, "ESWL") for Medical College Hospitals in various districts of Tamil Nadu. The tender was for the supply of 4 units of Lithotripters. The selection of the supplier was to be done by local competitive bidding in two cover system. The tender document was dated 25.10.2019 fixing the last date for receipt of the bid as 0312.2019.

2.1. A pre-bid meting was called for on 18.11.2019. It is stated by the petitioner that in the pre-bid meeting, a written representation was submitted by the second respondent, which was also a bidder, requesting for 11 changes in the tender document, more particularly, on the technical specifications, as the second respondent did not have the model to meet the technical specifications prescribed in the tender document. There was also a corrigendum issued by the first respondent on 02.12.2019 and the last date for submission of bids was extended to 13.12.2019, which was also extended for two more occasions and finally fixing the last date for submission as 31.12.2019.

2.2. As stated above, the suggestions given by the second respondent were considered and finally the first respondent had issued a second corrigendum mentioning the specifications for ESWL to be supplied by the successful bidder as follows:

(i). Shall have imaging technology to view the patient contact interface from within the therapy head;

(ii). C-arm shall have all movements motorised;

(iii). Shall have an additional Biplane transducer (Simultaneous Sagittal and Transverse planes) for trans-rectal ultrasound and guided prostatic biopsy ; and

(iv). Design shall accommodate the C-arm movement on both CC directions.

2.3. On 31.12.2019 both the petitioner and the second respondent submitted their bids in two covers containing technical bid and price bid. The petitioner had quoted Dornier Lithotripter model Delta-II, while the second respondent had quoted Modulith SLK Inline model.

2.4. On 29.01.2020, a clarification was also sought for by the first respondent from the petitioner regarding patient table, which was also immediately furnished by the petitioner. Again on 04.02.2020, the first respondent sought for some clarification with regard to ESWL machine, which was also responded to by the petitioner. On 03.03.2020, the first respondent published the result of evaluation of technical bid on its website, which had accepted the technical and commercial bids of the petitioner and the second respondent. According to the petitioner, it was a surprise that the technical bid of the second respondent was accepted by the first respondent, though it had not met the critical technical criteria prescribed. Therefore, the petitioner submitted a detailed representation on 03.03.2020 drawing the attention of the first respondent to the representatio