Accurate information in bidding process and rational policy to prevent supply by spurious drug peddlers

This writ petition have been filed by an unsuccessful bidder in relation to the supply of drugs to the respondent Medical Department.

2. The petitioner's bid was found to be ineligible and, therefore, his financial bid has not been considered. The allegation against the petitioner is that the petitioner has filed an incorrect declaration as per condition No.6.6 and has, therefore, given an incorrect information in the undertaking which have been filed by him as per Annexure-5 to the tender document that violates condition No.8 thereof.

3. Sri Asok Pande for the petitioner contends that the petitioner being a bidder with lowest rates, was entitled to participate in the financial bids and consequently, the action of the respondents is discriminatory. To substantiate his submissions, the petitioner has filed supplementary affidavits on 14.07.2016, 20.07.2016, rejoinder affidavit dated 01.08.2016 and 04.08.2016. With the aid of such affidavits, the petitioner has also alleged that the black listed firms namely, M/s. Medipol Pharmaceuticals India Pvt. Ltd., M/s. ZEE Laboratories and M/s. Omega Biotech Limited, have been cleared in their technical bids whereas, the petitioner in spite of being qualified have been wrongly excluded.

4. It may be put on record that all the above three firms have filed impleadment applications along with their affidavits which are on record. Sri Manish Singh has put in appearance on behalf of M/s. ZEE Laboratories, Sri Sudhanshu Chauhan has put in appearance on behalf of M/s. Medipol Pharmaceuticals India Pvt. Ltd., and Sri Anurag Narain has appeared for M/s. Omega Biotech Ltd. Learned standing counsel has filed a supplementary counter affidavit dated 27.07.2016 and an affidavit dated 01.08.2016 on behalf of the State respondents 1 to 3.

5. In order to appreciate the controversy, it would be appropriate to quote the relevant conditions in the tender documents that have been produced before the Court. The first is the tender notice which contains clause 14 and is extracted hereinunder: -

“14. Firms should give an affidavit that company is not blacklisted and there is no Court Case/Vigilance Case/CBI Case pending against the firm. All the documents given in the tender are true. If found false/fake the person who is giving affidavit is fully responsible. Any action taken against person/firms will be accepted. (Court case means “criminal case” against firm/board of director/directors/principle stock holder as per relevant laws.)”

6. The next relevant conditions are Condition No.6.5 and 6.6 in the instructions to the bidders contained in Section 1 of the tender documents that are extracted hereinunder: -

“6.5 Should not be under conviction for manufacturing/supplying sub-standard drugs or on any other grounds under Drugs & Cosmetics Act or rules framed there under. The firm/company/corporation and any of its Directors/Proprietor/Partner/authorised signatories should not be convicted/or a criminal case filed against or pending in any court (including CBI courts) of India by any department of the Government under Prevention of Corruption Act or for cheating/defrauding government/embezzlement of Government fund or for any criminal conspiracy in the said.

6.6 Should not be currently blacklisted debarred or deregistered for (a) forgery (b) misrepresentation or (c) supplying “Not of Standard Quality” drugs(s) for which the bid is being submitted by any govt./autonomous body/institution, hospitals in India.”

7. As per condition No.7.2, a notarized undertaking has to be given as per Annexure–5, which contains Clause-8 as follows: -

“8. That our firm has not been deregistered or black listed by any govt./autonomous institution, hospital or body in India for any item which is being quoted here by me in this tender or for participating in bid altogether.”

8. The petitioner also filed his undertaking which is Annexure–1 to the writ petition and had sworn Clause-8 as per the aforesaid undertaking. The petitioner had also ad