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2025 Supreme(Online)(Del) 2953
IN THE HIGH COURT OF DELHI AT NEW DELHI
Tushar Rao Gedela, J
M/S HEMOGENOMICS PVT LTD – Appellant
Versus
UNION OF INDIA & ANR. – Respondent
W.P.(C) 17140/2024
For the Appellants/Petitioners:Mr. Kirti Uppal, Sr. Advocate, Mr. Apoorv Shukla, Mr. Puneet Chahar, Mr. Prabhleen A. Shukla, Mr. Vindhya Mohan Aggarwal, Ms. Riya
For the Respondents: Mr. Vikram Jetly, CGSC, Ms. Shreya Jetly, Mr. Tarun Johri, Mr. Ankur Gupta, Mr. Vishwajeet Tyagi
Public procurement disqualifies bids from entities linked to manufacturers in countries sharing a land border with India without proper registration.
Headnote:(A) Constitution of India, 1950 - Article 226 - Public Procurement - Bid rejection on grounds of non-compliance with land border clause - Petition against rejection dismissed as petitioner failed to comply with necessary registration requirements. (Paras 18, 20, 26)
(B) Tender Documents - Interpretation of tender conditions relating to land border sharing - Legal implications of agent status under procurement rules and criteria for bid disqualification based on country of origin. (Paras 11 & 19)
(C) The petitioner submitted bids for an electronic testing system but was disqualified based on land-border restrictions outlined in the tender qualification criteria citing its association with Grifols (HK) Ltd., situated in a country sharing a land border with India. (Paras 7, 12, 14)
Findings of Court:
The petitioner was deemed to be acting as an agent for a company sharing a land border with India, and was thus disqualified under the public procurement rules. (Paras 17, 26)
Issues: Whether the petitioner's bid should have been accepted, given the conditions outlined in the procurement order regarding border-sharing entities.
Ratio Decidendi: The court ruled that the petitioner’s bid was rightly rejected due to non-compliance with the land border clause as the petitioner was linked to a company subject to this restriction.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. tender process compliance based on land border legalities. (Para 1 , 6 , 10 , 12) |
| 2. legal interpretation of agent definitions in procurement. (Para 8 , 14 , 15 , 20 , 22) |
| 3. court concurrence with established legal precedents. (Para 17 , 26) |
JUDGMENT
TUSHAR RAO GEDELA, J.
1. Present writ petition has been filed under Article 226 of the Constitution of India , 1950 assailing the decision of the respondent vide order dated 25.11.2024 whereby the bid of the petitioner was rejected, and further seeking a direction to the respondents to consider the petitioner’s bid.
2. The petitioner is a private limited company, inter alia, engaged in import of testing kits and its reagents which are used for testing/screening/ detecting of Human Immunodeficiency Virus (HIV), Hepatitis B virus (HBV), and Hepatitis C virus (HCV) in the blood of the donors as well as confirming HIV/HBV/HCV antibody diagnosis (Testing Kits).
3. On 02.02.2024, respondent no.2/HLL Infra Tech Services Ltd. floated Tender No.HITES/PCD/AIIMS-II/106/2023-24 for the supply of Fully Integrated and Fully Automated Walk away compact Nucleic Acid Testing System, for the institutions getting upgraded under the Pradhan Mantri Swasthya Suraksha Yojna (PMSSY) for respondent no.1.
4. The petitioner claims to have submitted its bid against the said tender to respondent no.2 on 21.03.2024. Subsequently, certain amendments were carried out in the tender. Pursuant thereto, the petitioner re-submitted its bid on 02.04.2024, 13.04.2024 and 15.04.2024.
5. The petitioner claims to have received the Import License under the Medical Device Rules, 2017 on 26.03.2024, which was issued by the Central Drugs Standard Control Organization, Directorate General of Health Services, Ministry of Health & Family Welfare (Medical Device & Diagnostic Division) (hereafter CDSCO). As per the said license, site of the legal manufacturer and actual manufacturer is indicated as United States of America and Switzerland, respectively.
6. Respondent no.2 by its email dated 16.05.2024 sought technical clarification from the petitioner, who responded vide its letter dated 17.05.2024. In answer to another clarification vide email dated 27.08.2024, sought in respect of commercial terms by the respondent no.2, the petitioner vide its communication dated 09.09.2024 clarified that the petitioner is not an agent of any other company. The petitioner claims that it had further clarified that its agreement with Grifols (HK) Limited would not violate any condition of the tender or the General Financial Rules, 2017 (hereafter the GFRs, 2017), since the said company is only a subsidiary of Grifols Diagnostics Solutions, USA. The petitioner states that despite such clarification, respondent no.2 rejected the bid of the petitioner vide impugned decision dated 25.11.2024 by merely stating “non-compliance of the land border clause no.5 mentioned in Qualification Criteria of Tender Document.”
7. Aggrieved thereof, the petitioner issued a legal notice to respondent no.2 on 27.11.2024 against arbitrary and unilateral rejection of its tender application on the allegation of non-fulfillment of condition under Rule 144 (xi) of the GFRs, 2017. However, no response was received, constraining the petitioner to approach this Court.
CONTENTIONS OF THE PETITIONER:-
8. Mr. Kirti Uppal, learned senior counsel appearing for the petitioner submits that the impugned communication dated 25.11.2024 is arbitrary, capricious and does not take into consideration the clarification submitted by the petitioner and ought to be quashed and as a consequence thereof, the bid of the petitioner should be considered by the respondents.
9. He states that the Import Licence dated 26.03.2024 issued to the petitioner under the Medical Devices Rules, 2017 by the CDSCO, categorically indicates the details of petitioner’s overseas manufacturer and manufacturing site. As per the said Import Licence, the Legal Manufacturing Site is “M/s. Hologic Inc., 10210 G
