W.P.(C.) No.3452/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision:19.01.2021

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W.P.(C) 3452/2020 & CM APPL. 12240/2020

SIEMENS HEALTHCARE PRIVATE LIMITED & ANR

..... Petitioners

Through:

Mr. Govind Rishi, Advocate.

versus

DIRECTORATE GENERAL OF HEALTH SERVICES, CENTRAL

PROCUREMENT AGENCY & ORS

..... Respondents

Through:

Mr. Gautam Narayan, ASC.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI

HON'BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J. (ORAL)

1.

The petitioner has preferred the present writ petition seeking the

following reliefs:

“a) Allow present Writ Petition under Article 226 & 227 read

order/decision dated 03.04.2020 and 08.04.2020 (Annexure P-

8 ) passed by Respondent No.1 thereby unilaterally

b) And directions may please be issued to allow the Petitioner‟s

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is pending before this Hon‟ble Court as the same will

technical bid.”

2.

The case of the petitioners is that the respondents initiated an e- tender

process for the purpose of procuring 3 units of 1000mA Digital Flat Panel

Fluoroscopy Radiography System and related services by way of a tender

document bearing tender ID 2019_DHS_181723_1; Ref no: TN 19_10

1000mA

DFRS Covering 1000 MA DIGITAL FLAT PANEL

FLUOROSCOPY RADIOGRAPHY SYSTEM.

3.

The petitioner no.1, an affiliate company of petitioner no.2,

participated in the tender process and its technical bid was found to be in

order. However, soon thereafter on 03.04.2020, the petitioner no.1 was

informed that it was disqualified from the tender process, without being

provided any reasons therefor. The petitioner then made several

representations to the respondents requesting that the reasons for its

disqualification be disclosed, which went unanswered. Finally on

29.05.2020, the petitioner received an email from the respondents –

communicating the reasons for its disqualification. The said email

communication reads as follows;

rakesh.kumar@siemenshealthineers.com via email on dated

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12.05.2020, as directed and approved by the Competent

Authority the clarification in this matter is as under-

RADIOGRAPHY SYSTEM and PQ Evaluation Committee has

disqualified to the said firm due to submission of undertaking

which was not verified / notarized as per Tender requirement.

Prabhat Kumar”

(emphasis supplied)

4.

Upon receiving the aforesaid reasons, the petitioner preferred the

present writ petition which was taken up by the Court on 10.06.2020. While

issuing notice in the petition on that date, this Court directed the respondents

to refrain from taking any further steps to finalise the L1 Bidder in respect of

the tender in question, till the next date. That interim order has been

extended thereafter and continues to operate. The respondents have filed

their counter-affidavit and their written submissions along with several

decisions, on which reliance is sought to be placed.

5.

We have heard the learned counsels, and proceed to judgment.

6.

The submission of learned counsel for the petitioner is that the reason

for disqualifying the petitioner is stated to be the petitioner’s failure to

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submit an undertaking duly verified/ notarised as per the tender

requirements. The requirement for submission of tender documents along

with the duly notarised undertaking is stipulated in Section 1 of the tender

document titled “Introduction & Notice Inviting Tender” Clause 6 thereof

provides that “E-Tenders (both Technical bid and Price Bid) will be

EMD and Notarised Undertaking must be submitted physically as well.”

(emphasis supplied) Further, Clause 11 sets down the documents comprising

the tender. Clause 11.1(A)(f) addresses the documents pertaining to

Technical Bid, and requires the bidder to present an undertaking as per the

Annexure U notarized on Rs. 100