Full Text
HIGH COURT OF DELHI
Date of Decision: 29.8.2013
INSTRUMED (INDIA) INTERNATIONAL ..... Appellant
Through : Ms. Aastha Dhawan, Advocate
Through : Mr. Mukesh Rana, Advocate for R-2 Mr. Rishab Kaushik, Advocate for R-1
HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
W.P.(C) 5950/2012 & CM 10174/2013(vacation of stay on b/o. R-2)
JUDGMENT
1. The petitioner questions the award of contract to the second respondent pursuant to the Notice Inviting Tender (hereinafter referred to as the „NIT‟) for supply of assembly of sinks with scrub in Animal House & U.G. Laboratory in the Physiology Department of All India Institute of Medical Sciences (AIIMS).
2. Briefly, the facts of the case are that the NIT (hereafter referred to as the “NIT”) published sometime in August, 2012 required the 2013:DHC:4268-DB bidders to submit their offers/letters by 22nd August, 2012. The tenders were scheduled for opening on 24th August, 2012. The equipments to be supplied were for an estimated cost of Rs.4,98,600/-. The tender specifications, in the schedule of the work to the NIT spelt out the following requirements:- S.No. Description of items Qty Rate Unit Amount 1.[1] P/Fixing stainless steel scrubber floor mounted with pedestal base of required size and provision of soap operation by knee made of S.S. sheet of high quality of grade
304. The trough is made of 16 gauge & other structure of 18 gauge prefinished stainless. The three bay scrubber of size 2250 x 675 x 975 mm (front) and back of height 1105 mm approximately will have three water shower post sensor operated –cum- foot operated for hot & cold water supply & with drier to facilitate 3 persons to scrub simultaneously. Also, the scrub should have the following:
1. Scrub by should also have foot pedal operated Faucets in parallel to sensors
2. Scrub unit should have liquid soap dispenser, wall mounted type sensor operated of 800 ml. Capacity.
3. It should have a specially designed (floor mounted) Gyser with provision of ceramic type element (Make Bajaj/Crompton/Venus) capacity of Gyser should be minimum 50 Litres.
4. Scrub should have an individual electronic descaler to ensure not to scale the water pipe line/tapes for smooth functioning of the unit
5. Scrub Station should incorporate a filtered solenoid value with serviceable “Y” strainer filter.
6. It should be compatible with all the regular and standard plumbing, all plumbing fittings should be S.S. or brass.
7. Scrub should be equipped with thermostatic mixer to ensure safe working of the unit.
8. The system should be suitable to operate on 240 +/- 10% Hz single phase power supply.
9. In built 0.25 HP pump of Usha/Crompton 2 2,49,300 Each 4,98,600.00
3. The petitioner submitted its bid for a sum of Rs.3,88,908/-. The other bidder‟s offer i.e. of the second respondent according to the AIIMS was found responsive / eligible and was taken up for consideration. Apparently, at the stage of the bid processing, the petitioner represented to the AIIMS and contended that the second respondent‟s offer did not fulfil the criteria of the technical specifications, i.e. the latter‟s assembly of sinks with scrub could not be operated with the knee. The petitioner‟s counsel contends that this feature of the sink/scrub being operable with the knee was of special importance particularly because the assembled equipment was to be located in the operation theatre at AIIMS. Counsel emphasised that every possibility of infection was to be avoided. That equipment offered by the second respondent would not conform to the specification in as much as it could not be operated by the knee, it would have scope for spreading infection and increasing the likelihood of contamination.
4. After notice was issued, the AIIMS entered appearance. On a number of dates of hearing, time was granted to the respondent to file its counter-affidavit, which it ultimately did on 10th April, 2013.
5. During the course of the proceeding, upon directions to the AIIMS, learned counsel for the AIIMS has produced the relevant file and its noting sheet. This Court had the benefit of reading the same. The noting sheet indicates that the petitioner‟s representation dated 25th August, 2012, objecting to the second respondent‟s certificate and also stating that the equipment did not incorporate the feature of “Soap Operation with knee” has been received and considered. A subnote was prepared in that regard on 29th August, 2012. The higher authority concerned, i.e. the Superintendent Engineer took note of this representation but proceeded to hold that both the bidders, i.e. the petitioner as well as the second respondent were eligible and could be considered. Eventually, after the matter was processed on 1st September, 2012, the AIIMS stated that both the bids were in compliance with the terms of the NIT. On a comparative analysis, the second respondent‟s bid was found to be more competitive as against the petitioner‟s bid, by which they offered to supply the equipment. Interestingly, the second respondent‟s contention is not that the feature with regard to the operation of soap by knee is not an essential condition. All that it states is that this feature requires incorporation of an additional pump which the second respondent would undertake. This is apparent from the following extract of the second respondent‟s reply: “6.That the respondent No.2 produced experience documents/certificate of higher automatic version of same products which was required by the respondent No.1 in the required tender, it is pertinent to mention that respondent No.2 does holds capacity and expertise to supply feature which was sought in the tender by respondent No.1, even it pertinent to mention that such feature does not require too much of skills. It is just fabrication of same product with semi automatic settings. It requires just an additional pump to make this feature available in the required product which is done by the respondent No.2 in various other hospital directly or indirectly.
7. That respondent No.2 submitted the experience certificate of 2 completed supply where the specification of product was higher than the required specification, it is also pertinent to mention that in the same NIT document it was mentioned in the section 1.1.[2] of the said tender that “scrub unit should have liquid soap dispenser, wall mounted type sensor operated of 800 ml capacity” which is main option to dispense soap during scrub procedure. It is pertinent to mention that specification mentioned in Section 1.[1] of the tender document says “provision of soap operation by knee” that clearly indicates the importance of this feature anyhow respondent No.2 had provision to fabricate such scrub unit which was quoted in the tender.”
6. Ld. Counsel for the AIIMS submitted that there is no question of departure from the tender conditions including the features indicated in the Schedule especially Para 1.1. He also relied upon the judgment of the Supreme Court reported as Tejas Construction v. Municipal Council, 2012 (6) SCC 464. It is apparent from the above discussions that the second respondent‟s bid was considered compliant with the terms of the NIT. The petitioner alleges that the second respondent has not supplied the knee operated soap dispenser which is the subject matter of the NIT.
7. This Court is conscious of its limited jurisdiction and role in judicial review. The Court would intervene in such matters where it is apparent that the decision arrived at is tainted procedurally or lacks bona fides apart from a case of established illegality or a result which is manifestly unreasonable as held in the decision of the Supreme Court in Michigan Rubber (India) Ltd. Vs. State of Karnataka; (2012) 8 SCC 216. In the absence of any proof of these vitiating factors, the Court would loath interfere with the decision of the executive agency entitled to consider the matter – in the present case – the consideration of the bids furnished by the potential suppliers to the AIIMS. The file notings indicate that the petitioners and the officials concerned did highlight the issues sought to be agitated in these proceedings. Furthermore, neither the AIIMS nor the second respondent are stating in these proceedings that the product to be ultimately supplied would be divorced from the tender specifications especially Para 1.[1] of the schedule.
8. In these circumstances, the Court finds no infirmity with the decision of the AIIMS to award the tender to the second respondent.
9. The petition is, therefore, dismissed.
10. Order dasti.
S. RAVINDRA BHAT, J
(JUDGE) NAJMI WAZIRI, J (JUDGE) AUGUST 29, 2013 ‘sn’