Sun Broadcast Equipments Pvt Ltd v. Prasar Bharati

1. The petitioner has filed the present petition, inter alia, praying that an appropriate direction be issued to respondent no.1 (Prasar Bharati) to reject the bid submitted by respondent no.3 (Zoom Communications Pvt. Ltd.) in response to an invitation to tender dated 11.01.2023.

2. Respondent no.1 issued a notice dated 11.01.2023 inviting bids for “SITC of 4 Cameras MCUs (Multi Camera Units)” of an estimated value of ₹19,47,00,000/-. The petitioner furnished its bid pursuant to the said invitation which was subjected to evaluation. The petitioner was found to be the second most lowest tenderer and was placed at L-2. The bid of respondent no.3 was found to be the lowest (L-1).

3. It is the petitioner’s contention that the bid furnished by respondent no.3 was technically non-compliant. According to the petitioner, respondent no.3 had supplied the equipment, the sale of which was discontinued by the manufacturer. It is earnestly contended on behalf of the petitioner that the equipment, the sale of which had been discontinued by the manufacturer, did not qualify the condition of not being end-of-life as stipulated by respondent no.1. The petitioner relies on the “Technical Specifications for SITC of 4 Cameras MCUs” issued on 13.12.2022 which expressly provides as under:

4. The petitioner has also furnished screenshots from the websites of Original Equipment Manufacturers (OEMs) which indicate that the sale of some of the equipment offered by respondent no.3 had been discontinued.

5. Mr. Sharma, the learned senior counsel appearing on behalf of respondent no.1 does not dispute that respondent no.3’s offer included supply of equipment, the sale of which had been discontinued by the OEMs. He however, submits that the fact that the OEMs had discontinued the sale of a particular product, could not be construed as the said product fall within the scope of the expression “end-of-life”. According to him, the expression “endof-life equipment” would cover such equipment in respect of which the OEMs does not furnish a warrantee of three years as required. Mr. Sharma drew the attention of this court to paragraph 6 of the counter affidavit filed by respondent no. 1. We consider it apposite to reproduce the same:

available. The Petitioner has contended that the manufacture of some of the material has been stopped. Stoppage of manufacture of material would not make the material end of life material. For instance, if a product is manufactured till 2020 and its warranty, maintenance and spares support is available from the original manufacturer till 2025, such equipment would attain end-of-life status only in 2025 and not in 2022 or 2023. The equipment that has been offered by Respondent No.3 has the requisite support from the original manufacturer and as such is not an end-of-life. Thus, there is no invalidity in the bid submitted by Respondent No.3 so as to warrant its cancellation.”

6. Mr. Sharma also submits that the order for purchase of equipment was placed on respondent no.3 on 20.10.2023 that is, on the date when the present petition was first listed before this court. He submits that respondent no.3 had completed the supplies and the contract in question was closed. He submits that the equipment supplied by respondent no.3 were compliant of the tender conditions inasmuch as the supplies were supported by warranties issued by the concerned OEMs.

7. On a pointed query of this court as to whether the term “end-of-life equipment” as mentioned in the tender documents meant more than the requirement of the OEMs furnishing the warranties as required under the tender document; Mr. Sharma referred to the two conditions of the “Technical Specifications for SITC of 4 Cameras MCUs” issued on 13.12.2022. The same are set out below:

“III. Supply, Installation, Testing and Commissioning (SITC): b) It will be the bidder’s responsibility to ensure aftersales services. A warranty for 03 years, from the date of commissioning, will need to be provided along with the bid. This warranty must be from manufacturers of, but not limited to Camera Chains, Lenses, Vision Mixers, Sound Mixers, Intercom Systems, Routers, etc.

(XII) WARRANTY:

a) The system should carry a warranty of three years from the date of accepted consignment at the consignee’s premises. In the eventuality including software failing during this period, such fault shall need to be rectified or the relevant part / equipment replaced free of cost to Doordarshan. The OEM will be required to give undertaking to this effect along with the bid. b) After sales service support for an additional 02 (two) years for repairs / maintenance / replacement of the offered system after the completion of warranty period should also be provided. The OEM will need to give an undertaking to this effect along with the bid. c) Warranty should coverall hardware, software and modules of the complete system. d) Bidders are required to submit details of after sales service arrangements for the equipment including that of infrastructural facilities available in India.”

8. It is apparent from the above that according to respondent no. 1, the expression “end-of-life equipment” is required to be construed in compliance of the other specifications mentioned in the same document. In other words, Clause (c) of Article I of the tender specifications would be a surplusage and does not mean anything more than what is set out in the latter part of the specifications.

9. We are inclined to agree with the submissions of the learned counsel for the petitioner that the term “end-of-life equipment” must necessarily mean something other than the other conditions as have been set out in the tender specifications. The term “end of life” is not defined and must be construed in its ordinary meaning. It conveys the meaning that the product must not have been rendered obsolete. Discontinuance of the sale of product is indicative that the product is obsolete. In the present case, respondent no. 1 is seeking to impute meaning to the words that cannot be readily inferred in the manner as construed by it. However, we are unable to agree that any relief can be granted to the petitioner at this stage considering that the supply of equipment is complete.

10. We consider it apposite to observe that it is necessary for respondent no. 1 to ensure that the terms used in the tender documents are not obscure and should be such that are easily understandable by the prospective bidders. Wherever necessary, the terms must be clearly defined. Any ambiguity in the material terms of the tender documents is likely to subvert the process of competitive bidding.