Siemens Healthcare Private Limited & Anr vs. Directorate General of Health Services, Central Procurement Agency & Ors. - (High Court of Delhi) (19 Jan 2021)

Tender Evaluation Committee can reject the bid, if there is a clear non-compliance of a mandatory condition

MANU/DE/0097/2021

Contract

The Petitioner has preferred the present writ petition seeking for Issuance of a writ thereby quashing the impugned order/decision dated 3rd April, 2020 and 8th April, 2020 passed by Respondent No.1 thereby unilaterally disqualifying the Petitioner and not opening the financial bid of Petitioner.

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. 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 3rd April, 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 29th May, 2020, the petitioner received an email from the respondents - communicating the reasons for its disqualification.

Non-affixation of the stamp and signature of the Notary Public on pages 2 and 3 of the document Annexure U, at the highest, was a minor non-conformity, or irregularity, or infirmity. The intention of the Petitioner to submit the undertaking as per Annexure U with due attestation is clear from the fact that, the document as submitted by it bears the attestation of the Notary Public, though only at the first page. Even if the Evaluation Committee of the Respondents felt that, the undertaking in Annexure U Format should bear the attestation on all the pages, they could and should have called upon the Petitioner to make good the said so-called deficiency or infirmity.

The Respondents have taken a hyper technical view of the matter to non-suit the Petitioner. The approach of the Respondents cannot be described as either fair or reasonable. The Respondent cannot sit with a magnifying glass while examining the bid document, with the objective of disqualifying the bidders on some or the other ground, howsoever petty or whimsical it may be. If there is a clear non-compliance of a mandatory condition, the Tender Evaluation Committee would be justified in rejecting the bid. At the same time, it cannot adopt an approach to unreasonably disqualify an otherwise qualified bidder. The purpose of scrutiny of a tender document submitted by a bidder should not be to non-suit the bidder on such hyper technical issues. Such exclusion on hyper technical approach would not be in public interest as it would curtail competition. The whole purpose of procuring goods and services by public authorities through the process of tender/ auction is to get the most competitive bids for the best product offered. Pertinently, in the present case, apart from the bidder, there was only one other tenderer, and exclusion of the Petitioner was certainly not in public interest, since the said exclusion was founded upon completely unjustified grounds.

Further, it is not the Respondent's case that, the Petitioner has not submitted the undertaking Annexure U within the stipulated time. The disqualification of the Petitioner in respect of the tender in question is quashed. In case, the respondents desire to call upon the petitioner to make good the infirmity in terms of Clause 27 by submitting any other undertaking in terms of Annexure U, the Respondents shall grant an opportunity to the Petitioner to do the needful, and then proceed to deal with the petitioner's tender in accordance with law. Petition allowed.

Tags : BID REJECTION LEGALITY