Bombay High Court
Premal Shankarlal Mehta vs The Additional Director Central ... on 10 April, 2023
Bench: Sandeep V. Marne
2023:BHC-OS:2723-DB
18.9328.23-wpl.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 9328 OF 2023
Premal Shankarlal Mehta ..... Petitioner
Vs.
The Additional Director General,
Government Health Scheme, Mumbai ..... Respondents
Mr. Saleel Borwandkar for the Petitioner
Dr. Uday Warunjikar with Jenish Jain for the Union of India
CORAM: S.V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE,J.
DATED : APRIL 10, 2023
P.C.
1. Respondent No.1 had floated tender on 1st
February 2023 for supply of medicines and drugs to Central
Government Health Schemes. The technical and financial
bids were opened. The Petitioner was L1.
2. The learned Counsel for the Petitioner submits
that there was no need to cancel the tender process. The
Petitioner was declared as L1. The entire process of
technical evaluation was carried out by verifying the
documents and also on the field. The learned Counsel
Basavraj 1/5
18.9328.23-wpl.docx
submits that as per the General Financial Rules 2017 the
rejection of the bid is justified only when effective
competition is lacking or all bids and proposals are not
substantially responsive to the requirements of the
procurement documents, or the bids / proposals prices are
substantially higher than the updated cost estimate or
available budget or none of the technical proposals meet the
minimum technical qualifying score. According to the
learned Counsel, none of these reasons are available for
cancelling the tender process. The tender process has been
cancelled in arbitrary manner. It is further submitted that
21 days are available for processing the tender from the
date of advertisement. The said date can also be extended.
The Respondents, without waiting for the same, have
abruptly issued the fresh tender. According to the learned
Counsel, as per clause 7.5.11 of the Manual for Procurement
of Goods, in case where responsive bids are available the
aim should be to finalise the tender by taking mitigating
measures. According to the learned Counsel, the tender
process cannot be cancelled in arbitrary manner and
retender cannot be resorted to as a matter of course. The
retender would be prejudicial to the interest of the
Basavraj 2/5
18.9328.23-wpl.docx
Petitioner. The financial bids were opened. The rates were
disclosed. According to the learned Counsel, as the process
was completed, the said tender process ought not to have
been cancelled.
3. We have heard Dr.Warunjikar, the learned
Counsel for the Union of India.
4. The cancellation of the earlier tender process
was challenged by bidders who were L4 and L5 in the earlier
tender process by filing Writ Petition (L) No.8894 of 2023.
The present Petitioner was Respondent No.3 in the said
matter and was represented. This Court, under order dated
31st March 2023 dismissed the said Writ Petition.
5. We had observed that now pre-bid meetings have
been held on 24th March 2023 and 27th March 2023. It has
been clarified that as per the previous tender documents,
MSE certificate in the form of UAM alone was considered,
which resulted in many eligible MSE bidders being
considered as non MSE by the evaluation committee. It was
informed in the said meeting that the clarification regarding
correction of MSE status was sought from GEM Category
Manager, as there was no option on the GEM portal to
Basavraj 3/5
18.9328.23-wpl.docx
accord the MSE status after the opening of 2/26 schedules
for financial evaluation. To provide a fair opportunity to all
the bidders and as per the instructions from GeM, the bid
was cancelled and tendering was done again. All the
schedules of the previous tender stands cancelled. The
queries which were raised in the pre bid meeting were
clarified, which are as under:
Clarification was asked by the It was clarified that MSE
bidders whether only MSE certificate in the form of
certificate in the form of UAM shall Udhyam registration shall
be accepted as they are not able to also be considered as valid
generate UAM now. for obtaining benefits of
MSE.
Whether the rates are separate for The discount is not
generic and branded drugs? separate for generic or
branded drugs and is the
same for both
Whether it is mandatory to supply The medicines which are
medicines in the same brand only? prescribed in brand name
shall be supplied in the
same brand only and shall
not be substituted. Penalty
shall be imposed for each
instance of substitution.
6. In the said judgment and order, we have also
observed that no rights have been crystalized in favour of
the Petitioner who was Respondent No.3 in the said Writ
Petition. No work order was ever issued nor any one was
declared as a successful bidder.
7. Act of Respondent Nos.1 and 2 does not smack
Basavraj 4/5
18.9328.23-wpl.docx
of mala fide or arbitrariness. The reasons are given for
cancellation of the tender process. Fresh tender process
has been initiated.
8. The Petitioner has also participated in the fresh
tender process by filling in his bid on 3 rd April 2023. After
submitting his bid in the new tender process, the Petitioner
is assailing the cancellation of old tender process.
9. It appears that to provide fair opportunity to all
the bidders and as per the instructions from GeM, the bid
was cacnelled and fresh tender was issued again. In the
earlier tender process, there was no option on the GEM
portal to accord the MSME status after opening of 2/26
schedules for financial evaluation and because of that some
MSMEs could not have participated in the said tender
process.
10. In light of the above, no case for interference is
made out. The Writ Petition, as such, is disposed of. No
costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
Basavraj 5/5
