Anandharam And Co. vs Directorate Of Health Services ...
2008 Latest Caselaw 693 Del

JUDGMENT

T.S. Thakur, J.

1. The short question that falls for determination in this writ petition is whether the petitioner was illegally deprived of an opportunity to submit its tender in response to a tender notice issued by the respondent for supply of surgical consumables. The petitioner's case is that the tender documents downloaded by it from the internet were incomplete in as much as it did not have the requisite specifications for the material to be supplied apart from the fact that the said document had certain discrepancies in the same. A letter dated 4.10.2007 allegedly written by the petitioner to the Director, Health Services, Karkardooma, Delhi lodged a protest against the denial of a fair opportunity to him to make the supplies. Another letter dated 8.10.2007 addressed to the Chief Minister of Delhi sought certain clarifications and asked for re-tendering of the supplies. Having received no response from the respondents to the said request the petitioner has sought a writ of certiorari setting aside the tender process and a mandamus directing the respondent to re-tender the supplies and to allot the same only after following a fair and non-discriminatory procedure. Time now to state a few facts:

2. The respondents invited sealed tenders from licensed manufacturers of surgical consumables for awarding a running rate contract for a period of one year for the supply of the said consumables to the hospitals being run by the Government of NCT of Delhi. The tender notice was given wide publicity in English and Hindi dailies throughout the country. The tender notice inter alia stated that the tender documents could be obtained from the office of the Chief Medical Officer I/C CPA at Directorate of Health Services Govt. of NCT of Delhi F-17 Karkardooma, Delhi-32 w.e.f. 10.9.2007 up to 8.10.2007 on any working day between 10 A.M. To 5 P.M. on payment of Rs.2000/- in the form of a Demand Draft drawn in favor of Director Health Services Govt. of NCT of Delhi, New Delhi. The tender notice further stated that the tender documents were available on the website of the Government of Delhi and could also be downloaded from there. In the event of the document being down loaded from the website, the tenderer was required to deposit a demand draft of Rs. 2000/- along with the tender form drawn in favor of Director, Health Services, Govt. of NCT of Delhi, New Delhi.

3. The petitioner's case is that it downloaded the tender document from the website of the Government of Delhi as mentioned in the tender notice but could get only 86 pages of the said document as the remaining pages were not available. The petitioner's further case is that the tender document had discrepancies in the same which required clarification, in which connection the petitioner claims to have addressed a letter dated 4.10.2007 i.e. four days before the last date of submission of the tender to the Director of Health Services. Since the petitioner's case turns entirely on the submission of the said document and the grievance made in the same, we may at this stage extract the same in extenso:

Dated 4-10.2007

To

The D.H.S.

Karkardooma, Delhi-10092

Re.: Tender Enquiry No.2/DHS/CPA/2007 due on 9-19.2007 for Surgical items and Surgical dressings.

Madam,

The subject T.E. was downloaded from the net and is very much astonishing that we are facing hardships.

(a) It is seen for the above T.E. that this tender is mentioned for both the groups of Surgical items and surgical dressing that the firms marketing experience should be three years and drawal should be Rs.5 crores for Surgical items and Rs.2 crores for Surgical Dressings.

(b) It is pointed out that you have mentioned that the specification can be collected from the CMO, Delhi and when we go to him the same is not available with him at present.

(c) The T.E. is very much confusing if the same not available on net then what is fun of giving advertisement in the paper that the Tender can be downloaded from the net it is just a joke and this must be seriously looked into.

(d) Further we are not clear about your Clause for enclosing a S.T.C. Certificate and the Government has stopped giving such certificates.

(e) Quoting of rates vide page No.63 of the T.E. is further confusing and surprising. If a firm has quoted different rate to other organizations/institutions, the firm will be debarred for three years from participation in the coming three years. Every organization has, his own demand, quality of products their specifications etc. and rates will be different for local delivery and outstation delivery of stores.

(f) The serial Nos. mentioned in the T.E. for Technical Bid and price bid. Different items viz. item No.5504 - Sterile Evacuated Blood Collection Tube (Plastic) with clot activator for serum chemistry determination Tube six 13 mm x 100 mm with 7 ml draw volume in Technical Bid and Serial No. 5504 of Price Bid - Sterile Evacuated Blood Collection Tube (Plastic) with acrylic gel and clot activator for serume chemistry determination Tube Size 13 mm x 75 mm with 3,5 ml draw volume.

In view of the facts stated above, after consulting our competitors and serious thought we are sorry we are unable in participating your tender and our other competitors are also not able in participating in your subject tender.

Thanking you.

Yours faithfully, sd/-

Anandharam and Company

Copy to : The Health Minister, Govt. of NCT, Delhi.

4. The petitioner further alleges that on 8.10.2007 he addressed a letter to Smt. Sheela Dixit, Chief Minister, Govt. of NCT of Delhi in which it was inter alia pointed out that the tenders specifications were not clear and that when the Chief Medical Officer (CMO) was approached for specifications, he ignored the call stating that he was busy and could be called sometime later. The respondents did not, according to the petitioner, either clarify the specifications or furnish the complete tender document to the petitioner thereby preventing him from entering the competitive bidding process and securing the allotment of the contract in his favor.

5. In response to a show cause notice issued by this court the respondent has appeared and filed a counter affidavit in which it is inter alia stated that no letter or communication dated 4.10.2007 was ever received by them as alleged. Insofar as reminder dated 24.10.2007 is concerned, the same was, according to the respondent, received only at the reception and that too on 31.10.2007 in the office of Chief Medical Officer, Director of Health Services, Govt. of NCT of Delhi. The allegation that the document downloaded from the website was incomplete or insufficient to enable the tenderers to participate is denied. According to the respondents, as many as 34 firms had participated in the tender process from all over the country by downloading the tender forms from the website without any difficulty. Another 31 tenderers had responded to the tender inquiry without complaining of any difficulty either in understanding the specifications or in submitting the tender. The writ petition is, according to the respondents, liable to be dismissed on account of inordinate delay and laches, in the filing of the same keeping in view the fact that the tender inquiry had been published on 8.9.2007 while the petition was filed only on 16.11.2007 i.e., long after the expiry of the last date for submission of the tender document.

6. We have heard learned Counsel for the parties and perused the record. The short question that falls for determination, as noticed earlier, is: Whether the petitioner was unfairly denied an opportunity to participate in the tender process? The petitioner's version in this regard is that the tender document available on the website of the respondent was incomplete in as much as only 86 pages were available on the website which disabled the petitioner from submitting a proper tender. This position has been denied on affidavit by the respondent, according to whom as many as 65 tenders have been received out of which 34 are those in which the tenderers had downloaded the tender document from the website. None of these tenderers have made any grievance regarding the tender document being incomplete or insufficient in details.

7. The petitioner has further placed reliance upon letter dated 4.10.2007 extracted earlier to argue that it had made a grievance against the lack of specifications and non-availability of the complete tender document on the website. The receipt of the said document is stoutly denied by the respondent on affidavit. That denial, in our opinion, gives rise to a seriously disputed question of fact which cannot be satisfactorily resolved in the present writ proceedings. At any rate there is nothing on record to conclusively show that the petitioner had indeed made an attempt to secure the tender document from the office of Director of Health Services, Govt. of NCT of Delhi on payment of the requisite fee as indicated in the tender notice. There is no reason why the petitioner should have entered into correspondence as to the alleged non- availability of the tender document on the website when the very same document could be purchased by the petitioner from the office of the Director of Health Services, on payment of Rs. 2000/-, the price stipulated for that purpose. That is especially so when the petitioner had an authorized representative in Delhi, through whom both the communications dated 4.10.2007 and 8.10.2007 are alleged to have been tendered by it to the addressees.

8. That apart, letter dated 4.10.2007 allegedly addressed by the petitioner does not find any mention in the subsequent letter dated 8.10.2007 allegedly addressed to the Chief Minister of Delhi. If letter dated 4.10.2007 had indeed been written by the petitioner to the Director of Health Services, there is no reason why the petitioner would not have made mention of the same in its letter dated 8.10.2007 addressed to the Chief Minister. The entire story about the petitioner having written a protest letter, thus, is not free from serious doubts and suspicion. At any rate, the petitioner has not acted in a diligent manner as a prudent person would have done. If the tender enquiry was vague or suffering from any discrepancies or if the tender document was not available and the Director of Health Services was not responding to the request for issue of the tender document or for clarifications, the best recourse for the petitioner to take was to obtain a complete set of the tender document from the authorized outlet mentioned in the tender notice or to initiate legal proceedings for appropriate redress. Instead of doing so the petitioner sat over the matter for a long time waiting for the entire tender process to be completed and belatedly approached this court on 16.10.2007 long after the last date for submission of the tender had passed. There is no explanation much less a reasonable and acceptable one forthcoming from the petitioner for this delay in the filing of this writ petition. The writ petition, therefore, deserves to be dismissed on that ground also.

9. Learned Counsel for the petitioner next argued that some of the terms and conditions incorporated in the tender document were wholly unreasonable and unfair and deprived the tenderers of a reasonable opportunity to compete for the allotment of the work. We do not consider it necessary to examine that aspect in the present proceedings having regard to the fact that the petitioner has on account of his own omission forfeited his right to make any grievance against the tender process. We could understand if the petitioner had within the time allowed for submission of the tenders agitated the question of validity of the tender process or any condition stipulated in the same. Having failed to do so we cannot allow the petitioner to rake up that issue after the entire process involving as many as 65 different tenderers has been carried forward and is about to culminate to in the award of a proper contract. The legal position regarding the scope of judicial review of the tender conditions is even otherwise well settled by a catena of decisions of the Supreme Court, including those in Tata Cellular v. Union of India (1994) 6 SCC 651 and Air India Ltd. v. Cochin International Airport Ltd. . The Court has in those cases held that the State can stipulate its own terms for invitation of tenders and the terms so fixed cannot be struck down unless they are vitiated by malafides or are otherwise arbitrary or unreasonable. The power to fix the terms and conditions of the tender is in other words left to the Government. In Directorate of Education and Ors. v. Educomp Datamatics Ltd. and Ors. (2004) 2 SCC 19, the Court has, in this regard, observed:

12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand insetting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative policy decision only if it is arbitrary, discriminatory, malafide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or malafide.

10. In the instant case the petitioner has neither established any malafides nor is there any arbitrariness in the stipulation of any condition of the tender, assuming that the petitioner can assail the terms and conditions after having forfeited the right to submit a tender by his own inaction and lack of diligence. In the result this writ petition fails and is accordingly dismissed but in the circumstances without any orders as to cost.