Delhi High Court
M/S. Bipson Surgical Private ... vs Govt. Of Nct Of Delhi & Anr. on 21 November, 2008
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 6177/2008
Reserved on : November 10th, 2008
% Date of Decision : November 21st, 2008
M/s. Bipson Surgical
Private Limited ..... Petitioner
Through: Mr. S.C. Singhal,
Advocate
Versus
Govt. of NCT of Delhi
& Anr. ..... Respondents
Through: Mr. Madan, Advocate for
Respondent Nos. 1 & 2.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
MANMOHAN, J
1. The Petitioner has filed the present writ petition under
Article 226 of the Constitution of India praying for issuance of an
appropriate writ, order or direction to the Respondents to either
consider the Petitioner's tender or in the alternative to quash the
entire tender process.
2. Briefly stated, the facts of this case are that the Respondent
No. 2 floated a tender for surgical consumables through Central
Procurement Agency being Tender Enquiry No. 2/DHC/CPA/2008
by publishing an advertisement in the newspaper "The Hindustan
Times" on 7th July, 2008. It is pertinent to mention that in the
tender documents it was specifically stipulated that information
had to be provided in a CD and non-submission of the same would
render the bid liable for cancellation. The relevant portion of the
tender is reproduced hereinbelow for ready reference :-
"2. Details of surgical items quoted in
envelope CPA-2 as per enclosed Performa placed
at Annexure-B.
a) Information above (as per
annexure B) have to be provided
in CD.
b) Non submission of information
above (as per Annexure-B) in CD
will liable to cancellation of
tender without assigning any
reason/notice."
3. Mr. S.C. Singhal, learned Counsel for the Petitioner stated
that officials of the Respondents illegally and deliberately removed
the CD filed by the Petitioner along with his tender. The relevant
averments in the writ petition with regard to the CD is reproduced
hereinbelow :-
"15....on enquiry it was revealed that the tender
of the Petitioner has been rejected on the
ground that it does not contain the CD and
similarly tender of M/s. RomSons Scientific
Surgical and M/s. Sahnisons were also rejected.
It is submitted that so far as the Petitioner is
concerned, it was a manipulation on the part of
the officials/staff of the Respondent as
Respondent immediately made personal
complaint to the concerned official who called
for the tender file and it was demonstrated by
the Petitioner representative to the CMO that his
list as detailed out in the CD was enclosed and
that the list contained the fact that CD is
enclosed and it was also seen that the Pins were
found removed by virtue of which CD was
affixed / attached to tender document."
4. In the alternative, it was submitted by Mr. Singhal that what
was contained in the CD was duly furnished on paper and thus the
Respondents failed to appreciate that mere filing of CD served no
purpose.
5. Mr. Madan, learned Counsel for Respondents contended that
the technical bids were opened on 4th August, 2008 by a Technical
Evaluation Committee comprising of gazetted officers in the
presence of representatives of all the bidders. He further
contended that as no CD was found along with the Petitioner's
technical bid, the Petitioner's tender along with three other similar
cases was rejected. He stated that decision to that effect was
announced in presence of all the bidders.
6. In the counter-affidavit also the Respondent has taken a
categorical stand that no CD was found along with the Petitioner's
technical bid, as was mandatorily required in accordance with the
terms and conditions of the tender documents. However, learned
Counsel for the Respondent stated that it seems as if the
Petitioner had filed its CD in the sealed price bid envelope, which
had not been opened by the Petitioner.
7. During the hearing held on 10th November, 2008 we had
asked the Respondents to produce the Petitioner's price bid and
after getting confirmation from the Petitioner's Counsel that the
Petitioner's seal was intact, we had opened the Petitioner's price
bid. Along with the Petitioner's price bid we had found a CD filed
by the Petitioner in a sealed cover.
8. When confronted with this situation, the Petitioner's Counsel
stated that the Petitioner had filed two CDs, one along with
technical bid and the other along with price bid. It is pertinent to
mention that the Petitioner has neither in the writ petition nor in
its rejoinder taken the stand that it had filed two CDs, one along
with technical bid and another with the price bid. In any event, in
view of the specific denial by the Respondents, which is supported
by the contemporaneous documents like the Minutes of Meeting of
Technical Evaluation Committee, which has been signed by as
many as six gazetted officers, we are of the view that in this writ
petition we cannot reach a conclusion that the Petitioner had filed
a CD along with its technical bid or that the Petitioner's CD had
been removed mala fide. In our view, the Petitioner's case at best
raises several disputed questions of fact which cannot be
adjudicated upon except by extensive evidence and cross
examination which we in the writ jurisdiction cannot go into.
9. As far as the Petitioner's submission with regard to the
essentiality of a CD is concerned, we are of the view that in view
of the mandatory stipulation in the tender and the fact that the
Petitioner had participated in the tender without demur, the
Petitioner is estopped from challenging the said tender term. It is
also relevant to note that in the present writ petition there is no
challenge to the legality or validity of any of the tender terms.
Therefore, we are of the view that all bidders had to submit a CD
along with their technical bid and non-furnishing of the CD would
entitle the Respondents to reject the bid of the tenderers - as was
done in the present case.
10. Consequently, the present writ petition is dismissed. The
interim order dated 25th August, 2008 stands vacated.
MANMOHAN, J
MUKUL MUDGAL, J
November 21st , 2008
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