Delhi High Court

Instrumed (India) International vs All India Institue Of Medical ... on 29 August, 2013

Author: S.Ravindra Bhat

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of Decision : 29.8.2013
+      WP(C) 5950/2012
       INSTRUMED (INDIA) INTERNATIONAL                    ..... Appellant
                           Through :    Ms. Aastha Dhawan, Advocate

                           versus

       ALL INDIA INSTITUE OF MEDICAL SCIENCES & ANR.
                                            ..... Respondents

Through : Mr. Mukesh Rana, Advocate for R-2 Mr. Rishab Kaushik, Advocate for R-1

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) W.P.(C) 5950/2012 & CM 10174/2013(vacation of stay on b/o. R-2)

1. The petitioner questions the award of contract to the second

respondent pursuant to the Notice Inviting Tender (hereinafter referred

to as the „NIT‟) for supply of assembly of sinks with scrub in Animal

House & U.G. Laboratory in the Physiology Department of All India

Institute of Medical Sciences (AIIMS).

2. Briefly, the facts of the case are that the NIT (hereafter referred

to as the "NIT") published sometime in August, 2012 required the

bidders to submit their offers/letters by 22nd August, 2012. The

tenders were scheduled for opening on 24th August, 2012. The

equipments to be supplied were for an estimated cost of Rs.4,98,600/-.

The tender specifications, in the schedule of the work to the NIT spelt

out the following requirements:-

S.No.    Description of items     Qty   Rate       Unit    Amount
1.1      P/Fixing stainless steel
         scrubber floor mounted
         with pedestal base of
         required     size    and
         provision     of    soap
         operation by knee
         made of S.S. sheet of
         high quality of grade
         304. The trough is
         made of 16 gauge &
         other structure of 18
         gauge        prefinished
         stainless.
         The three bay scrubber
         of size 2250 x 675 x
         975 mm (front) and
         back of height 1105
         mm approximately will
         have     three     water
         shower post sensor
         operated -cum- foot
         operated for hot & cold
         water supply & with
         drier to facilitate 3
         persons     to     scrub
         simultaneously. Also,
         the scrub should have





          the following :

         1. Scrub by should also
         have        foot     pedal
         operated Faucets in
         parallel to sensors
         2. Scrub unit should
         have       liquid     soap
         dispenser,            wall
         mounted type sensor
         operated of 800 ml.
         Capacity.
         3. It should have a
         specially         designed
         (floor mounted) Gyser
         with      provision     of
         ceramic type element
         (Make
         Bajaj/Crompton/Venus)
         capacity of Gyser
         should be minimum 50
         Litres.
         4. Scrub should have
         an individual electronic
         descaler to ensure not
         to scale the water pipe
         line/tapes for smooth
         functioning of the unit
         5.        Scrub Station
         should incorporate a
         filtered solenoid value
         with serviceable "Y"
         strainer filter.
         6.     It     should    be
         compatible with all the
         regular and standard
         plumbing, all plumbing
         fittings should be S.S.





          or brass.
         7. Scrub should be
         equipped           with
         thermostatic mixer to
         ensure safe working of
         the unit.
         8. The system should be
         suitable to operate on
         240 +/- 10% Hz single
         phase power supply.
         9. In built 0.25 HP 2          2,49,300 Each      4,98,600.00
         pump                 of
         Usha/Crompton

3. The petitioner submitted its bid for a sum of Rs.3,88,908/-. The

other bidder‟s offer i.e. of the second respondent according to the

AIIMS was found responsive / eligible and was taken up for

consideration. Apparently, at the stage of the bid processing, the

petitioner represented to the AIIMS and contended that the second

respondent‟s offer did not fulfil the criteria of the technical

specifications, i.e. the latter‟s assembly of sinks with scrub could not

be operated with the knee. The petitioner‟s counsel contends that this

feature of the sink/scrub being operable with the knee was of special

importance particularly because the assembled equipment was to be

located in the operation theatre at AIIMS. Counsel emphasised that

every possibility of infection was to be avoided. That equipment

offered by the second respondent would not conform to the

specification in as much as it could not be operated by the knee, it

would have scope for spreading infection and increasing the likelihood

of contamination.

4. After notice was issued, the AIIMS entered appearance. On a

number of dates of hearing, time was granted to the respondent to file

its counter-affidavit, which it ultimately did on 10th April, 2013.

5. During the course of the proceeding, upon directions to the

AIIMS, learned counsel for the AIIMS has produced the relevant file

and its noting sheet. This Court had the benefit of reading the same.

The noting sheet indicates that the petitioner‟s representation dated

25th August, 2012, objecting to the second respondent‟s certificate and

also stating that the equipment did not incorporate the feature of

"Soap Operation with knee" has been received and considered. A sub-

note was prepared in that regard on 29th August, 2012. The higher

authority concerned, i.e. the Superintendent Engineer took note of this

representation but proceeded to hold that both the bidders, i.e. the

petitioner as well as the second respondent were eligible and could be

considered. Eventually, after the matter was processed on 1 st

September, 2012, the AIIMS stated that both the bids were in

compliance with the terms of the NIT. On a comparative analysis, the

second respondent‟s bid was found to be more competitive as against

the petitioner‟s bid, by which they offered to supply the equipment.

Interestingly, the second respondent‟s contention is not that the feature

with regard to the operation of soap by knee is not an essential

condition. All that it states is that this feature requires incorporation

of an additional pump which the second respondent would undertake.

This is apparent from the following extract of the second respondent‟s

reply:

"6.That the respondent No.2 produced experience documents/certificate of higher automatic version of same products which was required by the respondent No.1 in the required tender, it is pertinent to mention that respondent No.2 does holds capacity and expertise to supply feature which was sought in the tender by respondent No.1, even it pertinent to mention that such feature does not require too much of skills. It is just fabrication of same product with semi automatic settings. It requires just an additional pump to make this feature available in the required product which is done by the respondent No.2 in various other hospital directly or indirectly.

7. That respondent No.2 submitted the experience certificate of 2 completed supply where the specification of product was higher than the required specification, it is also pertinent to mention that in the same NIT document it was mentioned in the section 1.1.2 of the said tender that "scrub unit should

have liquid soap dispenser, wall mounted type sensor operated of 800 ml capacity" which is main option to dispense soap during scrub procedure. It is pertinent to mention that specification mentioned in Section 1.1 of the tender document says "provision of soap operation by knee" that clearly indicates the importance of this feature anyhow respondent No.2 had provision to fabricate such scrub unit which was quoted in the tender."

6. Ld. Counsel for the AIIMS submitted that there is no question

of departure from the tender conditions including the features

indicated in the Schedule especially Para 1.1. He also relied upon the

judgment of the Supreme Court reported as Tejas Construction v.

Municipal Council, 2012 (6) SCC 464. It is apparent from the above

discussions that the second respondent‟s bid was considered compliant

with the terms of the NIT. The petitioner alleges that the second

respondent has not supplied the knee operated soap dispenser which is

the subject matter of the NIT.

7. This Court is conscious of its limited jurisdiction and role in

judicial review. The Court would intervene in such matters where it

is apparent that the decision arrived at is tainted procedurally or lacks