P Bhasin Pathlab Pvt Ltd vs Union Of India & Ors.
2016 Latest Caselaw 4995 Del

$~9
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Judgment delivered on: 01.08.2016

+       W.P.(C) 5777/2016 & CM 23803/2016
P BHASIN PATHLAB PVT LTD                                    ..... Petitioner
                                  versus
UNION OF INDIA & ORS.                                       ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Neeraj Grover with Mr Aditya Singh and Mr. Jiten
                      Mehra
For the Respondents : Mr Sajeev Narula, CGSC with Mr Ajay Kalra and
                      Mr Abhishek Ghai for R-1 to R-3.
                      Mr Akhil Sibal, Mr Vedanta Varma, Mr Nikhil Chawla
                      and Mr Akhil Kumar Gola for R-4.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE ASHUTOSH KUMAR

                               JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. This petition has been filed in respect of the notice inviting tender

dated 08.10.2015 which was issued by the Sports Injury Centre,

Safdarjung Hospital, which is under the Ministry of Health and Family

Welfare, Government of India.

2. This notice was in respect of the laboratory services which were to

be outsourced at the Sports Injury Centre, Safdarjung Hospital, New

Delhi on a revenue sharing basis. Eligible firms/parties/institutions were

requested to submit their offers on the terms and conditions given in the

tender document. The detail/ information of bids, which is also dated

08.10.2015, require that the service provider/prospective bidder should be

one who is already engaged in the respective field and has a good

reputation and has delivered satisfactory performance for at least three

successive years of running its own set up with NABL Accreditation and

is also on the CGHS panel of approved laboratories for a minimum period

of four years as on the date of invitation of bids. Paragraphs 10, 21 and

22 of the terms and conditions for outsourcing of laboratories read as

under:

"10. The Laboratory Services, as proposed on outsourcing, will have to offer professional ambience, uncompromising clinical quality at an acceptable cost and superior service in minimal waiting time. The investigation facility will have to function for patient care 24 hours a day for all 365 day a year. The licensee will ensure a minimum of 95% uptimeof each equipment.

xxxxx xxxxx xxxxx xxxxx

21. The following are some of the important aspects, for which a tender shall be declared non-responsive and will be summarily rejected.

(i) Tender form not enclosed (Annexure -1)

(ii) Tender is unsigned.

(iii) Tender validity is shorter than the required period

(iv) Required EMD (Amount, validity, etc.)

(v) Goods offered are not meeting the tender enquiry specification

(vi) Tenderer has not agreed to other essential terms & condition (s) of Tender Document.

(vii) Poor/ unsatisfactory past performance

(viii) Tenders who stand deregistered / banned / blacklisted by CGHS or any other Govt. Authorities.

(ix) Tenderer is not eligible as per clause 24.

(x) Tenderer has not offered all the Laboratory Equipment as specified in the Tender Document.

22. Minimum Qualification Requirements Credibility of Tenderer would have to be proved along with necessary documents like--

1) Status : whether Proprietary / Partnership firm (submit partnership deed) / Pvt Ltd company(Certificate of registration from Registrar of companies)

2) List &addresses of Partners/ Directors of bidding firm

3) Copy of Resolution of Board of Directors/ Partners expressing interest to bid in present project.

4) Memorandum and Articles of Association related to the party.

            5)     Name, Address / phone no of Authorised
                   signatory with written approval of the
                   Board/partner of bidding firm.
            6)     Income Tax permanent Account number of
                   Bidding firm.
            7)     Audited Profit & Loss statement of last three
                   successive years.
            8)     Bidder should have NABL Accreditation.
            9)     Bidder should be on CGHS panel of approved

Laboratories for a minimum period of 4 years as on the date of invitation of bids.

10) Bidder should have experience of providing un-

interrupted laboratory services to hospitals/ nursing homes or its own for at least three years.

11) The bidder must have attained a minimum annual turnover of Rs.3.0 crore in last three successive years. Bidders must submit the audited balance sheet of last three successive years in support.

12) The bidder should have a laboratory which is open round the clock, round the year (running for the last minimum one year) so that it can provide similar services to this Centre.

13) Geographical location: the main laboratory should be located within the 15 km radius from the Safdarjang Hospital, New Delhi."

(underlining added)

3. The petitioner as well as two others, including respondent no.4,

submitted their bids in response to the said notice inviting tender. The

technical bids were opened on 27.11.2015 and only the petitioner and the

respondent no.4 were found to be technically qualified. Thereafter the

price bids were opened on 04.04.2016 wherein the price bid of the

respondent no.4 was the highest and it is thereafter that the tender has

been awarded to the respondent no.4.

4. Two objections were taken by the petitioner with regard to the

award of the tender to the respondent no.4. First of all, it was contended

that the respondent no.4 has not been in the CGHS panel of approved

laboratories for a minimum period of four years as on the date of

invitation of bids. It was submitted that on 14.11.2014 an office order

had been issued by the Directorate General of Central Government Health

Scheme whereby the respondent no.4‟s empanelment with CGHS was

suspended for a period of three months or till further orders whichever

was earlier from the date of issuance of the order. Thus, according to the

learned counsel for the petitioner, this means that the respondent No.4 did

not comply with paragraph 22(9) of the terms and conditions referred to

above inasmuch as, according to the petitioner, the respondent no.4 was

not empanelled with CGHS as an approved laboratory for a minimum

period of four years as on the date of invitation of bid. It is also

submitted that because of the suspension order, the respondent no.4 also

did not satisfy sub-paragraph (vii) & (viii) of paragraph 21 of the terms

and conditions.

5. According to the learned counsel for the petitioner, the suspension

order clearly indicated that there was a poor and unsatisfactory past

performance and that the respondent no.4 stood

deregistered/banned/blacklisted by CGHS panel and therefore the bid

submitted by the respondent no.4 should have been rejected summarily as

being non-responsive.

6. In response to this argument, the learned counsel for the respondent

nos.1 to 3 as also the learned counsel for the respondent no.4 submitted

that the suspension order was only for a period of three months. The

learned counsel for the respondent nos.1 to 3 also showed us the relevant

file in which there was a document dated 28.08.2015 which had been

issued by the Directorate General of CGHS which was to the following

effect:

"F.No.S-11011/59/2015-CGHS (HEC) Directorate General of CGHS Ministry of Health & Family Welfare (Hospital Empanelment Cell)

Nirman Bhawan, New Delhi Dated 28th August, 2015

TO WHOMSOEVER IT MAY CONCERN

This is to certify that Dr.Khanna‟s Pathcare Pvt. Ltd A- 43, Hauz Khas, New Delhi has been on CGHS panel of approved laboratories since 21.3.2007. It acquired NABL accreditation in May 2008 and presently it is NABL accredited lab as per available records.

With respect to quality of services to CGHS beneficiaries and other related issues, its performance has remained satisfactory.

Dr.Manoj Jain Sr.CMO (HEC)"

7. From the above, it is evident that the respondent no.4 has been on

the CGHS Panel of approved laboratories since 21.03.2007 and therefore

even if the period of three months‟ suspension is excluded, the respondent

no.4 would not fall foul of paragraph 22 (9) of the terms and conditions

referred to above. The said document also indicates that the quality of

services provided to CGHS beneficiaries and other related issues by the

respondent no.4 have remained satisfactory and therefore it cannot be

said that the past performance has been poor and unsatisfactory.

8. Our attention is also drawn to a letter dated 29.12.2014 (which was

much prior to NIT in question) issued by the Director General of CGHS

wherein it has been stated that the suspension of empanelment was not

related to any financial irregularity and that the same was neither a de-

empanelment nor blacklisting.

9. We agree with the submission made by the learned counsel for the

respondents that the suspension of three months would not operate to the

detriment of the respondent No.4 for the purposes of the present tender.

This would be so because the requirement is of CGHS empanelment for a

minimum of four years and even if the period of three months is

excluded, since the respondent No.4 is empanelled from 2007, it would

clearly exceed the minimum period of four years empanelment. Apart

from that, we also feel that the suspension would not fall within the

category of paragraph 21(viii) which requires that the bidders who stand

deregistered/banned/blacklisted by CGHS or any other government

authority would not be considered. Suspension of three months does not

amount to deregistration, banning or blacklisting by CGHS. In any event,

the point of time when the so called deregistration/banning/blacklisting is

to be considered is the time of submission of the bids and not any prior

period. Therefore, whichever way one looks at this issue, the respondent

nos.1 to 3 cannot be faulted for having awarded the tender to respondent

No.4.

10. We now come to the second aspect which was raised by the learned

counsel for the petitioner and that is to the effect that the respondent No.4

does not have a laboratory facility in Delhi which is being run on a 24 x 7

basis. Reliance was placed for this submission on a document which has

been placed on page No.347 which was a letter issued by NABL on

24.05.2016. A query was raised before the NABL by a querist as to

whether in the application for accreditation, the respondent No.4 had

indicated its working hours. The response to this was firstly that NABL

did not have any system of asking for working hours in the application

for accreditation. It was also however stated in the said letter that as per

the assessment report of the last three years, the assessor had mentioned

that the working hours of the respondent No.4 was from 8 a.m. to 8 p.m.

According to the learned counsel for the petitioner, this clearly indicates

that the respondent No.4‟s laboratory was not functioning on a 24 x 7

basis.

11. In response to this, the learned counsel for the respondents showed

us documents from the concerned file which had been submitted by the

respondent No.4 to indicate that it had contracts as far back as from 2011

with the ESIC hospital at Rohini, etc. which required 24-hour laboratory

services. Those contracts were ongoing contracts and therefore there was

material on record to indicate that the respondent No.4 was providing 24

x 7 services.

12. The learned counsel for the petitioner, on an alleged „private‟

investigation done by the petitioner, submitted four video clips in two

CDs to respondents No.1 to 3 in order to indicate that in point of fact the

laboratory of respondent No.4 was being run on a 12-hour basis only

from 8 a.m. to 8 p.m. and that it did not have the facility of 24-hour

laboratory services. Those CDs are available with respondent Nos.1 to 3.

After examination of the same and after considering the rival contentions

of the parties, the competent authority has taken the decision to award the

contract to respondent No.4 being satisfied that the respondent No.4 is

running the laboratory services on a 24 x 7 basis. We cannot substitute

our views in place of those of the competent authority, particularly, as

this is an area of grave dispute between the parties. It would not be

proper for us to enter into this issue of deciding such disputed questions

of fact in this writ petition. Therefore, we are not interfering with the

present award of tender of respondent No.4. However, we are making it

clear to respondents No.1 to 3 that in case they find, on their own

enquiry, that respondent No.4 is not providing or unable to provide

services on 24 x 7 basis, it would be open to them to cancel the contract

with respondent No.4 in accordance with law.

13. In view of the decision rendered by us, the learned counsel for the

petitioner has fairly stated that the petitioner undertakes to vacate the

premises in question by 07.08.2016. In view of this statement, the

respondents No.1 to 3 may consider the waiver of imposition of penalty

on the petitioner.

14. The writ petition stands disposed of.

                                        BADAR DURREZ AHMED, J



AUGUST 01, 2016                          ASHUTOSH KUMAR, J
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