Delhi High Court
Thermo Fisher Scientific India ... vs Ministry Of Agriculture And ... on 11 April, 2019
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of order: 11.04.2019
+ W.P.(C) 2088/2019, C.M. Appl. No. 9753-9754/2019
THERMO FISHER SCIENTIFIC INDIA PVT. LTD.
..... Petitioner
Through: Ms. Jasmine Damkewala, Ms.
Vaishali Sharma, Advocate
versus
MINISTRY OF AGRICULTURE AND FARMERS WELFARE
AND ORS.
..... Respondent
Through: Mr. Manish Mohan, CGSC with Ms.
Manisha Saroha, Advocate for
respondent No. 1 and 2.
Mr. Abhishek Kumar Chaudhary,
Advocate for respondent UOI
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE PRATEEK JALAN
%
S. RAVINDRA BHAT, J. (ORAL)
1. The petitioner‟s challenge is to the rejection and non
consideration of their bid, for supply of Liquid Chromatography Mass
Spectrometry, which the procuring agency i.e. Ministry of Agriculture
and Farmers Welfare, wishes to purchase. The bidders are the
suppliers, namely, Thermo Fisher Scientific India Pvt. Ltd (petitioner
herein); RITES (Respondent No.3) is the agency for evaluation of the
tender.
2. Specifications in the NIT, required the equipment to conform to
various standards/requirements. Through a corrigendum, issued after
the publication of the NIT, the relevant specification with which the
petitioner is concerned was introduced, which reads as follows:
"should be Channel Electron Multiplier Tube (EMT)
detector or photomultiplier tube (PMT) or Discreet
Dynode detector (DDD) having linear dynamic range of
at least 6 orders or higher".
Note 3 of the instructions to the bidders, states that the claim of
technical specifications made by the bidder company should be
available on the principal‟s website and printed brochure.
3. The only dispute is with regard to the condition that the
equipment offered by the petitioner must meet the prescribed standard
of a range of at least 6 orders or higher. The petitioner argued that the
bid, originally submitted, mentions that the equipment offered by it
had a dynamic range of 5 orders or higher. However, in the
documents furnished in support of the bid in the form of technical
literature and other annexures to the bid, it was specifically stated that
the equipment possessed linear dynamic range of at least 6 orders or
higher. The respondent in its correspondence highlighted this
discrepancy besides two other objections i.e., that the original
equipment manufacturer‟s (hereinafter, "OEMs") website, i.e. that of
Thermo Fishers Scientific Inc., did not contain the specifications
which the petitioner claims to have in its product. Secondly, it was
stated that the documents submitted by the petitioner in support of the
technical specifications were not serialised and did not contain any
particulars.
4. The respondents have produced the relevant extracts from the
copy of the Tender Evaluation Committee‟s recommendations. It is
not in dispute that the principal reason cited for rejection of the
petitioner‟s bid is two-fold i.e. the discrepancy with respect to the
range of 5 or 6 orders - considering 6 orders is essential and secondly,
that the specifications are not on the website or portal of the OEM.
5. So far as the serialisation of documents is concerned, there was
no requirement in the tender documents that only numbered
documents would be considered as part of the bidders‟ technical
literature.
6. It is submitted on behalf of the respondent that the particulars
and specifications of OEM is essential and cannot be waived. Citing
the instance of the successful tenderer, who also sourced equipments
from a third party agency, the respondents stated that in that case, the
OEM‟s website did contain all specifications and consequently, the
petitioner‟s bid as well as the others, which did not fulfil this criteria,
had to be rejected.
7. This court is of the opinion that the uniform application of this
criteria, has resulted in arbitrary consequences. The bid evaluation
committee noted that out of the four bidders concerned, the
specifications were not available on the OEMs‟ website, in not less
than three cases. According to the petitioner, OEMs are reluctant to
put out all specifications, given that some information could be
confidential or subject to protection of intellectual property rights. In
the opinion of this court, this concern appears to be reasonable and
justified and is demonstrated by the fact that three of the four overseas
OEMs concerned have not published all specifications online. Thus,
the rejection on this score cannot be upheld.
8. So far as the question of the discrepancy between the bid and
the documents is concerned, we notice that on 14.12.2018, after a
query was addressed by the respondent, the petitioner had stated in its
reply that the reference to range of 5 orders is mistaken and
erroneous. This court is of the opinion that the explanation as to the
mistake can be accepted for the time being, provided the respondents,
in fact, verify the same from the OEM in some manner.
9. In view of the above discussion, we are of the opinion that the
petitioner‟s bid could not have been rejected in the manner it was. The
insistence on the wide application of Note 3, in the opinion of this
court, is also not justified. That „note‟, if treated as a mandatory
eligibility condition, in the facts of the case as demonstrated, leads to
a peculiar situation where the range of choices, available with the
public agency, with respect to the bidders, is invariably narrowed
down- in this case to only one. The insistence of such condition
amounts to a public agency dictating to OEMs, not necessarily in
India, the kind of information they should make available to the
public on a web portal. This kind of ordering of business is something
that the public agency is not expected to do. On the other hand, to
address genuine concerns with respect to the fulfilment of the
conditions of tender, the respondent could have resorted to other
methods, such as, calling upon the bidder to, if feasible, produce the
equipment and offer it for due verification, or by directly
corresponding with the original equipment manufacturer, and if there
is some problem in their response, ask the bidder to ensure that the
OEMs get in touch with the respondents in the first instance directly,
and later seek such information as is necessary within a time frame.
The other possible method, may be, is to allow the bidder to indicate
the place or places where the equipment has been purchased and
installed in India and, facilitate its inspections and due verification of
its functions at site.
10. In the light of the above discussion, the respondents are hereby
directed to process the petitioner‟s bid as well as of all the tenderers
including those whose bids were rejected on this basis, to the extent of
verifying the equipment, in the manner indicated above, i.e. through
inspection and verification of the equipment either at their premises or
at the premises of the third party vendees, provided that the bidders
facilitate the process within a reasonable time; alternatively, the
respondents shall require the bidder to, within three days, get in touch
with the OEMs and ensure that the latter communicates directly with
RITES. In that event, RITES and the Ministry of Agriculture and
Farmers Welfare shall elicit all the necessary details within one week
and give themselves an outer time limit of two weeks. The entire
process shall be completed within a time frame, preferably within
three weeks from today, in all eventualities.
11. The writ petition is partly allowed.
12. A copy of this order be given dasti under signatures of the
Court Master.
S. RAVINDRA BHAT, J
PRATEEK JALAN, J
APRIL 11, 2019
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