Delhi High Court
Xcellance Medical Technologies ... vs Hll Infratech Services Ltd. & Anr. on 5 October, 2021
$-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 11.08.2021
% Judgment delivered on: 05.10.2021
+ W.P.(C) 6643/2021
XCELLANCE MEDICAL
TECHNOLOGIES PRIVATE LIMITED ..... Petitioner
Through: Mr. Jayant Mehta, Senior Advocate
Along with Mr. Aman Varma, Mr.
Abhishek Adke, Mr. Vikrant
Zunzarrao and Mr. Huzan Bhumgara,
Advocates.
versus
HLL INFRA TECH SERVICES LTD. & ANR. ..... Respondents
Through: Mr. Nikhilesh Krishnan, Advocate for
respondent No. 1.
Mr. Vijay Joshi and Mr. Nikhil
Bhardwaj, Advocates for respondent
No. 2 / UOI.
Ms. Taru Gupta, Advocate for
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
J U D G M E N T OF THE COURT
1. The present petition has been filed by the Petitioner seeking the
following substantial prayers:
"(a) to issue a Writ of Mandamus or any other appropriate writ, order or
direction quashing & setting aside the decision dated 17th June, 2021
(Annexure K) rejecting the Technical Bid of the Petitioner;
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
(b to issue a Writ of Mandamus or any other appropriate writ or order
directing Respondent No.1 to reject the technical bid of Respondent
No.3;
(c) to issue a Writ of Mandamus or any other appropriate writ, order or
direction quashing & setting aside the decision dated 30th June, 2021
(Annexure Q) accepting the Financial Bid of Respondent No.3;
(d) to issue a Writ of Mandamus or any other appropriate writ, order or
direction directing Respondent No.1 to open and evaluate the Financial
Bid submitted by the Petitioner in accordance with the Domestic Tender
Inquiry Document dated 12th March, 2021 bearing tender ID
2021_HLL_73064_1‖
2. Briefly stating the facts giving rise to the filing of the present petition
are as under:
3. The Petitioner is a company incorporated under the Companies Act,
1956, and has its registered office at Plot No. W-239, MIDC, Rabale, TTC
Industrial Area, Navi Mumbai, Thane- 400701. The Petitioner is an MSME
registered with the Ministry of Micro, Small and Medium Enterprises and is
engaged in the business of development and manufacturing of medical
devices under the brand name „Shalya‟. The Petitioner has a manufacturing
and R&D facility located at Navi Mumbai.
4. Respondent No.1 that is HLL INFRA TECH SERVICES Ltd.
(HITES) is a wholly owned subsidiary of HLL Lifecare Limited, is a Public
Sector Undertaking under the Ministry of Health and Family Welfare,
Government of India.
5. Respondent No. 2 is the Union of India and Respondent No. 3 is a
subsidiary company of Karl Storz Endoskope, a company incorporated
under the laws of Germany.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
6. The Respondent No. 1 issued a Domestic Tender Inquiry Document
on 12th March, 2021 bearing tender ID 2021_HLL_73064_1 on behalf of
Respondent No. 2 for supply, installation and commissioning of the OT
Integration (Integration and Data Management Systems for Modular OT) for
the new AIIMS/ Medical College/ Institutions to be established under
Pradhan Mantri Swasthya Suraksha Yojana Phase IV-V. Under Section -
VII, titled "Technical Specifications", the tender laid out various technical
specifications of OT Integration. Serial No. 2 of the above Section set out
the specifications for Medical Grade Monitors (MGM), as under:
2. Medical Grade Monitors-
a) Medical Grade Monitors- a) One 26-inch or more Full High Definition
(1920X1080p) medical grade monitor with ceiling suspended spring arm for each
Integrated MOT.
b) One 42-inch or more 4K (minimum resolution of 3840X2160) medical grade
color monitor should be flush mounted on OT wall with all necessary frames with
glass should be provided by bidder for each integrated MOT. Medical Grade
monitor should be of make:
Eizo/Barco/Sony/LG/NDS/ Advantech
(commercial grade monitors will not be accepted)
c) All medical grade monitors offered should be BIS/European CE/US FDA
certified.
d) Bidder shall be responsible for Patch panel for power & signals to be laid down for
Monitors at Wall/ Pendent/ booms/ OT Light 3rd arm as required.
(emphasis supplied)
7. On 24.03.2021, Respondent No. 1 issued the 1st amendment to the
said tender and a number of changes were made. However, the change
relevant and germane to the issue in controversy was the one made in
respect of MGM at Sr. No. 2. Post the amendment, Sr No. 2 read as under:
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
Sl Integration and Data Management System for
No. Modular OT
1 .....
2 Medical Grade Monitors -
a) Medical Grade Monitors -i) One 26-inch or more
Full High Definition (1920X1080p) medical grade
monitor with ceiling suspended spring arm for each
Integrated MOT. Both monitor and arm should
have capability to rotate atleast 270 deg. The
spring arm· should be from the same manufacturer
of integration (Price to be, quoted separately).
b) Medical Grade Monitors -ii) One 26-inch or more
4K (minimum resolution of 3840 x 2160) medical
grade monitor with ceiling suspended spring arm
for each Integrated MOT. Both monitor and arm
should have capability to rotate atleast 270 deg.
The spring arm should be from the same
manufacturer of integration (Price to be quoted
separately).
c) One 42-inch or more 4K (minimum resolution of
3840 x 2160) medical grade color monitor should
be flush mounted on OT wall with all necessary
frames with glass should be provided by bidder for
each integrated MOT. Medical Grade monitor
should be of make: Eizo/Barco/Sony/LG
(commercial grade monitors will not be accepted)
d) All medical grade monitors offered should be
BIS/European CE /US FDA certified
e) Bidder shall be responsible for Patch panel for
power & signals to be laid down for Monitors at
Wall/ Pendent/ booms/ OT Light 3rd arm as
required
3 ......
(emphasis supplied)
8. On 20.04.2021, Respondent No. 1 issued another (3rd) amendment to
the tender. Post these amendments, technical specifications of MGM read as
under:
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
―HLL Infra Tech Services Ltd.
20-04-2021
Amendment no. 3
Sub: Clarification to the referred tender enquiry
Ref.: Tender Enquiry Document No.: HITES/PCD/AIIMS-IV/16RT-01/OTIN/20-21 dated 12-
03-2021 read with Amendment no 1 & 2 dated 24.03.2021 & 16.04.2021 respectively.
The following changes are being incorporated in the above referred Tender Enquiry Document.
SECTION VII
Technical Specifications
TECHNICAL AMENDMENT
Tender ref: HITES/PCD/AIIMS-IV/16RT-01/OTIN/20-21 Dated: 12.03.2021
Integration and Data Management System for Modular OT
Para & Pg. Tender Specification Amended as
No.
Amend-01, ..... ....
pg
03,
para
1.b
Amend-01, 2-Medical Grade Monitors- 2-Medical Grade Monitors-
pg 04, para
2.a, 2.b,2.c 2.a Medical Grade Monitors-i) One 26- a. Medical Grade Monitor: 42-inch or
inch or more Full High Definition(1920 x more, of 4K (minimum resolution of 3840
1080p) medical grade monitor with x 2160) resolution, to be flush mounted on
ceiling suspended spring arm for each OT wall-01 no. per integrated MOT
integrated MOT. Both monitor and arm
should have capability to rotate atleast
270 deg. The spring arm should be from
the same manufacture of integration b. Medical Grade Monitor- 26-inch or
(Price to be quoted separately). more 4K (minimum resolution of 3840 x
2160) medical grade monitor with ceiling
suspended spring arm. Both monitor and
arm should have capability to rotate
2.b Medical Grade Monitors-ii) One 26- atleast 270 deg. (Price to be quoted
inch or more 4K(minimum resolution of
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
3840 x 2160) medical grade monitor with separately)-01 no. per integrated MOT
ceiling suspended spring arm for each
Integrated MOT. Both monitor and arm
should have capability to rotate atleast
270 deg. The spring arm should be from c. Optional item- Medical Grade
the same manufacturer of integration Monitors-26-inch or more Full High
(Price to be quoted separately). Definition (1920 x 1080p) medical grade
monitor with ceiling suspended spring
arm. Both monitor and arm should have
capability to rotate atleast 270 deg. (Price
2.c One 42-inch or more 4K(minimum to be quoted separately)-01 no. per
resolution of 3840 x 2160) medical grade integrated MOT.
color monitor should be flush mounted on
OT wall with all necessary frames with
glass should be provided by bidder for
each integrated MOT. Medical Grade Medical Grade monitor should be of
monitor should be of make: following
Eizo/Barco/Sony/LG (commercial grade make:Eizo/Barco/Sony/LG(commercial
monitors will not be accepted) grade monitors will not be accepted)
Amend- ..... .....
01,pg
04,para
3.a
(emphasis supplied)
9. Pursuant to amendment No. 3, Respondent No. 1 also issued a
standard format of Bill of Quantities ("BOQ") to be filled in by the
bidders as part of tender bidding process. The petitioner, by way of
abundant caution, addressed the letter dated 21.04.2021 seeking
clarification from Respondent No. 1 as to whether the requirement of the
specific make of monitor mentioned at Sr. No. 2(c) of Section VII is
applicable to other monitors mentioned at Sr. No. 2(a) and 2(b) as well.
The letter was forwarded vide e-mail dated 22.04.2021. However, no
response was received to the said letter. The Petitioner proceeded to
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
submit its bid on 18.05.2021 by filing the BOQ issued by Respondent
No. 1.
10. On 29.05.2021, Respondent No. 1 sought certain clarifications,
and the Petitioner states that it was surprised to note that clarifications
were sought with regard to MGM at Sr. No. 2(a) and 2(b). The
Petitioner, immediately, on 02.06.2021 replied to the e-mail of
29.05.2021 highlighting „as per the tender requirement, there was no
requirement of specific make for serial Nos. 2(a) and 2(b) and offer of
medical grade monitors of the make Advantech were in compliance of
tender conditions.‟ No response was received to the letter of 02.06.2021
and, on 17.06.2021, the Petitioner received an e-mail from the
Respondent that the bid of the Petitioner has been rejected during
technical evaluation on the grounds that the medical grade monitors
offered to be supplied by the Petitioner at Sr. Nos. 2(a) and 2(b) were not
from the approved ‗make‟.
11. Immediately, the Petitioner addressed the letter on 18.06.2021 to
the Respondent No. 1. The petitioner claimed that the rejection of its bid,
and acceptance of the bid of Respondent No. 3, was biased and
motivated. The Petitioner on 23.06.2021 addressed another letter
pointing out discrepancies in Respondent No. 3‟s (successful bidder)
BOQ.
12. On 30.06.2021, Respondent No. 1 replied to the Petitioner‟s letter
providing justification regarding the discrepancies pointed out in
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
Respondent No. 3‟s BOQ, and informed the Petitioner that Respondent
No. 3 had complied with the criteria set out in the bid.
13. The Petitioner states that it came to know on 09.07.2021, that the
financial bid of Respondent No. 3 had been opened, and accepted by
Respondent No. 1 on 30.06.2021 itself. Hence the present petition has
been filed.
14. The case of the petitioner is that a combined reading of
Amendment No. 3 with the BOQ shows that the requirement of specific
make/ brand w.r.t. MGM i.e., either of Eizo/Barco/Sony/LG, was only in
respect of the optional item 2(c), (for 26 inch or more Full High
Definition (1920X1080p) MGM), and no such specific make/ brand was
stipulated in respect of item 2(a) (i.e. 42 inch 4K MGM), or item 2(b)
(i.e. 26 inch or more 4 K minimum resolution of 3840X2160 MGM).
The petitioner further submits that the mandatory requirement regarding
certification of the MGM was mentioned at serial No. 2(d) (which was
not touched by the Amendment No. 3), which stipulated that „All
medical grade monitors offered should be BIS/European CE/US FDA
Certified.‟
15. The Petitioner further submits that it offered to supply MGM of
make „Advantech‟ in respect of items 2(a) and 2(b). The Petitioner
submits that these MGMs were duly certified in terms of serial No. 2(d)
of the Technical Specifications, as they both were BIS/European CE/US
FDA Certified.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
16. The petitioner further submits that it was discriminated against
vis-à-vis respondent No.3 inasmuch, as, the MGM offered by
Respondent No. 3 in respect of item at Sr. No. 2(a) was of „Karl Storz‟
make, which is also not mentioned in the approved list under Item at
Serial No. 2(c). Yet respondent No.3 was qualified, whereas the
petitioner was disqualified.
17. Respondent No.1 has filed a detailed counter-affidavit and has
claimed that the Petitioner has approached the Court with unclean hands.
18. The Respondent submits that in the pre-bid meeting, the Petitioner
demanded there should be no brands/ makes named, or NDF and
Advantech should be added back, which was declined. The pre-bid
meeting was held on 26.03.2021 with the independent Technical Expert
Committee (hereinafter "TEC") comprising of :
(i) Dr. R.B. Kalia, Addl. Professor, Dept. of Orthopedics,
AIIMS Rishikesh,
(ii) Dr. Bhupendra Mehra, Addl. Professor, Dept. of Surgery
AIIMS Nagpur,
(iii) Dr. Nikhil Kothari, Addl. Professor Dept. of Anesthesiology
& Critical Care, AIIMS Jodhpur,
(iv) Dr. Anshu Gupta, Associate Professor, Dept. of Anesthesia
LHMC, New Delhi.
19. In the pre-bid meeting, the TEC was of the view that there should
be specific makes of MGM for every item under SI. No. 2, and
recommended that, instead of stipulating the makes/ brands for each of
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
items 2(a) to 2(c) individually, the same should be brought under one
Column. Consequently, after mentioning the different sizes of monitors
under items 2 (a) to 2 (c), it was stipulated that ―Medical Grade Monitor
should be of following make: EIZO/Barco/Sony/LG (commercial grade
monitors will not be accepted)‖. Thus, recommendation of TEC - made
in the presence of petitioner, made it clear that Medical Grade Monitors
should only be of makes: EIZO/Barco/Sony/LG. Since the items 2 (a) to
2 (c) talked about medical grade monitors only, as such, the stipulation
of brands applied for all the sizes.
20. It was pursuant to the meeting of TEC that Amendment No. 3
dated 20.04.2021 was incorporated, and the issues raised in the letter of
21.04.2021 by the Petitioner was already discussed and clarified in the
pre-bid meeting held on 26.03.2021. Thus, the respondent was not
obliged to respond to the clarification sought by the petitioner on
21.04.2021.
21. The respondent No.1 further submits that the make/brand
"Advantech" is not BIS-Certified, and could not have been imported by
the Petitioner. The Respondent no. 1 further submits that the Department
of Electronics and Information Technology - under the Ministry of
Communications and Information Technology, has issued with the
"Electronics and Information Technology Goods (Requirements for
Compulsory Registration) Order, 2012", by which it was mandated that
no person shall import, sell or distribute goods which do not conform to
the specified BIS standard.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
22. The respondent No. 1 further submits that there is neither any
discrimination against the petitioner, nor unequal treatment has been
meted out to the petitioner. The technical bid of the Petitioner was
rightly rejected, and that of the Respondent No. 3 rightly accepted, as the
Petitioner did not offer MGM for items 2(a) and 2(b) from one of the
specified makes/ brands: EIZO/Barco/Sony/LG.
23. The respondent No. 1 further submits that requirement of specific
make/ brand MGM was there in the original tender, as well as in
Amendment No. 1 - with slight modification in respect of 42-inch
MGM, which requirement was extended to other categories of 26 inch
MGM as well, vide Amendment No. 3. Further, this is the third tender,
and earlier as well the respondent No. 1 had issued a Domestic Tender
Inquiry Document dated 07.03.2019 bearing tender ID
HITES/PCD/AIIMSIV/16/0TIN/18-19, with specifications that Medical
Grade Monitors should be of make/ brand: Eizo/Barco/Sony/LG. The
petitioner - in its Compliance Statement pertaining to said tender, had
submitted that for Integration and Data Management System for Modular
OT, it will be submitting the make/ brand „Barco‟ for monitors. Thus, the
petitioner did not have any confusion, when the tender was floated with
similar wordings and specifications, pertaining to the Medical Grade
Monitors. Even the amendments in relations to the previous tender came
on similar lines, as of the current tender in dispute.
24. The Respondent No. 1 relies on Municipal Corporation, Ujjain
Vs. BVG India ltd. [2018 (5) SCC 462], wherein the Supreme Court
observed:
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
"35. Evaluating tenders and awarding contracts are essentially commercial
transactions/contracts. If the decision relating to award of contract is in
public interest, the Courts will not, in exercise of the power of judicial
review, interfere even if a procedural aberration or error in awarding the
contract is made out. The power of judicial review will not be permitted to be
invoked to protect private interest by ignoring public interest. Attempts by
unsuccessful bidders with an artificial grievance and to get the purpose
defeated by approaching the Court on some technical and procedural lapses,
should be handled by Courts with firmness." (emphasis supplied)
25. Respondent No.1 further submits that the Petitioner by filing the
writ petition, is seeking judicial scrutiny of the decision of TEC, which
Constitutional Court should refrain from undertaking. Numerous
judgments have been cited by the Respondent No.1 in this regard, which
have held that courts should only be concerned "with lawfulness of a
decision, and not its soundness." [Bharat Coking Coal Ltd. vs. AMR Dev
Prabha, 2020 SC OnLine SC 335]. Additionally, reliance is placed on
Municipal Corporation, Ujjain vs. BVG India Ltd. [2018 (5) SCC 462],
Shree Balaji Coal Linkers v. Bharat Sanchar Nigam Ltd. and Ors.,
[2004 (54) ALR 308] and Jagdish Mandal v. State of Orissa & Ors.
[2007 (14) SCC 517] to highlight judicial restraint in tender matters.
26. Lastly, Respondent No. 1 submits that the present writ petition is
barred by delay and laches, as the financial bid was opened on
30.06.2021, whereas, the present writ petition was filed on 15.07.2021.
The Respondent No. 1 has relied on State of M.P. v. Nandlal Jaiswal
and Ors. [(1986) 4 SCC 566] and The Mining Engineering
Corporation v. Union of India & Anr. [W.P. (C) 5612/2020] to submit
that when there is unexplained delay, along with creation of third-party
rights, then it is an important factor that has to be weighed by the High
Court before exercising its jurisdiction under Article 226.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
27. Respondent No. 3 has also filed an affidavit submitting that under
the terms of the tender (Clause 9.1 of the Instructions to bidders), the
tender conditions categorically stipulated that all clarifications or queries
had to be raised to the purchaser in a pre-defined manner, at least 2 days
prior to the pre-bid meeting. Respondent No 3 submits that the said term
had been included so that all queries/ suggestions are considered and
heard by the Respondent no. 1 and, accordingly, thereafter a decision is
taken thereon.
28. Respondent No. 3 further submits that, procedurally, the purchaser
usually issues amendments after having heard all the bidders, and
thereafter addresses the queries raised by the bidders. In the tenders
wherein respondent no 3 has participated in the past, it had been seen
that the purchasers issue a consolidated clarification/ amendment to
address all the queries raised till the pre-bid stage, and thereafter no
queries were entertained. Apparently, the same principles were applied
by the Respondent no 1 after issuing the Amendment No 3 dated
20.04.2021. It is argued that a bare perusal of the Amendment No.3
establishes that all the Medical Grade Monitors had to be of the
specifically mentioned make/ brand.
29. The allegation of the Petitioner against Respondent No 3 - that the
MGM offered by it for item at serial no 2(a) was of "Karl Storz" make,
and not of the specific make/ brand is denied. It is submitted that the
MGM offered by the Respondent No 3 for item 2(a) was of Model
TM440, where the OEM was „Eizo‟ - a make/ brand stipulated under the
Technical specifications duly amended. It is submitted that Respondent
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
No 3 had submitted the OEM certificate from „Eizo‟ in this respect, and
provided the BIS certificate of the same.
30. We have heard the Learned Counsels for the parties and
considered their submissions in the light of the documents placed on
record.
ANALYSIS:
31. The primary issue that arises for our consideration is as to what is
the plausible interpretation of Clause 2 of the Technical Specification of
the Tender Condition, and; whether the interpretation adopted by
respondent No.1 in respect of the said clause is a plausible interpretation.
Only if the answer to the second question is in the negative, would it
require our consideration as to what further course of action we should
resort to in the facts and circumstances of the case.
32. In brief, the Respondent No. 1 has made the following arguments
and contentions for holding the Petitioner Technically Non-responsive
and for disallowing the petition:
a. The Petitioner, having submitted the "Advantech" model that
was not one of the makes prescribed in tender conditions for
items 2(a) and 2(b), the petitioner was declared technically
non-responsive. There was no confusion in the tender condition
as sought to be argued by the Petitioner.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
b. The Petitioner was aware of the amendment, as the same was
discussed in the pre-bid meeting held on 26.03.2021 and,
therefore, there was no ambiguity.
c. As per the tender conditions, the tender authority is not
obligated to issue clarifications, post the pre-bid meeting.
d. The Advantech model offered by the Petitioner is not BIS
certified.
e. Lastly, the petition should not be allowed on account of delay
in filing, and creation of third-party rights.
33. The relevant extract from Amendment No. 3 issued by
Respondent No. 1 has been extracted hereinabove. Before we proceed to
analyze the same, for comprehensive understanding of the plausible
meaning of the amended Technical Specifications laid down for MGM -
post Amendment No.3, we must also look to the BOQ, which also forms
part of the same tender. Following is the relevant extract of the BOQ:
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
2. Medical Grade Monitors -
a) Medical Grade Monitor: 42-inch or more, of 4K
(minimum resolution of 3840 x 2160) resolution, to be
flush mounted on OT wall - 01 no. per integrated MOT.
b) Medical Grade Monitor : 26-inch or more 4K (minimum
resolution of 3840 x 2160) medical grade monitor with
ceiling suspended spring arm. Both monitor and arm
should have capability to rotate atleast 270 deg. (Price to
be quoted separately) - 01 no. per integrated MOT
c) Optional item - Medical Grade Monitors - 26-inch or
more Full High Definition (1920 x 1080p) medical grade
monitor with ceiling suspended spring arm. Both
monitor and arm should have capability to rotate atleast
270 deg. (Price to be quoted separately) - 01 no. per
integrated MOT.
Medical grade monitor should be of following make:
Eizo/Barco/Sony/LG (commercial grade monitors will
not be accepted)
d) All medical grade monitors offered should be BIS/
European CE/ US FDA certified
e) Bidder shall be responsible for Patch panel for power &
signals to be laid down for Monitors at Wall/ Pendent/
booms/ OT Light 3rd arm as required.
(emphasis supplied)
34. A perusal of the original and amended technical specifications for
Medical Grade Monitors firstly throws up an important aspect, which is that
the technical specification in respect of item 2 Medical Grade Monitors in
the original tender; after the first amendment and; even after the third
amendment continued to display the clear intent of respondent No.1 to
stipulate specific makes/ brand only in respect of one specified item. Earlier
- in the original tender, and after the first amendment, it was the item 42
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
Inch or more 4K Medical Grade Monitor, and after amendment No.3, the
specific makes/ brand were stipulated in respect of optional Item 2(c).
35. Sub-Clauses (a) and (b) of Clause "2 - Medical Grade Monitors -",
both use the expression "Medical Grade Monitor". However, Sub-Clause
(c) of Clause 2 uses the expression "Medical Grade Monitors". What
follows Sub-Clause (c) of Clause 2 " Optional Item" is "Medical Grade
monitor should be of following make:Eizo/Barco/Sony/LG(commercial
grade monitors will not be accepted)". The respondent No.1, therefore,
consciously used singular "Monitor" and plural "Monitors" at different
places in Clause 2. Had the intention of respondent No.1 been to stipulate
that all Medical Grade Monitors should be of the named make/ brand, the
expression used by the respondent would have been "Medical Grade
Monitors should be of the following make...........". Pertinently, the
requirement of Medical Grade Monitor being of the specified make/ brand
was not put separately as a part of Clause 2 (d), or in any other manner so as
to indicate that the stipulation of the Medical Grade Monitors being of the
stipulate make/ brand did not form part of Sub-Clause (c) of Clause 2 alone,
and that it was a standalone Sub-Clause of Clause 2 - applicable to Clauses
2(a) to 2(c), just like Clause 2(d). The respondent did not use the expression
"Medical Grade Monitors", to indicate plurality, and also did not state
"Above Medical Grade Monitors should be of following make......."
36. The use of the word "Monitor" while stipulating the specific makes/
brands conveyed singularity and not plurality. Consequently, there is no
basis for respondent No. 1 to claim that the clause relating to stipulation of
makes/ brands would apply to Items 2(a) and 2(b) as well.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
37. The submission of the petitioner that the stipulation with regard to
makes was only in respect of Item 2(c) i.e. the optional item, also gains
credence from the fact that even in the BOQ, the stipulation with regard to
the make/ brand was only contained in Clause 2(c). We have extracted
hereinabove, the BOQ issued by the respondent No.1, in which the bidders
were required to submit their quotation. The said BOQ contains clearly
marked out rows and columns. A bare perusal of the same would show that
the stipulation of makes/ brands is only in respect of Item 2(c) i.e. the
optional item. Nothing prevented respondent No.1 from incorporating the
clause relating to approved makes/ brands in Clause 2(d) of the BOQ, which
stipulated - explicitly, that "All medical grade monitors offered should be
BIS/European CE/US FDA certified". Pertinently, when the respondent
No.1 intended to stipulate a common condition for all the items, namely
Item 2(a), 2(b) and 2(c), it very clearly stated in the technical specifications,
as well as in the BOQ - at Clause 2(d), that ―All medical grade monitors
offered should be BIS/European CE/US FDA certified". In the same clause,
namely Clause 2(d), or by incorporating a similar separate clause, the
respondent authority could have stipulated ―All Medical Grade Monitors
should of the following make: Eizo/Barco/Sony/LG (commercial grade
monitors will not be accepted)‖. However, that was not done, leaving the
field open for the prospective bidders to genuinely and reasonably conclude
that the stipulation of the makes was only in respect of item 2(c) - the
optional item, and did not attach to the items at 2(a) and 2(b). In our view,
the interpretation of the Amended clause 2 in the Technical Specifications -
as amended by Amendment No.3, advanced by the petitioner, is the only
plausible view, and the interpretation sought to be advanced by respondent
Signature Not Verified
Digitally Signed
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ROHELLA
Signing Date:06.10.2021
16:28:40
No.1 is clearly not borne out from a plain reading of the said clause, in
conjunction with the BOQ.
38. For the aforesaid reasons, we hold that the specified make criteria did
not attach to Items at Serial No. 2(a) and 2(b) of the Technical
Specifications.
39. The stand taken by respondent No.1 in their counter affidavit is that
the TEC held the pre-bid meeting with the prospective bidders, where after
amendment No. 3 - with which we are concerned was issued and, therefore,
the respondent was not obliged to clarify the position to the petitioner as to
whether, or not, the prescription of making of Medical Grade Monitor would
apply to the items at Serial Nos. 2(a) and 2(b).
40. The pre-bid meeting took place on 26.03.2021. The minutes of this
meeting are dated 06.04.2021. Subsequently, 2 amendments were carried out.
Amendment No. 2 was issued on 16.04.2021, and Amendment No. 3 was
issued on 20.04.2021. The second Amendment dated 16.04.2021 has not been
referred to by either of the parties and it has also not been placed on record.
We, therefore, assume that it did not relate to MGM. We have perused the
minutes of the meeting dated 06.04.2021, of the pre-bid meeting dated
26.03.2021, and even from the minutes, it cannot be inferred that the specified
make requirement was made applicable to all items, including those at serial
No. 2(a) and 2(b). The relevant extract from the minutes of the pre-bid
meeting held on 26.03.2021 are extracted hereinbelow:
"
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
Prebid-Representation disposal s note (Prebid dated 26.03.2021
Tender ref: HITES /PCD/AIIMS-IV /16RT-01/0TIN/20-21 Dated 12.03.2021
Integration and Data Management System for Modular OT (TenderId: 2021_HLL_73064_1
SI. Tender Specification Bidder Representation received from Committee Justification
the bidders Recommendations
No.
...... ......... ....... ....... ...... .......
Amend 2. Medical Grade M/s Karl Request for deletion: 2. Medical Grade For better
01, pg Monitors: Medical ―Spring arm should be Monitors-
04 Grade Monitors - i) Storz from the same manufacture clarity
Para One 26-inch or more of integration" a. Medical Grade
full High Definition Monitor: 42 inch
(1920 x1080) more or
medical grade
4 k (minimum
monitor with ceiling
resolution of
Suspended spring
3840x2160 )
arm for each
resolution, to be
Integrated MOT. Justification: Spring arm
flush mounted on
Both the monitor and and manufacture of
the arm should have integration are different
capability to rotate
2.a at least 270 deg. The M/s Pointy 2.a, you have asked
spring am should be for 26° full HD monitor,
Rohit whereas system you're
from the same
manufacturer of asking for should before
Surgicals
Integration (price to keep at 4K at 3.c and 4.c
be quoted
We would request that it
separately)
should be 4K, as asked at
OT Wall- 01 no.
2.b also, as full HD for 4K
per integrated
system does not make any
MOT.
sense.
M/s Amendment required: 132
Stryker inch or more 4K medical
grade monitor mounted on
ceiling suspended spring
arm for each integrated
MOT
M/s DSS kindly remove spring arm b. Medical Grade
should be from the same Monitor - 26 inch
Stroz manufacturer of or more 4k
integration. Kindly allow (minimum
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
third-party make or remove resolution of
this point. 3840x2160)
medical grade
Amend Medical grade M/s Karl kindly amend this as: 126 monitor with
-01, monitors-ii) One 26- inch or more full hi ceiling suspended
inch Storz definition (1920 x 1080p) spring arm. Both
pg medical grade monitor monitor and arm
or more 4K mounted with ceiling
04, should have
(minimum resolution suspended spring arm for
para capability to
3840'x each integrated MOT. Both rotate 270 deg.
2.b monitor and arm should (Price to be
2160) Medical grade
have capability to rotate at quoted
monitor with ceiling
least 270·. separately) - 01 n
suspended spring o. per integrated
Justification:
arm for each MOT.
A) 4K monitor shall be a
integrated MOT.
part of purchase of a 4K
Both monitor and
camera system. c. optional item-
arm should have
capability to rotate B) the 4K camera system is
at least mainly endovision,
endoscopy camera. Medical Grade
270 deg. The spring
Monitors - 26
arm should be from e) not all the OTs shall be inch or more full
the same used for Minimal Invasive High Definition
manufacturer of Surgery. (1920xl080p)medi
integration
cal grade monitor
Request for deletion:
(price to be quoted with ceiling
"spring ram should be from
separately) suspended spring
the same manufacturer of
arm. Both monitor
integration."
and arm should
Justification: spring arm have capability to
and manufacturers Of rotate at least 270
integration are different. deg.
(Price to be
quoted
separately) - 01
no. per integrated
MOT
Medical Grade
Monitor should be
of following
make:
Eizo/Barco/Sony/
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
LG
commercial grade
monitors will not
be accepted.
M/s Please clarify what are
Criteria/documentation
Xcellance required for proving that
spring arm is from same
(Shalya)
manufacturer as of
integration.
or
Better still, we suggest
changing it to spring arm
from any vendor, with
quality criteria added for a
better quality and price
equality among various
vendors.
Reason: most venders are
having OEM supplies of
spring home, and that way
equality in quality cannot
be ascertained.
M/s DSS Kindly remove spring arm
should be from the same
Image manufacturer of
integration. Kindly allow
tech
third-party make or remove
this point.
Amend One 42-inch or more M/s Karl Kindly amend this as: 142
01, pg 4K (minimum Storz inch or more FHD
resolution of 3840 x (minimum resolution of
04, 2160) medical grade 1920 x 1080) medical
para colour monitor grade color monitor should
should be flash be flash mounted on OT
mounted on OT wall wall. Necessary frames
2.c with all necessary with glass to be under the
frames with glass scope of MOT vendor.
should be provided Medical grade monitors
by bidder for each should be of make:
integrated MOT. Eizo/Barco/Sony/LG/NDS/
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
Medical grade Advantech (commercial
monitor should be of grade monitors would not
make: be accepted.)
Eizo/Barco/Sony/LG
(CommerciaI grade Justification: 42 inch
monitors will not be monitor on the wall shall
accepted) not be used for viewing
procedure in 3D/4K,
necessary monitor shall be
procured along with the
camera system and shall be
used near the surgical
field. 42" wall monitor
shall be used for
Telemedicine.
M/s There should not be any
Xcellance brand name specified for
(Shalya) monitors, rather there
should be Technical
specifications and Quality
Certification requirement
to ascertain the quality of
monitors
OR
All other brands mentioned
in previous specifications
which has been deleted
now, should be added back
in the list, i.e. NDS &
Advantech
M/s Amendment required.
Stryker
One 55 inch 4K medical
grade (commercial grade
monitors will not be
accepted) color monitor
should be flush mounted on
OT wall with all necessary
frames with glass should
be provided by bidder for
each integrated MOT. The
monitor should have the
feature of picture in picture
viewing multiple inputs in
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
a single screen. The
monitor should be flush
mounted on the wall with
necessary frames with
glass top for better sealing.
Justification:
42" wall monitor is not
sufficient as the same will
be mounted on wall panel
also using 42"will not
make much difference
when compared with
ceiling, suspended monitor.
So, we recommend 55"
inch FHD (1920 x1080p)
medical grade (commercial
grade monitors will not be
accepted) color monitor
should be flush mounted on
OT wall with all necessary
frames with glass should
be provided by bidder for
each integrated MOT.
M/s 42" monitor as asked at
point 2.c, it should be 55"
Rohit or more as no company has
42" 4K monitor
Surgicals
At 2.c we would request
you to ass brand name
"NDS", as NDS is the
leading monitor brand In
the world
.... ...... ... ....... ....... ......
"
41. Clause 9.1 of the Tender Conditions stipulates:
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
―9.1 A tenderer requiring any clarification or elucidation on
any issue of the TE documents may take up the same with the
purchaser in writing in their letter head duly signed and
scanned through email to [email protected] and
[email protected] The purchaser will respond to such
request provided the same is received by the purchaser two
days prior to the pre-bid meeting. Any queries/ representations
received later shall not be taken into cognizance.‖
42. In our view, this stipulation would not debar the tenderer to seek
clarification about the amended terms and conditions. Every time an
amendment of the Technical Specifications of a tender are issued, the
prospective and interested bidders would be entitled to seek clarifications, so
as to not fall foul of the amended Technical Specifications. The clarification
sought by the petitioner on 21.04.2021 was, firstly, prompt and, secondly,
pertinent. This clarification was sought since respondent No.1 had
drastically changed the Technical Specifications in respect of Medical Grade
Monitors from those stipulated in the tender as initially issued and, also from
the amendment made vide amendment No.1. The stipulation of specified
makes in the tender as originally issued specifically related to Clause 2(b) -
which was for 42-inch or more 4K(minimum resolution of 3840 x 2160)
medical grade colour monitor. Pertinently, the original technical
specifications also provided in Clause (c) that "All medical grade monitors
offered should be BIS/European CE/US FDA certified.‖ After the first
amendment, the item at 2(a), as initially mentioned in the original NIT was
split up and re-numbered as 2(a) and 2(b). Both these items were in respect
of "26 Inch or more" Medical Grade Monitors. Whereas Clause 2(a)
stipulated the technical specification as "Full High Definition (1920 X
1080p) Medical Grade Monitor‖, item 2(b) was in respect of ―26-inch or
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
more 4K (minimum resolution of 3840 x 2160) Medical Grade Monitor‖.
Item relating to ―42 inch or more 4K (minimum resolution of 3840 x 2160)
Medical Grade Monitor‖ was re-numbered as item 2(c) and, it was only in
respect of item 2(c) that the makes were clearly stipulated. Specifications in
Clause 2(c) of original NIT was re-numbered as 2(d). With the issuance of
the 3rd Amendment, clauses 2(a), 2(b) and 2(c) were amended. Pertinently,
on this occasion, the stipulation with regard to the approved make/ brand
was not attached to the item ―42 inch or more 4K (minimum resolution of
3840 x 2160)‖ [now numbered as item 2(a)]. The said stipulation of makes
was attached to Clause 2(c) - which was the "Optional Item". Pertinently,
clause 2(d) continued to remain unaffected, which stipulated that ―All
medical grade monitors offered should be BIS/European CE/US FDA
certified.‖. It was, therefore, completely reasonable and justified on the part
of the petitioner to seek a clarification as to whether the stipulation of makes
was attached to items 2(a) and 2(b), as amended vide Amendment No.3.
43. The respondent No.1, which is the Tender Inviting Authority cannot
play games with the bidders as such an Authority has to act fairly, and it
should be responsive to fair and reasonable queries that may be raised by
prospective and serious bidders. The endeavour of respondent No.1 cannot
be to trick any bidder by laying down unclear or vague specifications/
conditions and, after the bids are invited, claiming that the intention of the
respondent No. 1 was to accept one - and not other, interpretation of the
tender conditions/ technical specifications. The Tender Inviting Authority
was obliged to, in the first place, lay down clear specifications/ conditions -
which are clear as daylight to everyone. However, if any prospective bidder
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ROHELLA
Signing Date:06.10.2021
16:28:40
points out any ambiguity or, bona fide, seeks a clarification, respondent
No.1 cannot be stiff necked while dealing with such a query and refuse to
answer the same, only with a view to non-suit a prospective bidder
subsequently.
44. In tender matters, the tender inviting authority should not have a
myopic view. Its objective should be to encourage maximum participation in
a fair manner and not to stump the bidders with unclear/ambiguous terms. If
the tender issuing authority is stumping the bidder by confusing them, or not
resolving their doubts, then the act of the tendering authority would be
antithesis to the very idea of a tender, which is to encourage maximum public
participation, and not to oust a bidder by devious means. We are aware that
the tendering authority is considered the best authority to interpret the tender
document. But when the plain and express meaning of the words used in the
tender specifications and conditions is clear, then there is no room for
interpretation by going into the mind of the author of the tender - to find out
what its intention was.
45. Therefore, having issued amendments post pre-bid meeting held on
26.03.2021, the Respondent No. 1 was obligated to resolve any ambiguity or
confusion that may have arisen. The ipsi dixit of respondent No.1 that all
bidders were informed in the pre-bid meeting by the TEC that all Medical
Grade Monitors should be of the specified makes only, cannot be accepted.
46. Therefore, onus was on Respondent No. 1 to resolve the ambiguity due
to subsequent amendments (if there was any), and since the tendering
Signature Not Verified
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ROHELLA
Signing Date:06.10.2021
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authority/ Respondent No. 1 hasn‟t done that - despite specific query, then it
shall bear the consequences of the same.
47. We find support for our opinion from the Supreme Court judgment in
Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd.1,
wherein the Court has stated the following:
"36. We find merit in this civil appeal. Standards applied by courts in
judicial review must be justified by constitutional principles which govern the
proper exercise of public power in a democracy. Article 14 of the Constitution
embodies the principle of ―non-discrimination‖. However, it is not a free-
standing provision. It has to be read in conjunction with rights conferred by
other articles like Article 21 of the Constitution. The said Article 21 refers to
―right to life‖. It includes ―opportunity‖. In our view, as held in the latest
judgment of the Constitution Bench of nine Judges in I.R. Coelho v. State of
T.N. [(2007) 2 SCC 1] , Articles 21/14 are the heart of the chapter on
fundamental rights. They cover various aspects of life. ―Level playing field‖ is
an important concept while construing Article 19(1)(g) of the Constitution. It
is this doctrine which is invoked by REL/HDEC in the present case. When
Article 19(1)(g) confers fundamental right to carry on business to a company,
it is entitled to invoke the said doctrine of ―level playing field‖. We may
clarify that this doctrine is, however, subject to public interest. In the world of
globalisation, competition is an important factor to be kept in mind. The
doctrine of "level playing field" is an important doctrine which is embodied
in Article 19(1)(g) of the Constitution. This is because the said doctrine
provides space within which equally placed competitors are allowed to bid so
as to subserve the larger public interest. ―Globalisation‖, in essence, is
liberalisation of trade. Today India has dismantled licence raj. The economic
reforms introduced after 1992 have brought in the concept of ―globalisation‖.
Decisions or acts which result in unequal and discriminatory treatment,
would violate the doctrine of "level playing field" embodied in Article
19(1)(g). Time has come, therefore, to say that Article 14 which refers to the
principle of "equality" should not be read as a stand alone item but it
should be read in conjunction with Article 21 which embodies several
aspects of life. There is one more aspect which needs to be mentioned in the
matter of implementation of the aforestated doctrine of ―level playing field‖.
According to Lord Goldsmith, commitment to the ―rule of law‖ is the heart of
parliamentary democracy. One of the important elements of the ―rule of law‖
is legal certainty. Article 14 applies to government policies and if the policy
(2007) 8 SCC 1.
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ROHELLA
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or act of the Government, even in contractual matters, fails to satisfy the test
of ―reasonableness‖, then such an act or decision would be unconstitutional.
38. When tenders are invited, the terms and conditions must indicate
with legal certainty, norms and benchmarks. This "legal certainty" is an
important aspect of the rule of law. If there is vagueness or subjectivity in
the said norms it may result in unequal and discriminatory treatment. It
may violate doctrine of "level playing field".
39. In Reliance Airport Developers (P) Ltd. v. Airports Authority of
India [(2006) 10 SCC 1] the Division Bench of this Court has held that in
matters of judicial review the basic test is to see whether there is any infirmity
in the decision-making process and not in the decision itself. This means that
the decision-maker must understand correctly the law that regulates his
decision-making power and he must give effect to it otherwise it may result in
illegality. The principle of ―judicial review‖ cannot be denied even in
contractual matters or matters in which the Government exercises its
contractual powers, but judicial review is intended to prevent arbitrariness
and it must be exercised in larger public interest. Expression of different
views and opinions in exercise of contractual powers may be there, however,
such difference of opinion must be based on specified norms. Those norms
may be legal norms or accounting norms. As long as the norms are clear and
properly understood by the decision-maker and the bidders and other
stakeholders, uncertainty and thereby breach of the rule of law will not arise.
The grounds upon which administrative action is subjected to control by
judicial review are classifiable broadly under three heads, namely, illegality,
irrationality and procedural impropriety. In the said judgment it has been
held that all errors of law are jurisdictional errors. One of the important
principles laid down in the aforesaid judgment is that whenever a
norm/benchmark is prescribed in the tender process in order to provide
certainty that norm/standard should be clear. As stated above ―certainty‖ is
an important aspect of the rule of law. In Reliance Airport Developers [(2006)
10 SCC 1] the scoring system formed part of the evaluation process. The
object of that system was to provide identification of factors, allocation of
marks of each of the said factors and giving of marks at different stages.
Objectivity was thus provided." (emphasis supplied)
48. Therefore, to ensure that there is "level playing field" for all the
bidders, it is imperative for the tendering authority to make sure that there is
certainty in the tender conditions, especially where there have been
amendments issued in the tender condition. Changing the rules of the game
post the clarification round, should allow the bidders to seek any clarification
Signature Not Verified
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ROHELLA
Signing Date:06.10.2021
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that they may have, at least in relation to the amendment. Right after the
issuance of the Amendment no. 3 on 20.04.2021, the Petitioner had written on
21.04.2021 to the tendering authority to clarify its doubts. The Respondent
no. 1 should have been forthcoming with clarifications since the pre-bid
meeting was over. We are at pains to understand the attitude of the tender
floating authorities. The laudable objectives of "ease of doing business in
India" was frustrated by this high-ended attitude of the respondent. If the aim
and objective of an open bidding process is to encourage bidding, and
maximize participation to get the optimum price, then the attitude of the
Respondent cannot be countenanced. The act of not clarifying the Petitioner‟s
doubt has prejudiced him and left him in the dark. This Act/ omission of
Respondent no. 1 cannot be to the disadvantage of the petitioner.
49. If it was the intention of respondent No.1 to apply the specified makes
criteria for items 2(a) and 2(b), the clauses of Amendment No.3 should have
been clearly framed, and not in a manner that is ambiguous and creates
confusion in the mind of any bidder. When there is ambiguity in a tender
condition, the doctrine of Contra Proferentem is attracted. In Industrial
Promotion & Investment Corpn. of Orissa Ltd. v. New India Assurance Co.
Ltd.2, it was observed-
"10. We proceed to deal with the submission made by the counsel for the
appellant regarding the rule of contra proferentem. The Common Law rule of
construction ―verba chartarum fortius accipiuntur contra proferentem‖
means that ambiguity in the wording of the policy is to be resolved against the
party who prepared it. MacGillivray on Insurance Law [ Legh-Jones,
Longmore et al (Eds.), MacGillivray on Insurance Law (9th Edn., Sweet and
Maxwell, London 1997) at p. 280.] deals with the rule of contra proferentem
as follows:
(2016) 15 SCC 315.
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ROHELLA
Signing Date:06.10.2021
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―The contra proferentem rule of construction arises only where there is a
wording employed by those drafting the clause which leaves the court unable
to decide by ordinary principles of interpretation which of two meanings is the
right one. ‗One must not use the rule to create the ambiguity -- one must find
the ambiguity first.' The words should receive their ordinary and natural
meaning unless that is displaced by a real ambiguity either appearing on the
face of the policy or, possibly, by extrinsic evidence of surrounding
circumstances.‖ (footnotes omitted)
11.Colinvaux's Law of Insurance [ Robert and Merkin (Eds.), Colinvaux's
Law of Insurance (6th Edn., 1990) at p. 42.] propounds the contra
proferentem rule as under:
―Quite apart from contradictory clauses in policies, ambiguities are common
in them and it is often very uncertain what the parties to them mean. In such
cases the rule is that the policy, being drafted in language chosen by the
insurers, must be taken most strongly against them. It is construed contra
proferentes, against those who offer it. In a doubtful case the turn of the scale
ought to be given against the speaker, because he has not clearly and fully
expressed himself. Nothing is easier than for the insurers to express
themselves in plain terms. The assured cannot put his own meaning upon a
policy, but, where it is ambiguous, it is to be construed in the sense in which
he might reasonably have understood it. If the insurers wish to escape liability
under given circumstances, they must use words admitting of no possible
doubt.
But a clause is only to be contra proferentes in cases of real ambiguity. One
must not use the rule to create an ambiguity. One must find the ambiguity
first. Even where a clause by itself is ambiguous if, by looking at the whole
policy, its meaning becomes clear, there is no room for the application of the
doctrine. So also where if one meaning is given to a clause, the rest of the
policy becomes clear, the policy should be construed accordingly.‖
(footnotes omitted)‖
50. The doctrine of contra proferentem states that the plain and express
meaning of the contract has to be given heed to and in case there is any
ambiguity in the contract, then the same is construed against the drafter of the
said contract.
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
51. It has also been stated in Kamala Sarmah v. State of Assam3 that "A
notice inviting tender must indicate the terms and conditions without any
ambiguity and in clear terms."
52. It is important to remember the objective of a tender. The same has also
been observed in NHAI v. Gwalior-Jhansi Expressway Ltd.4 wherein it was
stated:
"20. ....The objective of tender process is not only to adhere to a transparent
mechanism but to encourage competition and give equal opportunity to all
tenderers with the end result of getting a fair offer or value for money....."
53. We may now move on to consider other defences raised by the
respondents. The stand of Respondent no. 1 is that the Advantech model is
not BIS certified. We cannot agree with this contention. Sr. 2(d) clearly states
that, "All medical grade monitors offered should be BIS/ European CE/ US
FDA certified". The Petitioner has stated on record - and shown the relevant
documents, to show that Advantech is European CE certified. The presence of
the punctuation "/" shows that it means "or", and not "and", and if the
Respondent wanted the monitor to be BIS and European CE, and US FDA
certified, then the Respondents should have clearly used the word "and", and
not "/". Pertinently, when it comes to specified makes/ brands, the respondent
No.1 uses the same method to describe the several makes i.e.
"Eizo/Barco/Sony/LG". This, obviously, means one, or the other makes. The
punctuation "/" is used as an "or" and not an "and". Even otherwise, it does
not stand to reason that all the MGMs should be BIS, and European CE, and
USFDA certified. There may be manufacturers, who may choose not to go
2018 SCC OnLine Gau 2152.
(2018) 8 SCC 243.
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ROHELLA
Signing Date:06.10.2021
16:28:40
for clarification of the MGMs by all these certifying agencies. For example,
an Indian Manufacturer is not obliged to obtain USFDA certification to be
able to offer his product in India, and it would suffice if his product is BIS
certified. Similar would be the case for other manufacturers in India and
abroad. Thus, the above submission of the respondent No.1 has no merit and
is rejected.
54. We also find merit in the petitioner‟s submission that the petitioner
has been discriminated against vis-à-vis respondent No.3. Admittedly,
respondent No.3 had also not offered the Medical Grade Monitors of one of
the specified makes/ brand - assuming that the bidders were obliged to offer
only the specified makes for items at Sr. No. 2(a) and 2(b). Admittedly, the
make offered by respondent No.3 was "Karl Storz" - which is not one of the
specified makes of Medical Grade Monitors. The tender conditions do not
permit a bidder to offer a make, different from one of the specified makes
only, on the ground that the original equipment manufacturer of the offered
make is one of the specified makes. It is a common and well known trade
practice that manufacturers sell the same products with different brands, so
as to have access to different segments of the same market. The same
manufacturer offers a premium range under one brand, and a more
affordable range under a different brand/ name. If the manner in which the
respondent No.1 has proceeded to accept the tender of respondent No.3 were
to be permitted, it would become easy for any bidder to push the cheaper/
inferior brand from the same manufacturer, even though the premium make/
brand may have been specified as acceptable make/ brand. The manner in
which the respondent No. 1 has accepted the item offered by respondent
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ROHELLA
Signing Date:06.10.2021
16:28:40
No.3 at serial 2(a) of the make "Karl Storz", also discriminates against those
bidders who may have similarly been in a position to offer the item at serial
No. 2(a) of the make "Karl Storz", or other brands- whose OEM was one of
the specified makes/ brands, but did not participate in the tendering process,
since they were not in a position to offer the said item at serial No. 2(a) of
one of the specified make/ brands. Thus, respondent No.1 has disturbed the
level playing field and discriminated against all such prospective bidders
and favoured respondent No.3 by agreeing to accept the item at serial
No.2(a) of a make/ brand which is not specified make/ brand.
55. The Respondents have also alleged delay in filing the present petition.
It is the case of Petitioner that they resorted to making several
representations to the Respondent no. 1. An email was sent on 22.04.2021,
requesting clarification on Amendment no. 3. Then a letter was issued on
02.06.2021 replying to the mail of the Respondent no. 1, and again seeking
clarification with respect to items at Sr. 2(a), 2(b) and 2(c). Subsequently, a
letter was issued on 18.06.2021 pointing out the discrepancies in the bid of
Respondent no. 3, and again pointing out the ambiguity in Item at Sr. 2 of
the technical specification. The Petitioner received an email as response
from the Respondent on 30.06.2021, replying to the representation of the
Petitioner. In response, the Petitioner on 01.07.2021, sent another
communication raising its grievance. Considering that the respondent
responded on 30.06.2021, the filing of the present petition on or about
15.07.2021, cannot be said to be delayed. Pertinently, respondent No.1 has
not awarded the contract to respondent No.3 as it is not even so claimed by
the respondents in their replies/ counter affidavits. The supplies under the
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
tender have, obviously, not been made by respondent No.3 to respondent
No.1. Vide our order dated 16.07.2021, we had directed that "Till the next
date of hearing, no further steps shall be taken by the Respondents for
award of the tender in question to respondent No.3". That interim order has
continues to operate. Thus, there is no delay in filing of this petition.
56. The Supreme Court in Vetindia Pharmaceuticals Ltd. v. State of U.P.5,
observed the following:
"15. That brings us to the question of delay. There is no doubt that the
High Court in its discretionary jurisdiction may decline to exercise the
discretionary writ jurisdiction on the ground of delay in approaching the
court. But it is only a rule of discretion by exercise of self-restraint evolved
by the court in exercise of the discretionary equitable jurisdiction and not a
mandatory requirement that every delayed petition must be dismissed on the
ground of delay. The Limitation Act stricto sensu does not apply to the writ
jurisdiction. The discretion vested in the court under Article 226 of the
Constitution therefore has to be a judicious exercise of the discretion after
considering all pros and cons of the matter, including the nature of the
dispute, the explanation for the delay, whether any third-party rights have
intervened, etc. The jurisdiction under Article 226 being equitable in nature,
questions of proportionality in considering whether the impugned order
merits interference or not in exercise of the discretionary jurisdiction will
also arise. This Court in Basanti Prasadv. Bihar School Examination
Board [Basanti Prasad v. Bihar School Examination Board, (2009) 6 SCC
791 : (2009) 2 SCC (L&S) 252] , after referring to Moon Mills Ltd. v. M.R.
Meher [Moon Mills Ltd. v. M.R. Meher, AIR 1967 SC 1450] , Maharashtra
SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant
Regular Motor Service, (1969) 1 SCR 808 : AIR 1969 SC 329] and State of
M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566]
, held that if the delay is properly explained and no third-party rights are
being affected, the writ court under Article 226 of the Constitution may
condone the delay, holding as follows: (Basanti Prasad case [Basanti
Prasad v. Bihar School Examination Board, (2009) 6 SCC 791 : (2009) 2
SCC (L&S) 252] , SCC p. 796, para 18)
―18. In the normal course, we would not have taken exception to the order
passed by the High Court. They are justified in saying that a delinquent
employee should not be permitted to revive the stale claim and the High Court
(2021) 1 SCC 804.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
in exercise of its discretion would not ordinarily assist the tardy and indolent
person. This is the traditional view and is well supported by a plethora of
decisions of this Court. This Court also has taken the view that there is no
inviolable rule, that, whenever there is delay the Court must refuse to
entertain a petition. This Court has stated that the writ court in exercise of its
extraordinary jurisdiction under Article 226 of the Constitution may condone
the delay in filing the petition, if the delay is satisfactorily explained.""
(emphasis supplied )
57. Reliance placed on judgments to state that the scope of judicial review
is limited in tender matter, is of no avail in the facts of the present case. The
scope of judicial review and scrutiny encompasses arbitrary, unreasonable,
and illegal treatment of the bidders by the Respondent. This has also been
stated in in the Supreme Court judgment of Tata Cellular v. Union of India6
that -
"77. ...
Therefore, it is not for the court to determine whether a particular policy
or particular decision taken in the fulfilment of that policy is fair. It is
only concerned with the manner in which those decisions have been
taken. The extent of the duty to act fairly will vary from case to case.
Shortly put, the grounds upon which an administrative action is subject to
control by judicial review can be classified as under:
(i) Illegality : This means the decision-maker must understand
correctly the law that regulates his decision-making power and must
give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety."
58. It is imperative to mention here that we are not concerned with the
decision of the Respondent no. 1 to drop „Advantech‟ as a model from the
specified brands qua Item 2(c) of the Technical Specifications, and the BOQ,
but the failure of the Respondent no. 1 to:
(1994) 6 SCC 651.
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Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
(i) Lay down clear and unambiguous tender conditions - if the
intention of the respondent was contrary to the plain and clear
language and structure of the Technical Specifications;
(ii) issue clarifications to the Petitioner after Amendment no. 3 was
issued.
By the aforesaid acts/ omissions the respondent No.1 has:
(i) Frustrated the very objective of the tender process.
(ii) Resorted to a procedure that is hit by the wednesbury principle of
unreasonableness.
59. Hence, we allow the writ petition and quash/set aside email dated
17.06.2021 rejecting the technical bid of the Petitioner. We further direct
Respondent no. 1 to open and evaluate the financial bid submitted by the
Petitioner in accordance with the Domestic Tender Inquiry Document dated
12th March, 2021 bearing tender ID 2021_HLL_73064_1 and process the
tender in accordance with law.
VIPIN SANGHI, J JASMEET SINGH, J
OCTOBER 05, 2021/dm
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:06.10.2021
16:28:40
