Delhi High Court

Cgmp Projects Pvt Ltd vs Food Safety And Standards ... on 2 June, 2022

                          $~5
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                         Date of Decision: 02.06.2022

                          +     W.P.(C) 7105/2022

                                CGMP PROJECTS PVT LTD                     ..... Petitioner
                                             Through: Mr. H.M. Mukherjee and Mr. K.
                                                      BhimrajAchary, Advocates.

                                                    versus

                                FOOD SAFETY AND STANDARDS
                                AUTHORITY OF INDIA AND ANOTHER             ..... Respondents

Through: Ms.Aishwarya Bhati, Additional Solicitor General with Mr. Rakesh Chaudhary, Mr. Suransh Chaudhary, Mr. Sushaar Chaudhary, Mr. Vijay and Mr. Gulshan Sharma, Advocates for respondent no. 1 and 2/FSSAI.

CORAM:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE SACHIN DATTA

SACHIN DATTA , J.(ORAL)

W.P.(C) 7105/2022 and C.M. Appl. No. 21817/2022

1. The present petition has been filed by the petitioner 226 of the Constitution of India read with Section 151 Code of Civil Procedure, 1980, seeking the following reliefs:-

"(a) Issue writ of mandamus against the Technical Evaluation Committee of the Respondent directing them to withdraw the findings dated 22.04.2022 against the Petitioner and to consider the Petitioner's representation and documents;

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15

(b) Direct the Respondent to allow the Petitioner to participate in the financial bidding"

2. The background in which the present petition has been filed is that respondents issued a request for RFP No. 04/2021-22 dated 07.01.2022 for setting up of Microbiology Section and Installation of Equipment on turnkey basis in 05 (five) regions across India, i.e., Eastern, North-Eastern, Western, Northern and Southern India. Bids were invited under two bid system, i.e., technical bid and commercial bid. As per the tender conditions, the technical bids are to be opened, first and commercial bids of only those firms will be opened whose technical bids were found complete after technical evaluation. A corrigendum was issued on 31.01.2022 making some changes in the specification of equipments in the RFP and extending the deadline for submission of bids.

3. The petitioner submitted its bid after which a meeting of the Technical Evaluation Committee (TEC) was held on 12.04.2022. The TEC observed therein as under:-

"6. All the 8 bidders presented their strengths in similar work. Based on presentation, documents submitted along with the bid and interaction with the bidders, the recommendations of the committee w.r.t clause 7 (e) of the tender document is as under:

                          S. No.      Name of Bidder                            Recommendation
                          (a)         M/s Asian Scientific Industries,          Recommended
                          (b)         M/s 7 Steps Consultores Pvt. Ltd. -Lead   Recommended
                                      M/s Syntec Airflow System Pvt.Ltd.-
                                      Consortium
                          (c)         M/s G&G Empire India Services Pvt. Ltd.   Not -Recommended
                                      - Lead                                    (Reason -M/s G&G Empire

M/s Advait Imports Exports - Consortium India Services Pvt. Ltd, being the lead bidder, does not

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15 possess the work experience of similar nature i.e. setting up of Microbiology lab. Hence not meeting the requirements of Clause 6.4 a (ii)

(d) M/s Auriga Research Pvt. Ltd. - Lead Recommended M/s ArbroPharamasecuticals Pvt. Ltd. -

Consortium

(e) M/s CGMP Projects Pvt. Ltd. - Lead Recommended M/s Beardsell Ltd. - Consortium

(f) M/s Lab Nation - Lead Recommended M/s Vasu Scientific Company -

Consortium

(g) M/s MM Drugs & Pharma - Lead Not -Recommended M/s MultitechTechnofab Enterprises - (Reason -M/s MM Drugs & Consortium Pharma, being the lead bidder, M/s Dharma Trading Corporation - does not possess the work Consortium experience of similar nature i.e. setting up of Microbiology lab.

                                                                              Hence     not    meeting     the
                                                                              requirements of Clause 6.4 a (ii)
                          (h)       M/s Pillar9 TAE India - Lead              Recommended
                                    M/s Eagle Techsec Communications (I)
                                    Pvt Ltd.-
                                    Consortium

M/s Gennext Scientific and IT Solutions - Consortium

4. On the basis of the above, it has been contended by the petitioner that its bid was found to be technically compliant by the tender evaluation committee and that it was wrong to thereafter find the Petitioner ineligible.

5. It is further pointed out that on 22.04.2022, another meeting of the Technical Evaluation Committee was held. Annexure III of the minutes of meeting dated 22.04.2022 contains a technical compliance statement of the eligible bidders. In the said statement, the following observations have been made with regard to technical compliance by various bidders, including the petitioner:-

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15

6. The factual veracity of the above observations could not be disputed by learned counsel for the Petitioner. It is also admitted that the Petitioner was unable to give the aforesaid clarification within the stipulated time. However, the petitioner contends that more time ought to have been granted to the petitioner for the said purpose.

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15

7. It is in the aforesaid backdrop that the present petition came to be filed. On 06.05.2022, while issuing notice and directing the respondents to file their counter affidavit, the following directions were given:-

"In the meantime, we direct the respondents to either not open any of the financial bids or, if they wish, they may open all the financial bids,including that of the petitioner. In case, the financial bids are opened and the petitioner is not found to be the lowest bidder, the respondents may proceed with the Impugned Tender. Same shall be done without prejudice to the rights and contentions of the parties."

8. We are informed that pursuant thereto, the bid of the petitioner was opened and the petitioner was found to be the L-1 bidder.

9. We are also informed that in light of the grievance made out by the petitioner in the instant petition, another meeting of the Technical Evaluation Committee was held on 18.05.2022 taking notice of the order passed by this Court on 06.05.2022. The said minutes record as under:-

"The order of the Hon'ble High Court dated 06.05.2022 in WP(C) No. 7105 of 2022 was shared with the members of the Technical Evaluation Committee (TEC). It was informed that in compliance with the said order from Hon'ble High Court, the financial bid of M/s CGMP Projects Private Ltd was opened on 10.05.2022 which is subject to the right and contentions of the parties as per the said order dated 06.05.2022. It is a matter of record that that the Technical Evaluation Committee (TEC) had evaluated the Technical Bids of all the qualified 05 bidders including that of M/s CGMP Projects Private Ltd. between 18.04.2022 to 20.04.2022 and the approved MOM dated 22.04.2022 of the TEC were uploaded on the CPP portal and the financial bids of 04 bidders were recommended for opening which were opened on 28.04.2022. It is further a matter of record that the Technical Bid of M/s CGMP Projects Private Ltd.

had been rejected vide TEC MOM dated 22.04.2022. The Technical Bid of M/s CGMP Projects Private Ltd. was primarily rejected on the ground that M/s CGMP Projects Private Ltd. had failed to

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15 supply/provide the required documents despite granting time till 19.04.2022 and with prima-facie findings towards the rejection of the bid. The said demanded/required documents were received for the first time on 21.04.2022 (i.e. by the time the Technical Evaluation had already been completed by the TEC, as evaluation was completed on 20.04.2022). Therefore, in absence of all the required documents, the Technical Compliance of the bid of M/s CGMP Projects Private Ltd. could not be completed. Hence, a meeting of the committee has been called for scrutinizing / evaluating the Technical Bid of M/s CGMP Projects Private Ltd in light of the additional documents received on 21.04.2022 (after due date) and the earlier documents submitted by M/s CGMP Pvt Ltd. Meanwhile, FSSAI contacted the users as per the user list of Next Era Technologies and Scientek hub (for 3 quoted instruments) submitted by M/s CGMP projects pvt ltd. The details are at Annexure IV.

The observations of the TEC are as under

1. TEC while scrutinizing the equipment details of M/s CGMP found that the specification of the instruments where the company has mentioned "YES' in the compliance statement, were actually differing from the specifications mentioned in the brochure provided by the company. Moreover many of the details including certification details were missing in the brochures provided by the company. For example, as per the compliance statement of the bidder, the efficiency of HEPA filters is mentioned as 99.999 % for particle size of 0.1-0.3 micron, whereas in the brochure, the efficiency is mentioned as 99.95% submitted by M/s CGMP., besides there is no mention of UV life meter in the brochure which are very crucial parameters for efficient working of this instrument. There was no mention of the website on the brochure and other documents submitted by the company; therefore TEC was unable to check the compliance against tendered specifications. Technical compliance details of all the equipment are attached as Annexure II. Since none of the expert had ever used majority of the quoted makes, the committee sought the user list of such instruments to check about the performance and service support in order to have a comprehensive evaluation of the technical details. As the required details were not received by TEC even by 20/04/2022

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15 when the committee had finalized its proceedings, the technical bid of M/s CGMP Projects Pvt Ltd was rejected.

2. M/s CGMP Projects Pvt Ltd submitted the user list of 20 instruments from Next Era Technologies (Make/ Model NXT) through mail on 21st April 2022. The committee observed as under :

a. There is no mention of Make and Model in the Users list for four (04) instruments.

b. For two (02) instruments the Make in the User list is different than the quoted Make which is quite misleading.

c. For nine (09) instruments, the quoted Models are different than those given in the user list.

d. There is no information regarding fumigator in the user list

Therefore, the compliance and performance of the quoted Makes and Models could not be established. Details are attached as Annexure III.

3. In the petition, M/s CGMP Projects Pvt Ltd has mentioned that all the documents related to Next Era Technologies have been provided by the bidder. However, after checking the brochures and bid document, it was observed that the complete details including safety certificates are not provided by the bidder. The website of Next Era Technologies as mentioned by the petitioner is www.nexteratechnologies.in wherein no details are given about the specifications of the instruments but only the name of the instrument and a picture are only available. There is no mention about the required performance and safety certificates of different instruments to confirm the compliance of the instruments.

Since the instruments offered by M/s CGMP Projects Private Ltd are not compliant to the tender specifications, the bidder is not found technically competent with respect to the equipment quoted in the bid."

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15

10. Annexure - II of the aforesaid minutes contain a detailed analysis of the make and model of each of the instruments offered by the petitioner, also containing reasons as to why the petitioner was not compliant with regard to most items.

11. In the above background, learned counsel for the petitioner contends that that although there were minor deviations/infirmities in the bid of the petitioner, the same were insignificant in nature and ought to have been condoned/ overlooked. It is further contended that in the case of another bidder the respondents have in fact condoned/overlooked certain minor deviations. It is further contended that another opportunity must be afforded to the petitioner to satisfy the respondents with regard to the deficiencies noticed with regard to make and model of the instruments submitted by the petitioner/bidder.

12. Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for respondent no. 1 has submitted that the main prayer of the petitioner was that respondent should withdraw the findings contained in the minutes dated 22.04.2022 against the petitioner and to consider the petitioner's representation and documents. It is submitted that this grievance has in fact been addressed, inasmuch as, all the documents/material submitted by the petitioner has been examined in detail in the minutes of Technical Evaluation Committee held on 18.05.2022. Elaborate reliance is also placed by Ms. Bhati on Annexure-II of the minutes of meeting dated 18.05.2022 wherein it has been brought out as to how most of the instruments of the petitioner did not meet the prescribed technical criteria.

13. We have heard learned counsels for the parties and have given our

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15 anxious consideration to the matter.

14. At the outset, we must note that the petitioner has been taking different pleas at various stages of the proceedings. It is rightly pointed out by Ld. ASG appearing on behalf of the respondent that in the first instance the petitioner relied upon the minutes of the Technical Evaluation Committee dated 12.04.2022 to contend that it had already met the relevant technical parameters. However, this submission of the petitioner is in the teeth of paragraphs 7 and 9 of the minutes dated 12.04.2022 itself, which specifically recorded that the Tender Evaluation Committee had recommended that pending documents may be obtained from various bidders, including the petitioner. Further, paragraph 9 of the same minutes dated 12.04.2022 records that "... technical evaluation of these six tentatively eligible bidders may be started." It was thereafter, that a detailed technical evaluation was carried out in the Technical Evaluation Committee meeting held from 18-20 April, 2022, where shortcomings in respect of the petitioner's proposed equipments were noticed and the petitioner was asked to submit certain information till 20.04.2022, which admittedly the Petitioner failed to do so.

15. We note that when this writ petition first came up for consideration, the primary grievance of the petitioner was that some further time ought to have been given to it to allay the concerns / shortcomings expressed in the aforesaid meeting of the technical evaluation committee which took place from 18-20 April, 2022.

16. It transpires from a perusal of the records of the case filed along with

the counter affidavit on behalf of the Respondent No. 1, that, in fact, even

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15 the additional documents/information belatedly furnished by the petitioner

were elaborately considered during the meeting of the Technical Evaluation

Committee held on 18.05.2022. Now again, the petitioner seeks to contend

that another opportunity must be accorded to it to submit further

clarifications/information.

17. We must express out disapproval at the manner in which the

petitioner has sought to take divergent pleas at different stages and elongate

the tender process.

18. We also note that the observations made in the minutes of the

Technical Evaluation Committee held on 22.04.2022 were, by themselves,

sufficient to disqualify the petitioner; however, the respondent has in fact

been more than accommodating in considering the belated

information/documents submitted by the petitioner, and conducting another

detail evaluation of the petitioner's instruments with a view to assess

compliance with the relevant tender specifications. As mentioned, a detailed

analysis was conducted by the Technical Evaluation Committee in respect of

the make and model of the instruments offered by the petitioner and the

same is contained in Annexure - II of the minutes dated 18.05.2022. The

relevant portion thereof reads as under:-

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15

19. It is beyond the province of this Court to sit in judgement over the aforesaid elaborate scrutiny conducted, and the conclusions drawn by the tender evaluation committee.

20. In Meerut Development Authority vs Association of Management Studies and Anr., 2009(6) SCC 171 the Supreme Court clarified the rights of aTenderer participating in the Tender Process as under:

"17. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-

made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. The

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15 bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations."

21. In the case of Agmatel India Pvt. Ltd. Vs. Resoursys Telecom and Others, 2002 SCC OnLine SC 113, after noticing authoritative pronouncements in the cases of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 and Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272, the Supreme Court has reiterated that, "(i) the authority that authors the tender documents is the best person to understand and appreciate the requirements and this its interpretation should not be second-guessed by a Court in judicial review proceedings; (ii) the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second -guessed by a writ Court; (iii) Technical evaluation or comparison by the Court is impermissible. Proceedings under Article 226 of the Constitution of India are concerned with the decision making process and are not meant to substitute the appraisal of any expert body/committee which has carried out the tender

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15 evaluation.

22. We notice that the Technical Evaluation Committee in the instant case comprised of high ranking scientists, microbiologists and food analysts. In the facts of the present case, there is no justification whatsoever to substitute or set aside the views of the said expert committee.

23. In the circumstances, we find no merit in the instant petition and the same is, hereby, dismissed with costs amounting to Rs.25,000/- payable to the Delhi State Legal Services Authority. Costs be deposited within four weeks.

SACHIN DATTA, J

VIPIN SANGHI, ACJ JUNE 2, 2022/AK

Digitally Signed By:RADHA BISHT Signing Date:09.06.2022 15:00:15