Trivitron Healthcare Private ... vs Kerala State Medical Services ...
2021 Latest Caselaw 12576 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
         THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
                          WP(C) NO. 11455 OF 2021
PETITIONER :-

             TRIVITRON HEALTHCARE PRIVATE LIMITED
0




             #15, IV STREET, ABHIRAMAPURAM, CHENNAI,
             TAMIL NADU - 600018, REPRESENTED BY ITS
             AUTHORIZED SIGNATORY, SANTHOSH NAMBADAN,
             MANAGER - TENDER KERALA (DIAGNOSTICS IVD)

             BY ADVS.
             SANTHOSH MATHEW
             ARUN THOMAS
             JENNIS STEPHEN
             VIJAY V. PAUL
             KARTHIKA MARIA
             VEENA RAVEENDRAN
             ANIL SEBASTIAN PULICKEL
             ABI BENNY AREECKAL
             LEAH RACHEL NINAN


RESPONDENTS :-

     1       KERALA STATE MEDICAL SERVICES CORPORATION LIMITED
             THYCAUD P. O., THIRUVANANTHAPURAM, KERALA - 695014.,
             REPRESNTED BY ITS MANAGING DIRECTOR.

     2       THE MANAGING DIRECTOR
             KERALA STATE MEDICAL SERVICES CORPORATION LIMITED,
             THYCAUD P. O., THIRUVANANTHAPURAM, KERALA - 695014.

     3       THE STATE APPELLATE AUTHORITY
             GENERAL MANAGER, KERALA STATE MEDICAL SERVICES
             CORPORATION LIMITED, THYCAUD P. O., THIRUVANANTHAPURAM,
             KERALA - 695014.

     4       THE TECHNICAL COMMITTEE
             TENDER NO.KMSCL/EP/T402(R)/1002C/2021,
             KERALA STATE MEDICAL SERVICES CORPORATION LIMITED,
             THYCAUD P. O., THIRUVANANTHAPURAM, KERALA - 695014.
             REPRESENTED BY ITS CHAIRPERSON.
 WP(C) NO. 11455 OF 2021
                                        -: 2 :-

       5          PERKIN ELMER (INDIA) PRIVATE LIMITED
                  G-CORP TECH PARK, 8TH FLOOR, B WING, KASARVADAVALI
                  GHODBUNDER ROAD, THANE WEST, THANE - 400615, MAHARASHTRA,
                  INDIA, REPRSNTED BY ITS MANAGING DIRECTOR.

       6          STATE OF KERALA
                  REPRESNTED BY THE SECRETARY TO THE GOVERNMENT,
                  DEPARTMENT OF HEALTH AND FAMILY WELFARE,
                  GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.

       7          NATIONAL HEALTH MISSION
                  GOVERNMENT OF KERALA, GENERAL HOSPITAL JUNCTION,
                  THIRUVANANTHAPURAM - 695 035,
                  RERESNETED BY ITS STATE MISSION DIRECTOR.

                  BY SRI.M AJAY FOR R1 TO R4 AND R7
                  BY SRI.K.P.HARISH, SR.GP


THIS       WRIT    PETITION   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
27.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11455 OF 2021
                                  -: 3 :-

                             JUDGMENT

This writ petition is filed challenging Ext.P12 4 th tender and the

conditions provided therein as also seeking directions to the

respondents to hear the petitioner and consider Exts.P13 and P16

representations preferred by it before proceeding with the tender.

2. The petitioner is a company involved in the business of

manufacture and sale of Newborn Screening test kits. It is submitted

that the 1st respondent had invited tenders for the supply of NBS test

kits to be used by the Government institutions in the State of Kerala.

It is submitted that the petitioner had participated in the tender. It is

stated that three tender processes were undertaken, but the tenders

had to be cancelled for various reasons. It is submitted that by

Ext.P12, a 4th tender is being conducted. The petitioner, who claims

to be one of the two companies operating in the field, submits that

the petitioner's bid may be rejected if the conditions freshly stipulated

in Ext.P12 are insisted upon. It is submitted that petitioner has

preferred Exts.P13 and P16 representations pointing out the issues in WP(C) NO. 11455 OF 2021

Ext.P12 tender document and has sought a consideration of the same.

It is submitted that if the tender is proceeded with without the

complaints raised by the petitioner being considered, the petitioner

will be put to irreparable prejudice and hardship.

3. Sri.M.Ajay, the learned counsel appearing for respondents 1

to 4 and 7 submits that the request made by the petitioner is to be

raised before the 2nd respondent, who is competent to consider the

issue. It is submitted that the 5th respondent, who has also

submitted tenders pursuant to the notices inviting tender, would have

to be heard before orders are passed on the request made by the

petitioner.

4. Having considered the contentions advanced, I am of the

opinion that it is for the appropriate authority to take a decision on

the complaints raised by the petitioner.

5. There will, accordingly, be a direction that in case the

petitioner produces a further copy of Exts.P13 and P16 before the 2 nd

respondent along with a copy of this judgment, the 2 nd respondent WP(C) NO. 11455 OF 2021

shall put the petitioner as well as the 5 th respondent on notice, hear

them through any appropriate means, including video conferencing

and take an appropriate decision on the representations.

6. The respondent shall make available a copy of the report of

the technical committee to the petitioner as well as the 5 th respondent

along with the notice for hearing to be served on them. The 2 nd

respondent shall also take an appropriate decision with regard to

either extending the last date for submission of bids as provided in

Ext.P12 or to permit the petitioner to submit a bid provisionally,

subject to the orders to be passed by the 2 nd respondent on Exts.P13

and P16 representations.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN, JUDGE

Jvt/27.5.2021 WP(C) NO. 11455 OF 2021

APPENDIX OF WP(C) 11455/2021 ANNEXURE/EXHIBITS

Exhibit P1 A TRUE COPY OF TENDER NO.KMSCL/EP/T225/1002C/2017 DATED 30.03.2017.

Exhibit P2 A TRUE COPY OF TENDER ORDER LOI/307/2017-2018/1002C1 DATED 30.11.2017.

Exhibit P2(a) A TRUE COPY OF NOTICE OF THE 1ST RESPONDENT DATED 13.09.2017.

Exhibit P3 A TRUE COPY OF OPERATION AND PERFORMANCE SATISFACTION LETTER DATED 11.07.2018 PROVIDED BY THE STATE PUBLIC HEALTH LABORATORY, THIRUVANANTHAPURAM.

Exhibit P4 A TRUE COPY OF PERFORMANCE CERTIFICATE DATED 5.11.2019 PROVIDED BY THE REGIONAL PUBLIC HEALTH LABORATORY, COCHIN.

Exhibit P4(a) A TRUE COPY OF PERFORMANCE CERTIFICATE FROM RPH LAB, CALICUT DATED 24.05.2021.

Exhibit P4(b) A TRUE COPY OF PERFORMANCE CERTIFICATE FROM RPH LAB, COCHIN DATED 24.05.2021.

Exhibit P5 A TRUE COPY OF LETTER FROM THE 7TH RESPONDENT TO THE 6TH RESPONDENTS DIRECTOR OF HEALTH SERVICE.

Exhibit P6 A TRUE COPY OF E-MAIL COMMUNICATION FROM THE PETITIONER FOLLOWING THE SUCCESSFUL COMPLETION OF THE TRAINING SESSIONS.

Exhibit P7 A TRUE COPY OF TENDER NO.KMSCL/EP/T331/1003C/2019 DATED 10.07.2019.

Exhibit P8 A TRUE COPY OF CHAIN OF COMMUNICATION BETWEEN PETITIONER AND 1ST RESPONDENT RAISING INQUIRIES AND CONCERNS RELATING TO THE TENDER PROCESS FOR THE SECOND TENDER DTED 9.1.2019.

WP(C) NO. 11455 OF 2021

Exhibit P9 A TRUE COPY OF TENDER NO.KMSCL/EP/T375(R)/1002C/2020 DATED 24.09.2020.

Exhibit P10 A TRUE COPY OF NOTICE DATED 10.02.2021 FROM THE 1ST RESPONDENT INFORMING THE PETITONER THAT THEY HAD BEEN TECHNICALLY DISQUALIFIED FROM THE TENDER PROCESS.

Exhibit P11 A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 12.02.2021.

Exhibit P12 A TRUE COPY OF TENDER NO.KMSCL/EP/T402(R)/1002C/2021 DATED 20.04.2021.

Exhibit P13 A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 27.04.2021.

Exhibit P14 A TRUE COPY OF EXTENSION NOTICE DATED 12.05.2021.

Exhibit P15 A TRUE COPY OF AMENDMENT NOTICE DATED 17.05.2021.

Exhibit P16 A TRUE COPY OF LETTER FROM THE PETITIONER DATED 18.05.2021 PREFERRING AN APPEAL BEFORE THE 3RD RESPONDENT APPELLATE AUTHORITY.

Exhibit P17 A TRUE COPY OF EXTENSION NOTICE DATED 24.05.2021.

Exhibit P18 A TRUE COPY OF THE CENTRAL VIGILANCE COMMISSONS OFFICE MEMORANDUM DATED 17/12/2002 ON PRE-QUALIFICATION CRITERIA.