Delhi High Court - Orders
M/S Verve Human Care Laboratories vs Union Of India & Ors on 28 February, 2022
Author: Vipin Sanghi
Bench: Vipin Sanghi, Dinesh Kumar Sharma
$~40 & 41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
40
+ W.P.(C) 3270/2022, CM APPL. 9516/2022
M/S VERVE HUMAN CARE LABORATORIES ..... Petitioner
Through: Mr. Kirti Uppal Sr. Advocate along
with Mr. Rohit Goel, Ms. Riya Gulati
and Mr. Anish Dewan, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Vikram Jetly CGSC for
Respondent No. 1 and 2 /UOI .
41
+ W.P.(C) 3357/2022, CM APPL. 9810/2022, CM APPL.
9811/2022, CM APPL. 9812/2022, CM APPL. 9813/2022, CM
APPL. 10103/2022
M/S MAAN PHARMACEUTICALS LTD. ..... Petitioner
Through: Mr. Deepak Jain, Mr. K. B. Pradeep
Ms. Jaspreet aulakh, adv. & mr.
tanpreet gulati, adv.
versus
CENTRAL MEDICAL SERVICES SOCIETY (CMSS) & ANR.
..... Respondents
Through: Ms. Aakansha Kaul, Mr. Manek
Singh, Mr. Aman Sahani, Mr. Karna
Chhibar and Ms.Sakshi Juneja, AGM
(ROC) for R-3/CMSS
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 28.02.2022
1. Respondent No. 3 produced the original record, and with the assistance of the counsel, we have gone through the relevant record. The Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:05.03.2022 16:35:08 first grievance raised by the Petitioner is in relation to two entities, who had been qualified and declared as lowest bidders in respect of the second round of tendering undertaken by the Respondents, for the same drug.
2. It is the case of the Petitioners that on their complaints - pointing out that the said two entities had submitted false and fabricated certificates and documents with their bids, tendering process was cancelled.
3. Ms. Kaul, has drawn our attention to the minutes of meeting of concerned Committee held on 16.02.2021, to discuss the representations received from in respect of the two bidders, regarding procurement of Buprenorphine 2 mg against tender No. CMSS/PROC/2020-21/NACO/023 (the Second Tender). The said minutes indicate that in relation to M/s Centurion Laboratories Pvt. Ltd as well as M/s Consern Pharma Ltd, the Committee found substance in the complaints made against them. One of the conclusions drawn in the said meeting was to escalate the issue in relation to the said two entities with CDSEO. The recommendation of the Committee was to cancel the tender, and float a fresh tender with revised specifications.
4. In response to our query, Ms. Kaul-learned counsel for the respondent No.3, states that no further enquiry/investigation was undertaken on the complaints made against the said two companies - M/s Consern Pharma Ltd and M/s Centurion Laboratories Pvt. Ltd., since it was decided to cancel the Second Tender itself. However, she candidly states that furnishing of false and fabricated documents by the bidder would disqualify the bidder from participating in further tenders. She submits that neither of these two entities participated in the Third Tender, which was floated by the respondent for the same products.
5. Having perused the aforesaid minutes, we are of the view that, in Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:05.03.2022 16:35:08 case, the same two companies participate in the current/Fourth Tender, before evaluation of the bids, that they may submit, the respondent should undertake a transparent and thorough enquiry into the complaints made against them by petitioners of their having submitted forged and fabricated documents and certificates while participating in the 2nd tendering process.
6. Mr. Uppal, senior counsel for the petitioner has drawn our attention to an order passed by the Kerala High Court in Centurion Laboratories (Division of Centurion Remedies Pvt. Ltd.), Represented by its Director, Mahipat A. Patel v State of Kerala, Represented by Additional Chief Secretary to Government of Kerala, Department of Health and Family Welfare and Another [2020 SCC OnLine Ker 1860: AIR 2021 (NOC 36) 14] in relation to one of the two entities, namely M/s Centurion Laboratories Pvt. Ltd., where the Kerala High Court has also found the said entity guilty of submitting false and fabricated documents, and on that premise their blacklisting was upheld. The respondent should closely examine the said decision while carrying out the investigation/inquiry in case M/s Centurion Laboratories Pvt. Ltd. participates in the current / Fourth Tender.
7. So far as the Third Tender is concerned, wherein the petitioners before us in W.P.(C). 3357 /2022 and W.P.(C) 3270/20222, have been qualified as L1 and L2 bidders respectively, Ms. Kaul submits that despite negotiation with the said bidders, the rates for Buprenorphine 2 mg were found to be non- competitive. In this regard, she has drawn our attention to the file noting dated 08.02.2022.
8. The file noting also takes note of the fact that another bidder has approached, and offered the same drug at much lower rates. This proposal was approved and, consequently, the Fourth Tender was issued. She has also Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:05.03.2022 16:35:08 sought to tender in Court the copies of some of the purchase orders placed on the same M/s Consern Pharma Pvt. Ltd. at lower rates, which are higher than the negotiated rates offered by the Petitioners in the Third Tender process.
9. On the other hand, the submission of the petitioner is that the respondents themselves have been procuring the same drug at rates higher than negotiated rates. Our attention has been drawn to some of the purchase order in this regard which are placed on record. On this aspect we would require the respondents to file their counter affidavits, since the documents shown to the Court have not been shared with the petitioners.
10. Let the counter affidavits/short affidavits be filed within two weeks as prayed for, with the advance copy to the petitioner, who may file rejoinder within three weeks thereafter.
11. In the meantime, the petitioners may participate in the tender process without prejudice to their rights and contentions. However, the tender shall not be finalized
12. List on 29th March, 2022.
13. Order dasti.
VIPIN SANGHI, J DINESH KUMAR SHARMA, J FEBRUARY 28, 2022 Pallavi Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:05.03.2022 16:35:08