Delhi High Court - Orders
Fujifilm India Private Limited vs Hll Infra Tech Services Limited & Ors on 26 September, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Sanjeev Narula
$~20.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8944/2023 & CM APPL. 33923/2023, CM APPL.
45974/2023
FUJIFILM INDIA PRIVATE LIMITED
..... Petitioner
Through: Mr. Jayant Mehta, Sr. Advocate with
Mr. Aman Varma and Ms. Riya
Wasade, Advocates.
versus
HLL INFRA TECH SERVICES LIMITED & ORS.
..... Respondent
Through: Mr. Nikhilesh Krishnan with
Ms.Ritika Priya, Advocates for R-2.
Mr. Ashim Sood, Mr. Shrey Sharma,
Mr. V. Audityaa and Mr. Kuberinder
Bajaj, Advocates for R-3.
Mr. Satya Ranjan Swain, Senior Panel
Counsel, AIIMS with Ms. Kautilya
Birat, Advocate. Prof (Dr.) Anoop
Saraya, HOD, AIIMS.
Mr. Rakesh Kumar, CGSC with
Mr.Sunil, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 26.09.2023
1. The present writ petition impugns the rejection of the Petitioner‟s technical bid in relation to Domestic Tender Inquiry/ Bid Document This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2023 at 20:30:10 GEM/2022/B/2453837 dated 30th August 2022 (the „Subject Tender‟), issued by Respondent No. 1 for the supply and maintenance of 43 Video Endoscopy Systems (the „VES‟) for the upcoming medical institutes under the Pradhan Mantri Swasthya Suraksha Yojana.
2. The Petitioner herein, Fujifilm India Pvt. Ltd., is a company incorporated under the Companies Act, 1955, engaged in the development and manufacture of medical devices. Respondent No. 1 is a wholly owned subsidiary of HLL Lifecare Limited, a public sector undertaking under the Ministry of Health and Family Welfare, Government of India.
3. The facts of the case reveal that as part of the technical bid in the Subject Tender, bidders had to comply with the list of technical specifications for each component of the VES (the „Technical Specifications'). The Technical Specifications for the Colonovideoscope, to the extent relevant are as follows:
"3 Colonovideoscope- 1 No. 3.3 Inbuilt Feature like Variable/ Graduated Stiffness, High Force transmission & Passive bending for ease of insertion;"
4. Before the closing of the technical bid, Respondent No.1 issued various Technical Corrigenda amending the Technical Specifications for the Subject Tender. Point 3.3 of the Technical Specifications, as extracted above, underwent the following changes:
Sl Date Amended version of Point 3.3 Justification
No.
1 15th October, Inbuilt Feature like user- For better
2022 controlled Variable and clarity in the
Graduated stiffness, High force specification
transmission & Passive Bending
for ease of Insertion
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2023 at 20:30:10 2 23rd November, Inbuilt Feature like user- For wider 2022 controlled Variable/ Graduated participation stiffness, High force transmission/true torque & Passive Bending/I-flex for ease of Insertion
5. Thereafter, on 1st December 2022, Respondent No. 1 issued a clarification justifying the amendments made in Corrigendum dated 23 rd November2022 (the „Clarification‟).The Clarification noted the representations received from prospective bidders which were considered by Respondent No. 1 while undertaking the amendments. With respect to Point 3.3, the Clarification noted the representations as follows:
"We request to kindly re-amend it as "Inbuilt feature like user- controlled Variable/ Graduated Stiffness, High Force transmission & Passive bending for ease of insertion." Kindly note that variable and graduated stiffness are same terminology..."
6. It is pertinent to mention that during this period, the Petitioner sent numerous letters to Respondent No.1 dated 13th September 2022, 18th October 2022, 25th November 2022 and 5th December 2022 seeking amendments to various Points in the Technical Specifications but never sought any amendment/clarification with respect to Point 3.3.
7. Thereafter, on 24th January 2023, the Petitioner submitted its technical bid to the GEM Portal stating that all the points listed in the Technical Specifications were complied with. Thereafter, Respondent No.1 sent an email dated 7th March 2023 to the Petitioner seeking clarification on compliance with Point 3.3 i.e., whether graduated stiffness in the Colonovideoscope model offered by the Petitioner was user controllable.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2023 at 20:30:11
8. The Petitioner responded to the query on 9th March 2023 stating that stiffness adjustor technology could either be (i) user controlled variable stiffness or (ii) graduated stiffness; these are different/competing technologies which are both accepted under the Technical Specifications. The Petitioner clarified that the Colonovideoscope model submitted i.e., EC- 720R (the „Model‟) was equipped with graduated stiffness technology and was not user-controllable.
9. Subsequently, on 15th June 2023, the Technical Evaluation summary for the Subject Tender was uploaded on the GEM Portal which revealed that the Petitioner was technically disqualified. The Petitioner immediately sent a representation to Respondent No. 1 objecting to its disqualification stating that the terminology used in Point 3.3 of the Technical Specifications created an imagined feature that does not exist in the market i.e., inbuilt user- controlled graduated stiffness.
10. Thereafter, vide response dated 22nd June 2023, Respondent No. 1 stated that the Model submitted by the Petitioner lacked an inbuilt user- controlled variable/graduated stiffness and hence did not fulfill the Technical Specifications. On the same day, the price bid for the Subject Tender was opened and Respondent No. 3 was selected as the L1 bidder.
11. Aggrieved by the actions of Respondent No.1, the Petitioner preferred the present writ petition seeking inter alia to set aside the rejection of its technical bid and to direct Respondent No. 1 to re-open the Price Bid for the Subject Tender.
12. Learned Senior Counsel for the Petitioner, Mr. Jayant Mehta, contends that the rejection of the Petitioner‟s bid by Respondent No. 1 is arbitrary and unreasonable as graduated stiffness technology cannot be user This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2023 at 20:30:11 controlled. He submits that the language of Point 3.3 grants an option to bidders to either submit a model with (i) user controlled variable stiffness technology or with (ii) graduated stiffness technology and in compliance with the choice granted by Point 3.3, the Petitioner submitted the Model with graduated stiffness technology.
13. Learned Counsel for Respondent No. 1 submits that the interpretation advanced by the Petitioner is against the plain language of Point 3.3, especially when read along with the Clarification. It is submitted that Point 3.3 grants a choice between (i) user-controlled variable stiffness technology and (ii) user-controlled graduated stiffness technology. While variable stiffness and graduated stiffness are used interchangeably, the requirement of user-controlled technology is mandatory for both options under Point 3.3.
14. As the dispute in this case concerned interpretation of Technical Specifications for a medical device, vide interim order dated 18.09.2023, this Court requested for expert assistance from the All-India Institute of Medical Sciences. Accordingly, Prof (Dr.) Anoop Saraya was designated to assist this Court in the present matter.
15. In the hearing today, this Court had a detailed interaction with Dr. Anoop Saraya regarding Point 3.3 of the Technical Specifications. Dr. Saraya explained that the term „user-controlled variable/graduated stiffness‟ in Point 3.3 meant that a bidder was required to submit an EVS with either
(i) user-controlled variable stiffness technology or (ii) user-controlled graduated stiffness technology, both of which are similar user-controlled stiffness adjustors that help the endoscopist perform the colonoscopy without causing significant discomfort to the patient.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2023 at 20:30:11
16. Further, contrary to the claims of the Petitioner, Dr. Saraya clarified that EVS models with user-controllable graduated stiffness adjustor technology are not only available in the market but are also manufactured by the Petitioner. In this regard, Dr. Saraya brought to the notice of this Court that the Petitioner manufactures FujiFilm (7000 System), an EVS model that fulfills Point 3.3 of the Technical Specifications. However, FujiFilm (7000 System was not offered by the Petitioner in the Subject Tender.
17. Under these circumstances, Dr. Saraya categorically stated that the EVS submitted by the Petitioner did not fulfill Point 3.3 of the Technical Specifications as the stiffness adjustor therein was not user controllable.
18. In light of the clarifications provided by Dr. Saraya, this Court has no hesitation in holding that the technical bid of the Petitioner was rightly rejected by Respondent No. 1 for non-fulfillment of Technical Specifications provided in the Subject Tender.
19. This Court is grateful for the assistance provided by Dr. Saraya in the present matter.
20. Accordingly, the writ petition is dismissed.
SATISH CHANDRA SHARMA, CJ SANJEEV NARULA, J SEPTEMBER 26, 2023 N.Khanna This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/10/2023 at 20:30:11