Meghalaya High Court
Benson Medical Equipments India Pvt Ltd vs North Eastern Indira Gandhi Regional ... on 7 July, 2017
Equivalent citations: AIR 2018 (NOC) 273 (MEG.)
IN THE HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 294 of 2016
Benson Medical Equipments (India) Pvt. Ltd.
having its registered office at A-184,
Ground Floor, Meera Bagh, Paschim Vihar,
New Delhi-110087 and Corporate Office at 495,
Phase 5, Udyog Vihar, Gurgaon, Haryana-122016,
and is represented by its Managing Director
Sri Saandeep Nanda,
S/o Late Jagdish Nanda,
R/o B-439, Meera Bagh, New Delhi.
.... Petitioner
- VERSUS -
1. North Eastern Indira Gandhi Regional Institute of Health
and Medical Sciences (NEIGRIHMS), represented by its
Director, having office at Directors Block,
Mawdiangdiang,
Shillong-793018, Meghalaya.
2. The Deputy Director (Admn.)
North Eastern Indira Gandhi Regional Institute of Health
and Medical Sciences (NEIGRIHMS),
Directors Block, Mawdiangdiang,
Shillong-793018, Meghalaya.
3. Store and Procurement Officer,
North Eastern Indira Gandhi Regional Institute of Health
and Medical Sciences (NEIGRIHMS),
Directors Block, Mawdiangdiang,
Shillong-793018, Meghalaya
... Respondents
BEFORE
HON'BLE MR JUSTICE VED PRAKASH VAISH
Present
Mr. D. Borah ... Counsel for Petitioner
Mr. K. Paul ... Counsel for Respondents
Date of Hearing ... 05.07.2017
Date of Judgment ... 07.07.2017
WP(C) No. 294 of 2016 Page 1 of 11
BY HON'BLE MR. JUSTICE V.P. VAISH
JUDGMENT
By way of the present petition the petitioner challenged the action of the respondents in rejecting its bid proposal.
2. Briefly recapitulating the facts leading to the filing of the present petition are that an Online Open Tender dated 25th August, 2015 was released by the respondent No. 1 for the supply, installation and commissioning of Gas Pipeline and Manifold System (including operation for 10 years) on Turnkey basis as stated in the Tender. The last date for submission of tenders/bid documents and also for opening of the Techno-Commercial Bids was fixed on 26th October, 2015.
3. The petitioner submitted the two tier bids comprising of the Techno-Commercial Bids and Price Bids on 21st October, 2015.
4. General Instructions to the Tender also provides for Earnest Money Deposit (EMD) by the intending Tenderers and as per Clause 19.2 of the Tender document, the tenderers registered inter alia with the National Small Industries Corporation Limited (NISC) were eligible for exemption from payment of the EMD amount of Rs. 30 lakhs.
5. The petitioner, being registered with the NSIC and being in possession of the NISC Government Purchase Certificate dated 24th September, 2015, sought exemption from payment of the EMD amount. The petitioner thus participated in the tender process without depositing the EMD amount.
WP(C) No. 294 of 2016 Page 2 of 11
6. It is stated that before opening the technical bids, the respondents in a very clandestine manner wrote an e.mail on 24th November, 2015 to the NSIC seeking clarification from them as to whether the petitioner company was eligible for exemption from payment of EMD. The petitioner contended that this communication by the respondents was completely unwarranted and uncalled for.
7. It is further stated that in response to the e.mail dated 24th November, 2015 the NSIC sent a reply dated 30th November, 2015 that as per the policy all registered MSE units supplying goods and services are inter alia eligible for the benefit of exemption from payment of EMD as mentioned in Clause 10 of the said Policy.
8. The petitioner further stated that as per one of the terms of the Tender, the tenderer had the option to supply components or parts of foreign origin and in lieu of the same they had to produce one Manufacturer‟s Authorisation Form as per the standard form provided under Section XIV of the Tender. The petitioner furnished the same and was hopeful that the respondents in compliance with the Public Procurement Policy 2012 would consider their tender bid and select them.
9. The respondents pursuant to the tender summary report dated 27th November, 2015 rejected the bid of the petitioner on the ground that composite system is of „imported‟ origin and therefore EMD exemption is not applicable and further that the offered stores against Bill of Quantities Sl. Nos. 5.3, 14 and 15 of the Tender were not listed in the "Store Details" of the NSIC Government Purchase Enlistment Certificate dated 24th September, 2015. WP(C) No. 294 of 2016 Page 3 of 11
10. The petitioner challenged the action of the respondents being unwarranted as the Tender was a Composite Turnkey Requirement Tender as is evident from Section-I of the Tender document and as such it was not an Individual Product Tender.
11. It is further contended by the petitioner that nowhere in the Tender Evaluation Report Sheet did the respondents do a background check or did something to evaluate the credentials or competence of the rest of the competing firms/companies vis-a-vis the item mentioned against Sl. Nos. 14 and 15 of the BOQ i.e. Operating and Maintenance of the Medical Gas System and complete civil works and other accessories required for the MGPS project. It is contended that the action of the respondents is against the principles of equality and fair treatment.
12. Learned counsel for the petitioner vehemently argued that nowhere in the Tender document the respondents have mentioned that the ancillary items at Sl. Nos. 14 and 15 need to be mentioned along with the main item in the NSIC certificate, in order to claim exemption from payment of EMD amount of Rs. 30 lakhs.
13. It is further argued that the action of the respondents in rejecting the bid of the petitioner is in complete disregard of the applicable laws and judgments of the Supreme Court where it has been settled that tender conditions cannot be altered selectively to exclude or benefit on or some others. Thus, the action of the respondents is malafide.
14. It is further contended that the respondents have disregarded and ignored the advice of the NSIC that the petitioner is eligible for benefits as stated in the Policy, 2012. Despite that the WP(C) No. 294 of 2016 Page 4 of 11 petitioner‟s proposal was rejected in a very mechanical manner. It is contended that the decision making process in the present case has been vitiated by malafide and unreasonable and irrelevant factors and liable to be quashed and set aside.
15. The respondents opposed the petition and affidavit-in- opposition was filed. It is stated that in response to the open tender six bidders participated in the tender process. The tender committee of the respondents observed that bid of one of the tenderer M/s Atlas Copco India Ltd., Pune was commercially non-responsive due to non- submission of tender fee of Rs. 1000/- and EMD of Rs. 30 lakhs within the stipulated time and the petitioner sought exemption towards EMD by submitting NSIC enlistment certificate dated 24th September, 2015. However, the committee found that the petitioner was ineligible to avail facilities extended to Micro, Small & Medium Enterprises as the NSIC enlistment certificate of the petitioner under store(s)/service(s) did not include the indigenous stores offered against BOQ Sl. No. 5.3; Sl. No. 14-provision of manpower and engagement of professions for a period of 10 years and Sl. 15-civil works as per CPWD norms including building associated works. These were included in the schedule of stores and services listed from Sl. 1 to 15 in the bidding/tender documents. Therefore, the NSIC certificate of the petitioner does not cover all the items of BOQ-Item description covered by the subject tender.
16. Learned counsel for the respondents pointed out that Government of India Notification S.O. 200 E and SO 199 EE dated 16th January, 2009 in respect of Micro, Small and Medium Enterprises Development (MSMED) Act, 2006 forwarded vide Office WP(C) No. 294 of 2016 Page 5 of 11 Memorandum No. 2(3)/1/2008 MSME POL, dated 5th February, 2009, outlined condition No. 11 that "in case of change of products and that of services or addition in products or services, the enterprises who have already filed Entrepreneurs Memorandum should inform the DIC of the same in writing within three months of the change". The acknowledgement of Entrepreneur Memorandum Part-II No. 060182103515, dated 17th August, 2015 as digitally signed by the Joint Director, DIC, Gurgaon, Haryana certified by the Director of the petitioner company include only Operation and examination Tables, Adjustable Beds-Hospital, Hospital furniture and Steel Tables- Hospitals in the items of the manufacturer/types of services rendered by the petitioner.
17. Learned counsel for the respondents urged that Entrepreneur Memorandum Part-II of the petitioner does not cover all the items of work as per BOQ description covered by the subject tender. There are no additional documents in the petitioner‟s Memorandum Part-II to show that all the specified goods as per tender enquiry specification are included in the items of the manufacturer/type of service to be rendered by the petitioner.
18. It is also stated by learned counsel for respondents that the NSIC certificate of the petitioner did not cover all the item of work covered by the tender. There were no additional documents in the Entrepreneur Memorandum Part-II to suggest that all the specified goods as per the tender are included in the items of the manufacture/type of service to be rendered by the entrepreneur. WP(C) No. 294 of 2016 Page 6 of 11
19. Learned counsel for the respondents contended that the final commercial report with tender summary report was uploaded after proper verification of facts/documents. The respondents had also received additional clarification from the Nodal Ministry, Office of Development Commissioner, Ministry of Micro, Small & Medium Enterprises has clarified that public procurement policy for micro and small enterprises is applicable to central ministries/departments/PSUs and not to autonomous bodies of Central Government.
20. The respondents also relied upon the judgment of Division Bench of the Delhi High Court in the case of 'M/s Opaque Infrastructure Pvt. Ltd. vs. Union of India & Ors.' WP(C) No. 1344/2015 decided on 26th March, 2015, wherein a similar issue, as in the present case, arose for consideration and the Hon‟ble High Court ruled against the petitioner of said case.
21. I have given my anxious thought to the submissions made by learned counsel for the parties. I have also gone through the documents placed on record.
22. The respondent floated online open tender vide Tender Enquiry No. NEIGR/S&P/OT/E-33/2015-16 dated 25th August, 2015 for design, supply installation, commissioning testing, operation, and maintenance of centralized medical gas manifold system for 500 bedded hospital including OT‟s and 100 ICU beds, at NEIGRIHMS, Shillong on complete turnkey basis. An amount of Rs. 30 lakhs was fixed as Earnest Money Deposit (EMD).
WP(C) No. 294 of 2016 Page 7 of 11
23. However, Clause 19.2 of the tender document provides for exemption from Earnest Money Deposit (EMD). The said clause is reproduced herein under:
"19.2 The tenderers who are currently registered and, also, will continue to remain registered during the tender validity period with Directorate General of Supplies & Disposals or with National Small Industries Corporation, New Delhi for the specific goods as per tender enquiry specification shall be eligible for exemption from EMD. Vague stipulations in the Registration Certificate such as "to customers' specification" etc. will not be accepted for exemption from furnish of earnest money. In case the tenderer falls in these categories, it should furnish copy of its valid registration details (with DGS&D or NSIC, as the case may be)."
24. The description of BOQ items under different heads has been mentioned in the tender. The relevant clauses 5.3, 14 and 15 of the same read as under:
FORMAT OF BOQ-ITEM DESCRIPTION Sl. Description of Stores/Items Unit/Pack No 5.3 Supply, installation, testing & commissioning of Electrical Control Panel for the vacuum system complete with single phase preventers, starters, controls, voltmeter, ammeters, gauges, hour Complete Unit meter, fuses, switchgears, MCCB and main switch etc. The system should be complete as required with all accessories as per technical specification.
14. Operation and Maintenance of Medical Gas System at NEIGRIHMS The man power cost towards engagement of the professionals should quoted/offered in the price bid on lumpsum basis for ten years of operation Lumpsum and the same shall be taken for the purpose of tender/price Evaluation. The bills towards engagement of manpower shall be claimed by the bidder with the requisite supporting documents on half yearly basis.
15. Complete Civil works and other accessories required for the MGPS project. Lumpsum WP(C) No. 294 of 2016 Page 8 of 11
25. The E-tender comprises of tendered technical specification, schedule of stores and services listed from Sl. No. 1 to 15 and the bidders have to offer the cost for all the schedules. The certificate issued by the NSIC and submitted by the petitioner reads as under:
Sl. Store(s)/ Service(s) Specification(s) Qualitative Quantitative No. Name Capacity Capacity P.M.P.S.
1. SITC of medical As per As per 10000 Nos.
gases and vaccum HTM/NFPA/ISO Hospitals
pipeline system on requirements
turnkey basis from
source equipments
to the gas
outlets/terminal
points including
oxygen flow meters
suction units etc.
wall mount/ceiling
bed head units
and pendants
2. SITC of modular As per As per 2000 Nos
operation theatres HTM/NFPA/ISO Hospitals
on turnkey basis requirements
including its walls,
laminar flow,
surgeon control
panel, electrical
wiring, X-ray view
screen, OP Light,
OT table, OT
pendants, false
ceiling, lighting,
flooring, sub-
structure etc.
3. SITC of all types CE/UL/ISO As per 1000 Nos.
of medical Hospitals
equipments, requirements
consumable,
CSSD
26. The NSIC Enlistment Certificate dated 24th September, 2015 of the petitioner clearly reveals that it does not include provisions of manpower and engagement of professionals for a period of 10 years and cost of civil works as per CPWD norms including building and associated works, as per the tender enquiry. According to the respondents, these not being mentioned in the store details of WP(C) No. 294 of 2016 Page 9 of 11 the NSIC certificate, rendered the petitioner ineligible for availing the benefits including exemption from payment of EMD.
27. A perusal of the tender condition quoted hereinabove clearly stipulates that the tenderers who were registered for the specified goods as per tender enquiry specification shall be eligible for exemption from EMD. Thus, the tender document itself stipulated that the NSIC certificate must cover the items/specifications tendered.
28. The tender being multiple item composite tender comprises of different, schedule of stores and services listed from Sl.
No. 1 to 15 as per the Bill of Quantities and price bids cost of all individual schedules in totality shall be taken for the purpose of price evaluation. The petitioner not being enlisted for three of the Schedule of Stores and Services listed from Sl. No. 1 to 15 as per the Bill of Quantities in the NSIC enlistment certificate, was not eligible to seek exemption from submission of EMD. The petitioner‟s NSIC Enlistment Certificate does not list the stores/services included in the tender enquiry specifications like provision of Manpower and engagement of professionals for a period of 10 years and cost of civil works as per CPWD norms including building and associated works, as per the tender enquiry specification. The Committee which evaluated the bids also noted that the stores i.e. electrical control panel for the vacuum system with single phase preventers, starters, controls, voltmeter, ammeters, gauges, hour meter, fuses, switchgears, MCCD and main switches etc., which are important stores/services and part of the tendered specifications, were not listed in the enlisted stores details of the NSIC Certificate issued to the petitioner.
WP(C) No. 294 of 2016 Page 10 of 11
29. Division Bench of Delhi High Court in M/S Opaque Infrastructure Pvt Ltd vs Union of India & Anr.'s case (supra) considered an identical issue. It was held as under:
"20. The petitioner submitted the bid being aware of the tender conditions and as such the petitioner should have ensured that if the petitioner was claiming exemption from payment of Earnest Money Deposit then the certificate submitted by it should conform to the tender conditions. The petitioner, having not submitted either the Earnest Money Deposit or a valid certificate qualifying for an exemption, cannot be permitted raised to a grievance of rejection of the bid.
21. There is no merit in the contention of the counsel for the petitioner that the respondents could not have qualified the NSIC certificate by making it restricted to the items covered by the tender and NSIC certificate should have been treated as valid for all items. The tender document itself stipulated that the certificate must cover the items tendered. The petitioner, being aware of the said tender conditions participated in the tender and having participated in the tender, cannot challenge or impugn the tender condition. The petitioner having participated in the tender process can only expect equality and fair treatment in the matter of evaluation of competitive bids. The petitioner cannot be permitted to challenge the terms and conditions of the tender after he had participated in the same.
22. Since the petitioner neither submitted the EMD nor a valid certificate as required by the tender conditions, the bid of the petitioner was clearly non-responsive. The respondent No. 2, in our view, has rightly rejected the technical bid of the petitioner."
30. Having considered the facts and circumstances of the case and Judgment in the case of „M/S Opaque Infrastructure Pvt Ltd' (supra), I do not find any merit in the petition. The same deserves to be dismissed and the same is accordingly dismissed.
31. No costs.
JUDGE Dated, the 07th July, 2017 V. Lyndem WP(C) No. 294 of 2016 Page 11 of 11