Karnataka High Court
Wipro Ge Helathcare Private Limited vs National Institute Of Mental Health And on 19 July, 2013
Equivalent citations: 2013 (4) AKR 538
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION No.23762 OF 2013 (GM-TEN)
C/W
WRIT PETITION No.14573 OF 2013 (GM-TEN)
IN W.P No.23762/2013
BETWEEN:
Wipro GE Healthcare Private Limited
A Company incorporated under the
Companies Act, 1956
Having its registered office at
No.4, Kadugodi Industrial Area
Bangalore-560 067
Rep by its Authorised Signatory &
Government Sales Manager
(Karnataka & Andhra Pradesh)
Mr. P. Sandeep. ..Petitioner
(By Sri Naganand, Sr. Counsel for
Sri Hegde Ganapathi Narayan, DUA Associates, Advs.,)
AND :
1. National Institute of Mental
Health and Neurosciences
(Deemed University)
P.B.No.2900, Hosur Road
2
Bangalore-560 029
Rep by its Director/Vice Chancellor
Presently Dr. P. Satishchandra.
2. Siemens Limited
A Company incorporated under
the Companies Act, 1956
Having its registered office at
130, Pandurang Budhkar Marg
Worli, Mumbai-400 013.
Having its branch office at
No.49, Jyotimahal Building
3rd Floor, St. Marks Road
Bangalore-560 001
Rep by its Director/Authorised Signatory.
3. Philips Electronics India Limited
A company incorporated under
the Companies Act, 1956
Having its registered office at
7, Justice Chandra Madhab Road
Kolkata-700020
Having its Branch Office at
Philips Innovation Campus
Manyata Tech Park
Nagawara, Bangalore-560 045
Rep by its Director/
Authorised Signatory. ..Respondents
(By Sri K.G. Ragavan, Sr. Counsel for
Sri T.S. Amarkumar, Adv., for C/R2 for M/s. Lawyers Inc.;
Sri A. Madhusudana Rao, Adv., for C/R1 and
Sri Udaya Holla, Senior Counsel for Smt. Nalina Mayegowda
for M/s. Poovayya & Co., Adv., for R3)
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This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to declare the process of
selection of the lowest bidder by the first respondent is
arbitrary and illegal and consequently quash the decision
made by the first respondent pertaining to accepting the
technical bid of the second respondent and opening of the
financial bid of the second respondent etc.,
IN W.P No.14573/2013
BETWEEN:
Philips Electronics India Limited
A company incorporated under
the provisions of the
Companies Act, 1956
Having its registered office at
7, Justice Chandra Madhab Road
Kolkata-700020
Having its Branch Office at
Philips Innovation Campus
Manyata Tech Park
Nagawara, Bangalore-560 045
Rep by Mr. V.P. Thirumalai
Regional Sales Manager. ..Petitioner
(By Sri Udaya Holla, Sr. Counsel for
Smt. Nalina Mayegowda for Poovayya & Co., Advs.,)
AND :
1. National Institute of Mental
Health and Neurosciences
(Deemed University)
P.B.No.2900, Hosur Road
4
Bangalore-560 029
Rep by its Director/Vice Chancellor
Presently Dr. P. Satishchandra.
2. Siemens Limited
Having its registered office at
130, Pandurang Budhkar Marg
Worli, Mumbai-400 013.
Having its branch office at
No.49, Jyotimahal Building
3rd Floor, St. Marks Road
Bangalore-560 001
Rep by its Authorised
Signatory/Director.
3. Wipro GE Healthcare Private Limited
Having its office at Unit No.1
4th Floor, Inventor Building
ITPL, Whitefield
Bangalore-560 066
Rep by its Authorised
Signatory/Director. ..Respondents
(By Sri K.G. Ragavan, Sr. Counsel for
Sri T.S. Amarkumar, Adv., for C/R2 for M/s. Lawyers Inc.,;
Sri A. Madhusudana Rao, Adv., for C/R1 and
Sri Naganand, Senior counsel for Sri Hegde Ganapathi
Narayan for Dua Associates, Adv., for R3)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to direct the R1 to
consider and approve the technical bid of the petitioner
dated 22.3.2013 vide Annexure-G.
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These Writ Petitions having been heard and reserved
for Orders, coming on for pronouncement of order this day,
the Court made the following :
ORDER
These writ petitions are filed praying for approval of the petitioners' technical bids in respect of the notification issued by the National Institute of Mental Health and Neurosciences ('NIMHANS' for short) for purchase of Integrated Simultaneous/Sequential 3T MR PET Scanner System. Consequently, the petitioners have prayed for direction to NIMHANS to open and consider the financial bids of the petitioners. Certain consequential reliefs are also prayed.
2. NIMHANS is one of the premier health and research institutes in India and is a deemed University under the provisions of the University Grants Commission Act. The NIMHANS invited Expression of Interest from prospective bidders by letter dated 23.8.2012 for supply, installation, 6 commissioning etc., of "A New State of Art, Top of the Line 3T MR PET MRS Scanner System with Latest Generation Gradient System". Petitioners as well as Respondent - Siemens Limited ('SIEMENS' for short) submitted their responses. It is relevant to note that the petitioners and the respondent - SIEMENS are the only companies in the world who are said to be manufacturing and supplying the integrated simultaneous/sequential 3T MR PET Scanner System. The Expressions of Interest received from the bidders were opened on 14.9.2012. Thereafter pre-bid meeting was held on 21st October 2012 in which the petitioners and SIEMENS were participated. The aforementioned three bidders and NIMHANS agreed on a common list of specifications.
The Tender Notification dated 16.1.2013 was issued by NIMHANS for Integrated Simultaneous 3T MR PET Scanner System. In response thereto, petitioner in Writ Petition No.14573/2013 viz., Philips Electronics India 7 Limited ('PHILIPS' for short) issued letter dated 21.1.2013 to NIMHANS requesting for certain amendment to the tender document including deletion of "The PET detectors should be housed within the MR magnet". Essentially, the PHILIPS requested that while simultaneous 3T MR PET were invited, sequential 3T MR PET be included in the scope of the tender. Thereafter the Corrigendum was issued on 8.2.2013 (vide Annexure-C in Writ Petition No.14573/2013) to the Tender Notification.
Pursuant to the notification dated 16.1.2013, NIMHANS received only a single bid from SIEMENS. Since there was a single bid, NIMHANS decided to re-notify the tender item and as such second global tender notification dated 19.2.2013 was published by NIMHANS inviting bids. Technical Committee recommended certain modifications to the specifications. Pursuant to the second notification, only two bidders viz., WIPRO and SIEMENS participated. Both did not qualify the technical requirements. 8
Thereafter NIMHANS issued another Tender Notification (third Call) dated 16.3.2013 inviting bids once again for simultaneous 3T MR PET. PHILIPS issued another letter dated 8.3.2013 (signed on 18.3.2013) vide Annexure- E in Writ Petition No.14573/2013, requesting NIMHANS to include sequential 3T MR PET also. In the meanwhile, petitioner in W.P. No.23762/2013 viz., Wipro GE Healthcare Private Limited ('WIPRO' for short) also wrote letter to the Joint Secretary to the Government of India requesting certain changes in the tender conditions. Thereafter a Corrigendum was issued by NIMHANS on 21.3.2013 (vide Annexure-F in Writ Petition No.14573/2013) modifying the tender condition viz., "Supply, Installation, Commissioning, Demonstration of Performance, Training of Personal and Provisions of Guarantee of Performance State of Art, Top of the Line, Integrated Simultaneous/Sequential 3T MR PET Scanner System", meaning thereby NIMHANS accepted the 9 contentions of the petitioners that bidders offering sequential technology should also be allowed to participate in the tender.
The technical bids were opened on 23rd March 2013 in presence of representatives of all the bidders. NIMHANS called on the bidders by sending e-mail dated 23.3.2013 to depute their representatives to attend the purchase committee meeting scheduled to be held on 24th and 25th March 2013 onwards. On 24.3.2013, representatives of all the three bidders made detailed presentations to the purchase committee of NIMHANS. In the evening of 24.3.2013, according to the petitioners they were informed orally that the technical bid of SIEMENS was accepted. They were further informed orally that the financial bid of SIEMENS would be opened as per law.
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3. According to the petitioners, though their bids were technically compliant, no reasons were provided for considering the financial bid of the SIEMENS only. In other words, the petitioners contend that their technical bids are rejected without assigning any reason.
Sri Naganand, learned senior advocate appearing on behalf of WIPRO (Petitioner in W.P. No.23762/2013) submits that NIMHANS being the instrumentality of the State is required to act in accordance with law and provide a level playing field so as to enable persons such as the WIPRO to provide the best possible technologically advanced Scanner System to a medical institute of international repute such as the NIMHANS; the modification of the technical requirements made by NIMHANS from stage to stage was only to favour SIEMENS which is being declared successful in the technical bid; The NIMHANS has conveniently made modifications to the technical bid requirements such that they are either diluted, 11 specifications lowered or mandatory requirements have been made optional so as to solely benefit SIEMENS; The NIMHANS has introduced very major change in the machine required and has proceeded in fast track in order to award tender in favour of SIEMENS; rejection of the bid of the WIPRO without assigning reasons is bad in the eyes of law; the Scanner System of the SIEMENS is not a 3 Tesla Machine and its rating is 2.89 Tesla with an operational frequency of 123.2 MHz; whereas Scanner System of the WIPRO is a 3 Tesla machine with an operational frequency of 127.72 MHz; on this very ground, the Kerala High Court was pleased to dismiss the writ petition filed by SIEMENS challenging the tender being awarded to WIPRO; Repeated revisions to the tender is unfair and biased towards SIEMENS; NIMHANS has acted unreasonably in rejecting the technical bid of the WIPRO and it has acted in discriminative manner; by issuing Corrigendum dated 21.3.2013 to the 3rd call for tender allowed the 12 manufacturers of simultaneous as well as sequential 3T MR PET Scanner System to participate in the tender; Insofar as sequential 3T MR PET Scanner System is concerned, all the three bidders have bid for the same; however insofar as integrated simultaneous 3T MR PET Scanner System is concerned, only the SIEMENS has submitted the bid; this has lead to a situation where there is competition in sequential 3T MR PET Scanner System is concerned while at the same time they removed competition insofar as Integrated Simultaneous 3T MR PET Scanner System is concerned; the NIMHANS would have considered only Sequential Scanner System and evaluated only the technical bids of all the three bidders with respect to Sequential Scanner Systems; NIMHANS being the instrumentality of the State has a duty to ensure transparency in the public procurement so as to ensure that the institution benefits by being able to procure the intended equipment at the best possible price. 13
Sri Udaya Holla, learned senior advocate appearing on behalf of the petitioner - PHILIPS in Writ Petition No.14573/2010 reiterated almost the very grounds as were argued by Sri Naganand mentioned supra. He submits that the entire tender process carried out by NIMHANS is arbitrary, unfair and unreasonable with a view to favour SIEMENS over the petitioner; NIMHANS has been biased against PHILIPS and has therefore rejected the petitioner's technical bid; despite calling for sequential 3T MR PET Scanner System, the petitioner's bid was rejected for the reason that it had submitted its bid for a sequential 3T MR PET; that despite non-compliance on the part of SIEMENS, the technical bid of the SIEMENS has been accepted without assigning any reason therefor; the action of NIMHANS is against public and national interest; the arbitrariness on the part of NIMHANS is depicted by the fact that NIMHANS has hurried to complete the entire process within a day; the terms of the tender are tailor-made in favour of SIEMENS; 14 he further draws the attention of the Court to the allegations made by the PHILIPS in its rejoinder to the writ petition.
4. Per contra, Sri K.G. Raghavan, learned senior advocate appearing on behalf of the successful bidder, opposing the writ petitions has contended that only SIEMENS had submitted the bid pursuant to the Global Tender Notification dated 16.1.2013 issued by NIMHANS (first call); since the only bid of SIEMENS was received by NIMHANS pursuant to the Tender Notification dated 16.1.2013, NIMHANS invited the bids once again by issuing second Tender Notification dated 19.2.2013; in response to the second call, SIEMENS and WIPRO participated in the tender and submitted their bids; PHILIPS (petitioner in Writ Petition No.14573/2013) did not participate pursuant to the first and second tender notifications and consequently has no locus standi to make allegation against NIMHANS as well as SIEMENS; NIMHANS having felt that still wider 15 participation is needed for getting appropriate Scanner System, invited bids (third call) vide Tender Notification dated 16.3.2013 fixing the due date for submission of the bid on 23.3.2013; in order to have a competitive bid, Corrigendum dated 21.3.2013 was issued by NIMHANS under which NIMHANS amended the description of equipment viz., Integrated Simultaneous/Sequential 3T MR PET Scanner System and in response to the same, all the three bidders submitted their bids; the technical bids were opened on 23.3.2013 in the presence of representatives of all the bidders; thereafter a meeting was held on 24.3.2013 and in the said meeting, after evaluation and negotiations on technical bids of all the parties, NIMHANS informed the bidders that the technical bid of SIEMENS has met the criteria and the same was accepted and consequently NIMHANS informed both the petitioners that their technical bids have been rejected; NIMHANS has constituted a broad based committee of Technical Experts from within the 16 institute and from other leading institutions in the country; the purpose of such a broad based committee was to ensure that the Government funds are utilized to procure the best technology to meet the clinical requirements of the institute and to conduct whole process of procurement in a fair and transparent manner. The committee after analyzing the technical specification of the equipments of the three bidders and after discussions and negotiations with them, has found that the bid of SIEMENS meets the criteria and accepted the same; the bids of the petitioners have not complied with the technical requirements of the tender document; the system proposed to be procured is a very "Advanced Diagnostic Equipment" for diagnosis of various types of neurological diseases and to meet the clinical requirement, it is absolutely essential to meet with the tender specifications under the head "PET Specification"; He draws the attention of the Court to various deviations in the specification found in the technical 17 bids of the petitioners in response to the third and final tender call; He further submits that the experts in the field have chosen the Scanner System manufactured by SIEMENS by concluding that the Scanner System of SIEMENS is best suited for the purpose.
The arguments advanced by Mr. Raghavan are almost reiterated by Sri Madhusudan Rao, learned advocate appearing on behalf of NIMHANS. Sri Madhusudan Rao opposing the writ petitions contended that the petitioners are not entitled to any of the reliefs in view of the fact that the technical bids submitted by all the three bidders were considered by the Technical Committee consisting of the experts in the field from NIMHANS and from reputed institutions of different parts of the country and the recommendations of the Technical Committee revealed that the technical bids submitted by the petitioners were not responsive to the specifications mentioned in the tender notification and that the technical bid submitted by 18 SIEMENS was in compliance with the specifications mentioned in the tender notification. He further submits that the petitioners are guilty of suppressing the material facts and misrepresenting the facts. He has denied all the allegations made against the NIMHANS by the petitioners.
Sri Madhusudana Rao further submits that the common list of specifications was agreed upon in the meeting held on 20th and 21st October 2012 in which the Director of NIMHANS and Heads of various departments and several experts in the field from different premier institutions like All India Institute of Medical Sciences, Department of Nuclear Medicine, Indian Institute of Science etc., participated. After considering various proposals given by the bidders, certain technical requirements were also decided; in the pre-bid meeting, all the three bidders were given the fullest opportunity to putforth their presentation and the entire process was transparent and 19 consequently the specification that was drawn did not favour any particular company; the Corrigendum dated 8.2.2013 was issued only to enable broad based participation of any vendor who would be in a position to obtain a certification of either of the two internationally reputed regulatory agencies viz., FDA and CE; while the original Tender Notification required certification from both the authorities of the equipment to be supplied by the vendors, the vendor who is in a position to produce the certification by either of the two authorities also could participate in the proceedings in view of the amendment to the tender conditions; this was done only with a view to enable the level playing field for all the vendors and also to increase their participation in the bidding process; Pursuant to the notification dated 16.1.2013, NIMHANS as such received only single bid from SIEMENS; since there was only a single bid, NIMHANS decided to re-notify the tender item and as such second global tender notification dated 20 19.2.2013 was published by NIMHANS inviting bids; Pursuant to said notification dated 19.2.2013, NIMHANS has received only two bids from WIPRO and SIEMENS; after receiving such bids, the purchase committee meeting consisting of experts was convened on 15.3.2013 and in the said meeting WIPRO and SIEMENS were invited to participate and after their participation and detailed discussion and scrutiny of specifications, the expert committee concluded that neither WIPRO nor SIEMENS met the required technical specifications as notified in the tender; Thereafter the technical committee recommended certain modifications to the specifications in order to provide an opportunity for all the bidders in its meeting held on 15th and 16th March-2013; thereafter one more tender notification was issued (third call) on 16.3.2013; in the meanwhile, PHILIPS addressed letter dated 8.3.2013 wherein it requested NIMHANS to include sequential 3T MR PET Scanner System; since the Technical Committee has 21 earlier recommended for the purchase of only simultaneous integrated 3T MR PET Scanner System with the accessories, NIMHANS had to again consult the members of the Technical Committee regarding the request made by PHILIPS and also the feasibility of considering the bids in respect of sequential 3T MR PET Scanner System; the committee members suggested that even the sequential MR PET Scanner also can be included for consideration; In that regard, NIMHANS issued Corrigendum dated 21.3.2013 including even sequential 3T MR PET Scanner System also in the tender document; It is further submitted that the tender notification issued by NIMHANS makes it clear that NIMHANS has a right to accept or reject the tender without assigning any reason; the petitioners having responded to the tender notification issued by NIMHANS containing the aforesaid stipulation, cannot now question the decision of NIMHANS in accepting the technical bid of the SIEMENS and rejecting the bids of the petitioners; the bids submitted by 22 all the three bidders were considered by the Expert Committee consisting of several experts from various premier and eminent institutions all over the country; the recommendation of the Technical Committee consisting of experts have been accepted by NIMHANS and the decision is taken to accept the technical bid of SIEMENS; the decision of the NIMHANS based on the advice and opinion of the technical committee referred to above cannot be questioned by the petitioners in the Court of law inasmuch as the expert's opinion needs to be respected; the bids of the petitioners were not complying the tender conditions; the models offered by the petitioners do not satisfy the requirements of the tender conditions. One of the specification is that acquisition of the PET data and MR sequences should be simultaneous/sequential and both the modalities shall be integrated so as to achieve pixel to pixel fusion; in the bid submitted by PHILIPS, it was only stated that the equipment to be offered is integrated PET MR with 23 sequential imaging and the same does not refer to the requirement of pixel to pixel fusion; as on the date of submission of the tenders, the petitioners' equipments were not fully ready with the specification as asked for; He further draws the attention of the Court to the counter filed by NIMHANS and contends that the contentions raised by the petitioners are incorrect. On these among other grounds, he prayed for dismissal of the writ petitions.
5. Learned advocate appearing on behalf of the first respondent - NIMHANS made available the original records maintained by the Authority for the purpose of perusal of the Court. The original records are perused.
6. Before proceeding further, it is relevant to note the admitted facts, which are as under:
The NIMHANS invited Expression of Interest from prospective bidders by letter dated 23.8.2012 for "a New State of Art, Top of the line 3T MR PET MRS Scanner 24 System with latest generation gradient system". Petitioners as well as private respondents submitted their responses. The Expressions of Interest received from various bidders were opened on 14.9.2012. On 20th and 21st October 2012 pre-bid meetings were held in which all the three bidders participated. Based on the Expressions of Interest made by the bidders, common list of specifications were agreed upon in the pre-bid meeting. It is relevant to note that the meetings dated 20th and 21st October 2012 were attended not only by the Director and Registrar of the Respondent No.1 institution, but also by other Heads of various departments of Respondent No.1 institution and several other experts from different premier institutions like All India Institute of Medical Sciences, New Delhi; Department of Nuclear Medicine, SGPGIMS, Lucknow; Department of Physics, Indian Institute of Science, Bangalore as also the Head of the Department of Radiology, Manipal Hospital. All the three bidders made 25 their presentations. After considering various proposals given by the bidders, it was decided that integrated combined system with PET detector located within the MR Gantry is the equipment which should be procured and certain other technical requirements were also decided. The whole process relating to pre-bid discussion was transparent. This is clear from the letter dated 21.10.2012 written by the representative of PHILIPS to the first respondent (Annexure-R1 to Writ Petition No.14573/2013) wherein the representative of the PHILIPS has declared that the whole process was transparent and specifications do not favour any particular company. It is also mentioned in the very letter that PHILIPS had discussed the specifications in detail in presence of other potential competitors and in presence of members of the pre-bid committee.
Thereafter Tender Notification was issued on 16.1.2013 based on the recommendations of the Technical 26 Committee. Thereafter PHILIPS addressed a letter dated 21.1.2013 requesting for certain amendments to tender document including deletion of "the PET detector to be housed within the MR Magnet", which means that in addition to inviting the bid for simultaneous 3T MR PET Scanner, even sequential 3T MR PET also should be included in the tender document. Corrigendum was issued on 8.2.2013 by the first respondent whereby the words FDA(510 K), CE was to be read as FDA/CE in the tender document. The said Corrigendum was issued to enable broad based participation of any vendor who would be in a position to obtain certification of either of the aforesaid two internationally reputed regulatory agencies. FDA is a certificate issued by USA, whereas CE is a certificate issued by U.K. While the original Tender Notification required certification from both the authorities, the vendor who was in a position to produce certification from either of the two authorities also could participate in the proceedings in view 27 of the said amendment. This was obviously been done to enable the level playing field for all the vendors and also to increase their participation. It is relevant to note that inspite of such relaxation, the first tender notification dated 16.1.2013 received only a single bid from respondent No.2
- SIEMENS.
Since there was single bid, respondent - NIMHANS decided to re-notify the tender item and as such second global tender notification dated 19.2.2013 was published by the first respondent inviting the bids. Pursuant to the said notification dated 19.2.2013, only WIPRO and SIEMENS offered their bids. After receiving the aforementioned bids, the purchase committee meeting consisting of technical experts was convened on 15.3.2013. In the said meeting, WIPRO and SIEMENS were invited to participate. After detailed discussion and scrutiny of specification of the WIPRO and SIEMENS, the expert committee concluded that 28 neither WIPRO nor SIEMENS met the required technical specification as notified in the tender. The technical committee thereafter recommended certain modifications to the specification in order to provide an opportunity for all the bidders.
Thereafter one more tender notification was issued (3rd tender notification) on 16.3.2013 as produced at Annexure-D to Writ Petition No.14573/2013. In the meanwhile, PHILIPS addressed a letter on 18.3.2013 requesting the first respondent to include even sequential 3T MR PET Scanner System. Since the technical committee had earlier recommended for purchase of only simultaneous integrated 3T MR PET Scanner System with the accessories, the first respondent had to again consult the members of the technical committee regarding the request made by PHILIPS and also feasibility of considering the bids in respect of sequential 3T MR PET Scanner System. The 29 committee members agreed that even sequential MR PET Scanner also can be included for consideration. In this background, corrigendum dated 21.3.2013 was issued by the first respondent to the third tender notification dated 16.3.2013 for inclusion of sequential 3T MR PET Scanner System also in the tender document. In furtherance of the third call dated 16.3.2013 made by the first respondent and the Corrigendum dated 21.3.2013, all the three bidders participated.
The aforementioned facts are not in dispute.
7. From the above, it is clear that the changes made from time to time in the specifications of the system to be procured were mainly at the behest of the petitioners. Thus it is not open for the unsuccessful petitioners to contend that the specifications were altered only to suit the SIEMENS. Moreover the modification in respect of technical specifications were made as per the decision of the 30 technical committee consisting of experts not only from Respondent No.1 institution but also external experts hailing from different reputed institutions all over the country. It is needless to observe that the equipment to be purchased by the first respondent could be only as per the recommendations of the technical committee. Absolutely no allegations of favouritism are found in the writ petitions against any of the members of the technical committee. In the absence of allegations of favouritism against any of the individual members of the technical committee, no credence whatsoever can be given to the allegation that the specifications were altered in favour of SIEMENS.
8. The purchase committee consisted of not only the Director & Vice Chancellor of NIMHANS and other Heads of departments of NIMHANS but also various reputed external members such as (a) Head of Nuclear Medicine, AIIMS, New 31 Delhi (b) Head of Nuclear Medicine, Tata Memorial Hospital and Molecular Imaging, Mumbai (c) Consultant, RMC, Baba Atomic Research Centre, Tata Memorial Hospital, Mumbai
(d) Professor & Head of Department of Imagiology, Nizams Institute of Medical Sciences, Hyderabad etc., The purchase committee consisting of experts in the field thought it fit to relax the terms obviously in order to get more competition. It is relevant to note that the relaxation was made in the public interest, that too mainly at the behest of the petitioners.
9. It is by now well settled that on matters affecting policy and requiring technical expertise, the Court would leave the matter for decision of those who are qualified to address the issues; Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the Court will not interfere with such matters {see FEDERATION OF RAILWAY 32 OFFICERS ASSOCIATION AND OTHERS .vs. UNION OF INDIA - (2003)4 SCC 289}.
10. It is relevant to note that the first and the second tender notifications were issued by the first respondent in respect of simultaneous 3T MR PET Scanner System only. As aforementioned, PHILIPS as well as WIPRO did not choose to participate pursuant to the first tender notification, but only SIEMENS had participated. However, pursuant to the second tender notification, WIPRO and SIEMENS only had participated, PHILIPS did not participate. As aforementioned, 1st respondent decided to have third call. Even the third call was in respect of simultaneous 3T MR PET Scanner System only. However, Corrigendum was issued by the first respondent accepting the request of PHILIPS for change of specification. By virtue of the Corrigendum as aforementioned, even the sequential 3T MR PET Scanner System was also included alongwith 33 simultaneous 3T MR PET Scanner System in the tender document.
Only thereafter PHILIPS participated. It filed its bid for integrated sequential 3T MR PET Scanner system. So also WIPRO submitted its bid only for sequential 3T MR PET Scanner System (it was not for integrated model). However, SIEMENS submitted two bids i.e., one bid for integrated simultaneous 3T MR PET Scanner System and another bid for integrated sequential 3T MR PET Scanner System. It is needless to observe that neither of the petitioners did bid for integrated simultaneous 3T MR PET Scanner system.
It is relevant to note that WIPRO had bid for simultaneous 3T MR PET Scanner system pursuant to the second tender notification. However, it did not choose to submit its bid for integrated simultaneous 3T MR PET Scanner System pursuant to the third tender notification. 34
The very fact that the area was enlarged by including sequential 3T MR PET Scanner system as also by providing option to the bidders to obtain certification of either of the two internationally reputed regulatory agencies viz., FDA and CE would clearly reveal that it is not a case of exclusion, but it is a case of inclusion. The first respondent in order to have broader participation of all the three manufacturers and in order to consider all the bids submitted by the bidders, had made aforementioned changes, that too mainly at the instance of the petitioners herein. Thus this Court does not find any defect in the decision making process.
Though the tender was invited for integrated sequential/simultaneous model, WIPRO had not submitted its tender for integrated model. However, as aforementioned PHILIPS had submitted its bid pursuant to the third tender notification in respect of integrated 35 sequential model, whereas SIEMENS had submitted two bids i.e., one bid for integrated simultaneous model and another bid for integrated sequential model.
11. Sri Madhusudana Rao, learned advocate appearing on behalf of the 1st respondent has contended that reasons for rejection of the technical bid could not be furnished to the bidders as writ petition was filed by PHILIPS on 25.3.2013 i.e., on the very next day of the decision. The meeting was held on 24.3.2013 and on the very next day i.e., 25.3.2013, Writ Petition No.14573/2013 was filed by PHILIPS. Therefore this Court is of the opinion that the advocate for Respondent No.1 is justified in contending that the reasons could not be furnished to the unsuccessful bidders for rejection of their technical bid, because of the aforementioned reason.
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12. It is relevant to note that the technical bids were opened on 23.3.2013 in presence of the representatives of the bidders and the meeting was held on 24.3.2013. In the said meeting, all the three bidders were represented and their representatives made detailed presentations before the committee. After considering the technical bids of all the three bidders and the presentations made by their respective representatives and taking into account advantages and disadvantages of the equipment to be offered by the bidders, the Committee accepted the technical bid of the SIEMENS. The decision was pronounced on 24.3.2013 itself in presence of representatives of three bidders. According to the first respondent, representatives of the bidders who were present in the meeting were fully aware of the circumstances in which the technical bid of the SIEMENS was accepted and the reasons as to why the technical bids of both the petitioners were rejected. Moreover it is made 37 clear in the tender document itself that Respondent No.1 has right to accept or reject one or all the tenders without assigning any reason. The petitioner having accepted the conditions of the tender, cannot question the decision of the first respondent in accepting the technical bid of SIEMENS and rejecting the bids of the petitioners, that too when the decision is based on experts' opinion. As aforementioned, the bids were considered by the Technical Committee consisting of several experts who were drawn from various premier and eminent institutions all over the country. The technical committee on considering various aspects of the system to be procured, recommended to accept the bid of SIEMENS. The recommendation of the technical committee has been accepted by the first respondent and the decision was taken to accept the technical bid of SIEMENS.
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13. Learned advocates appearing on behalf of all the three bidders tried to point out the deficiencies in the bids submitted by other tenderers. Ultimately, the technical committee against whom no allegation is made had taken decision to purchase the integrated simultaneous 3T MR PET Scanner System in the interest of the public at large. The first respondent is a premier health and research institute in India and it caters to the needs of the patients having neurological problems. Keeping the interest of the public at large and interest of the first respondent institution, the technical committee has taken decision to purchase integrated simultaneous 3T MR PET Scanner System. As aforementioned, on matters affecting policy and requiring technical expertise, the Court would leave the matter for decision of those who are qualified to address the issues. Even if some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 of the Constitution with great 39 caution and should exercise only in furtherance of the public interest and not merely on making out a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. In the matter on hand, this Court finds that the public interest is not affected at all. On the other hand, the Experts Committee has created level playing field by enlarging the scope of the tender notification and thereafter has taken decision keeping interest of the public at large. Since the experts have taken decision to purchase a particular model, this Court cannot substitute its view treating itself as an appellate authority in such matters. The public interest cannot be jeopardized at the instance of a manufacturer who claims to have a similar product. The commercial interest of the manufacturer should yield to the greater public interest. 40 Ultimately, the interest of the public is paramount. The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. In the matter on hand, this Court does not find any of them. The public interest demands that the first respondent should purchase the best-suited model/ system, keeping in mind the interests of patients. Since experts in the field have chosen the system/model offered by SIEMENS keeping in mind the public interest, the action is neither arbitrary, discriminatory, mala fide nor actuated by bias. Law should take back seat to give way to the larger public interest. In the matter on hand, the first respondent has taken decision on the basis of the recommendation of the technical expert committee. As aforementioned, the committee consisted of number of experts in the field. Therefore it is not open for the manufacturer to contend that the decision taken by the expert committee is bad in the eyes of law. It is also not 41 open for the petitioners to contend that sequential model ought to have been preferred to the simultaneous model.
14. As can be seen from the statement of objections filed by the first respondent, it is clear that the models offered by the petitioners did not satisfy the requirement of the first respondent. One of the specifications is acquisition of the PET data and MR sequences should be simultaneous/sequential and both the modalities shall be integrated so as to achieve pixel to pixel fusion. In the bid submitted by PHILIPS it was only stated that the equipment to be offered is integrated PET MR with sequential imaging and the same does not refer to the requirement of pixel to pixel fusion. Whereas the bid submitted by WIPRO was not for integrated model, but it was only for sequential 3T MR PET Scanner System. What was needed by the first respondent was an integrated model to achieve pixel to pixel fusion.
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15. It is contended on behalf of the petitioners that the model offered by SIEMENS was of 2.89 Tesla MRI and not 3.00 Tesla MRI and whereas the model offered by the petitioners is of 3.00 Tesla MRI. In other words, the learned counsel for the petitioners argued that the models offered by the petitioners would provide more accurate result as compared to the model offered by SIEMENS. In the tender notification, the specification of 3.00 Tesla MRI is stated to be approximate and it was not specified that it is an absolute requirement. It is no doubt true that the models offered by the petitioners are of 3.00 Tesla MRI and the model offered by SIEMENS is of 2.89 Tesla MRI. Since the tender does not require that the model should have 3.00 Tesla MRI, it is not open for the petitioners to contend that the model offered by SIEMENS should be rejected. Moreover it is for the experts in the field to decide as to which of the model is suitable for the purpose for which the system is being purchased. Taking into account the various 43 technical specifications and the advantages, which were found to be in existence in the model offered by the SIEMENS, the technical committee suggested that 2.89 Tesla MRI offered by the SIEMENS is sufficient and that the same does not compromise with the quality of imaging.
16. It is relevant to note that the first respondent is not either in favour of or against any of the bidders. It is brought to the notice of the Court by the learned advocate for the first respondent that the first respondent had already purchased MR PET Scanner systems from both the petitioners at an earlier point of time. It is also submitted that the first respondent if need be may purchase the Scanner System from any of the bidders including the petitioners in future also as per law.
17. Looking to the totality of the facts and circumstances, this Court finds that the decision making process of the first respondent - NIMHANS in the matter 44 on hand is just and proper. The decision is taken in most transparent manner by the first respondent on the basis of the recommendations of the Technical Committee consisting of experts in the field not only from within the first respondent institution but also from the reputed institutions all over the country.
In view of the above, no interference is called for. Petitions fail and the same stand dismissed.
Sd/-
JUDGE Gss/-