Madhya Pradesh High Court
Omega Elevators vs National Health Mission on 16 August, 2018
Equivalent citations: AIRONLINE 2018 MP 735
1
WP-12880-2018
THE HIGH COURT OF MADHYA PRADESH
WP-12880-2018
(OMEGA ELEVATORS VS NATIONAL HEALTH MISSION)
JABALPUR, DATED: 16-08-2018
Shri Bhargav Hasurkar, Advocate for the petitioner.
Shri B.D. Singh, Government Advocate for the respondents.
Shri Kapil Duggal, Advocate for the proposed intervener.
1. The challenge in the present writ petition is to the tender notice published on behalf of National Health Mission (NHM), Madhya Pradesh on 02.06.2018 inviting tenders for installation of Lift/Elevator in 11 District Hospitals of Madhya Pradesh under the said Mission.
2. Along with the tender documents, a tenderer has to submit a bill of quantity (BOQ) for providing Lift/Elevator at various District Hospitals of Madhya Pradesh. The relevant condition reads as under :
"Supplying, Installation, testing, commissioning, putting into operation and final testing of automatic lift complete in the shoft well and pit constructed already as per CPWD specifications including automatic rescue device (ARD), all standard equipments, accessories and control equipments as per manufactures design and as per CPWD specifications (Part III Lifts) on turn key basis, confirming to NBC/statutory norms and fulfilling following requirements (Make : Schindler, Mitsubishi, Otis, Johnson, Thyssenkrupp)."
(Emphasis supplied)
3. The argument of the petitioner is that there cannot be any manufacturer specific condition that Lift/Elevator manufactured by 2 WP-12880-2018 the specific manufacturer alone would be considered. It is contended that the petitioner is 'A' Class electrical licensee and holds PWD Registration with the State Government, but the petitioner is not a manufacturer or supplier of Lift/Elevator as specified in the tender document, but is manufacturing OMEGA Elevators. It is further contended that such Elevators satisfy all the technical conditions warranted by the respondents in the Notice Inviting Tender but for the fact that the tender document is manufacturer specific. Such tender condition is illegal. It is not providing a level playing field to all the manufacturers in the area of providing Lift/Elevator.
4. On the other hand, the argument of Shri B.D. Singh, learned counsel appearing for the respondent/National Health Mission is that present writ petition is not maintainable as the petitioner has not downloaded the tender form from the Website. Therefore, the writ petition is liable to be dismissed on this ground alone. It is also contended that the said respondent has deleted the condition of manufacturer in the general notice, though it is decided that the bids will be evaluated as per norms of PWD of State Government which is again a manufacturer specific condition as is mentioned in the Notice Inviting Tender. The corrigendum reads as under :
Amendment No.6 "In tender no.3432 to 3441 category of contractor are 3 WP-12880-2018 amended as centralized P.W.D. registration with electric licence form [sic] M.P. Licencing Bord [sic] in place of manufacturer or authorised dealers of manufacturers.
The make of Lifts exhibited below the nomilictore [sic] of item are hereby deleted. In special condition of N.I.T. make of Lifts are as approved by P.W.D (PIU) is added."
5. We find that the National Health Mission is introducing the clause of specific manufacturers indirectly by deleting the specific condition in the NIT but to introduce a clause that the make of Lift shall be as are approved by PWD (PIU).
6. The clause of manufacturer specific as reproduced above is from MPPWD (PIU) Schedule of Rates as amended on 22.02.2017. Therefore, the condition that Lift/Elevator has to be of a particular manufacturer has not been done away with.
7. We do not find any merit in the objection that the petitioner has not purchased the tender form; hence, the writ petition is not tenable. The fact is that even after downloading the tender form on payment of requisite fee, the petitioner is still not eligible to participate in the tender process as it is not a manufacturer of specific make of Lift/Elevator. Therefore, the failure to download tender form by the petitioner cannot be a ground on which the writ petition can be said to be not maintainable.
8. In view of the above, we find that the condition that the certain 4 WP-12880-2018 specific manufacturers or the distributors of such manufacture alone would participate in the tender process is arbitrary and does not provide a level playing field to all the manufacturers. Consequently, such condition is set aside.
9. As a consequence thereof, the respondents are directed to invite fresh bids after removing the condition of manufacturer specific in the Notice Inviting Tender or relying upon the manufacturer specific condition as approved by P.W.D.
10. The petition is disposed of in above terms.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
vinod
Digitally signed by VINOD VISHWAKARMA
Date: 2018.08.17 14:30:39 +05'30'