Orissa High Court
Afr M/S. Premium Serums & Vaccines vs State Of Odisha And Others ......... ... on 27 June, 2018
Equivalent citations: AIR 2019 (NOC) 23 (ORI.), AIRONLINE 2018 ORI 297
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 355 OF 2018
In the matter of an application under Articles 226 and 227
of the Constitution of India.
-----------
AFR M/s. Premium Serums & Vaccines Pvt. Ltd. and another ........ Petitioners Versus State of Odisha and others ......... Opp. Parties For petitioners : Mr. M.R. Mohapatra, Senior Advocate, along with M/s S.Mohanty, S.K. Routray, L.Mohapatra, S.Pattnaik and A. Dash, Advocates For opp. parties : Mr. S.P. Mishra, Advocate General, along with Mr. B.P. Pradhan, Addl. Government Advocate [O.P. No.1] Mr. R.K. Mohanty, Senior Advocate, along with M/s M.R. Mohanty, A.K. Panigrahi and L.K. Behera, Advocates [O.P. No.2] M/s B.P. Tripathy, S.Kaveti, R. Acharya, T. Barik and A. Pati, Advocates [O.P. No.3] M/s Yuvraj Parekh, S. Sahoo, D.Nayak and S.K. Behera, Advocates [O.P. No.4] 2 PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HONOURABLE DR. JUSTICE B.R. SARANGI
-------------------------------------------------------------------------------- Date of hearing : 21.06.2018 :: Date of judgment:27.06.2018
-------------------------------------------------------------------------------- Dr. B.R. SARANGI, J. Odisha State Medical Corporation Limited (OSMCL)-opposite party no.2 is a Government of Odisha Enterprise. It acts as an independent agency for the department of Health and Family Welfare, Government of Odisha for timely procurement of quality medicines, surgical equipments, instruments, etc. through competitive bidding process. It is managed by a Board of Directors duly constituted by Government of Odisha. The opposite party no.2-OSMCL on 05.08.2017, vide Bid Reference No. OSMCL/2017-18/DRUGS-DHS/02, issued notice inviting online bids through e-portal from the eligible bidders for supply of drugs and medical consumables for the year 2017-18 on rate contract basis for a period of one year from the date of approval of tender. The date and time for pre-bid 3 meeting was fixed to 17.05.2017 at 11.00 AM. The online bid submission was to start from 23.08.2017 at 3.00 PM and end on 08.09.2017 at 5.00 PM. The submission of tender documents and EMD amount (as per Section-IV of tender documents) was to start from 08.09.2017 at 5.00 PM and end on 15.09.2017 at 11.00 AM. The date and time of opening of online technical bid was fixed to 15.09.2017 at 11.00 AM and, the date and time of opening of price bid was to be informed to the qualified bidders later on. But subsequently, opposite party no.2-OSMCL issued a corrigendum, vide Bid Reference No. OSMCL/2017-
18/DRUGS-DHS/02 at Annexure-3, revising the closing date for online submission of bid to 15.09.2017 at 5.00 PM, closing date and time for submission of tender documents and EMD amount (Hard Copy) as per Section-IV of tender documents to 25.09.2017 at 11.00 AM and opening date for online technical bid to 25.09.2017 at 11.00 AM.
2. Pursuant to the tender notice referred to above, petitioner no.1, along with 118 others, including M/s VINS Bioproducts Ltd.-opposite party no.3 and M/s Bharat 4 Serums and Vaccines Ltd.-opposite party no.4, submitted its tender documents through online process on 13.09.2017. On receipt, the bid of the petitioner had been enlisted at serial no.85, bidder no. 699215 in the bid list prepared by opposite party no.2. Petitioner no.1 had submitted its bid for supply of three items, namely, (1) Code No. D23002 (Injection Snake Venom Antiserum); (2) Code No. D23008 (Injection Snake Venom Antiserum); and (3) Code No. 23010 (Equine Rabies Immunoglobulin), as per tender document. At the time of submission of its bid, petitioner no.1 has wrongly put the date "14.09.2017" on bid documents, such as details of the item quoted, details of the EMD submitted, Format-T5, etc., though it has accepted online bid on "13-Sept. 2017 03.18 pm". Pursuant to the proceeding of tender evaluation committee meeting held on 11.12.2017, a communication was made by opposite party no.2 on 20.12.2017 to petitioner no.2 through his e-mail that the technical bid of petitioner no.1 has been rejected on the ground that Format-T5 (declaration form) of petitioner no.1, i.e., M/s Premium Serums & Vaccines Pvt. Ltd., 5 Mumbai was not accepted and reason for rejection has been cited under Annexure-IB vide serial no.8 which is that "the declaration form (T5) is not in order i.e. the declaration is notarized earlier than the deponents affidavit in format T5." In response to such communication, petitioner no.2, on the very same date, i.e., 20.12.2017 filed a clarification regarding document Format-T5, but the same was not taken into consideration, hence this writ application.
3. Mr. M.R. Mohapatra, learned Senior Counsel appearing along with Mr. S. Mohanty, learned counsel for the petitioners strenuously urged that even though petitioner no.2 has promptly responded by filing a representation on 20.12.2017 explaining that the Format-T5 has been notarized on "11.09.2017", but wrongly the date has been put as "14.09.2017". It is further contended that while completing the documentation, before uploading, all the documents have been given the date as it was on "14.09.2017". So in the Format-T5, which was notarized on "11.09.2017", the date of bidder has been mentioned as "14.09.2017", though the uploading was done on 6 "13.09.2017". As such, since the opposite parties have acknowledged that uploading was done on "13.09.2017", certainly Format-T5 has been notarized on "11.09.2017"
and as such there is a mistake of putting the date as
"14.09.2017". This fact has also been clarified by way of filing representation on "21.12.2017" that it is an inadvertent mistake and for that reason the technical bid of petitioner no.1 should not have been cancelled. To substantiate his submission, he has relied upon Nestor Pharmaceuticals Ltd. v. State of Odisha, 2017 (SUPP-II) OLR 818.
4. Mr. S.P. Mishra, learned Advocate General appearing along with Mr. B.P. Pradhan, learned Addl. Government Advocate contended that since there is an urgency in the matter of procurement of medicines, the same should be taken up on priority basis, as it has been stalled by virtue of the interim order passed by this Court and the State Government is facing lot of difficulties by not procuring the life saving drugs for the general public. Therefore, in the interest of public, the matter should be 7 heard and disposed of as expeditiously as possible. It is further contended that so far as award of contract is concerned, it is within the domain of opposite party no.2, which has issued such tender call notice. As such, validity of such tender and decision of rejection of the bid of petitioner no.1 can only be elucidated by opposite party no.2 and the State Government has no say in the matter, but stated that the decision taken by opposite party no.2 should not be interfered with. To substantiate his contention he has relied upon the judgment of the apex Court in Central Coalfields Limited v. SLL-SML (Joint Venture consortium), AIR 2016 SC 3814 : (2016) 8 SCC 622.
5. Mr. R.K. Mohanty, learned Senior Counsel appearing along with Mr. A.K. Panigrahi, learned counsel for opposite party no.2, justifying the order of rejection of the bid of petitioner no.1, stated that no illegality or irregularity has been committed by the authority concerned by taking such decision. He laid emphasis on the document in Format-T5, the declaration form of Part-1 of technical bid, which stipulates that the bidder has to furnish the requisite 8 information as is sought for in the said form by way of affidavit. Therefore, filing of Format-T5 is not an empty formality and as such the said form could not have been signed by the Notary anterior to the date on which authorized signatory of petitioner no.1 company executed his signature. The very document (Format-T5) manifests that it has been notarized on "11.09.2017" and authorized signatory of the petitioner no.1 company signed thereafter on "14.09.2017". Therefore, the alleged oath cannot be accepted, resulting in the T5 form as a spurious one. Therefore, the tender evaluation committee is justified in rejecting the bid of petitioner no.1 on the ground that the same was not in order, which does not warrant interference of this Court at this stage.
6. Mr. B.P. Tripathy, learned counsel for opposite party no.3 contended that the petitioner-company submitted Format-T5 document wherein the declaration submitted by it was notarized on "11.09.2017" but the date put was "14.09.2017" and the plea taken that the same was put inadvertently is an afterthought. It is further contended 9 that T5 declaration form, which is under Section-VII of the tender documents, needs to be submitted in form of an affidavit executed before the Executive Magistrate/ Notary Public on Rs.10/- non-judicial stamp paper. As the petitioner-company has not furnished the said T5 declaration form as per the required norms of the oaths and such declaration has been notarized in a fraudulent manner, the opposite party no.2 is justified in not accepting the same. More particularly, the said document is attested in absence of the deponent is tell tale and the said document is incomplete in absence of the solemn affirmation. Furthermore, the said transaction of oath has not been entered in oath register because the numbering of the affidavit has also not been reflected. Therefore, he prays for dismissal of the writ application on that ground.
7. Mr. Yuvraj Parekh, learned counsel appearing for opposite party no.4 stated that notice was issued to opposite party no.4 fixing 28.06.2018 as the date for appearance, but having come to know that the matter has been fixed to be taken up on 21.06.2018, he has appeared but could not file 10 any counter affidavit. He, however, supported the arguments advanced by opposite parties no.2 and 3 and contended that since opposite party no.4 stands on similar footing like that of opposite party no.3, the authorities are justified in rejecting the bid of petitioner no.1, therefore seeks for dismissal of the writ application.
8. Having heard learned counsel for the parties and perused the records, and as the matter is very urgent in nature, with the consent of learned counsel appearing for the respective parties, the same is being disposed of at the stage of admission.
9. For just and proper adjudication of the case, the relevant provisions of the e-tender document for supply of drugs and medical consumables for the year 2017-18 in Annexure-2 series are extracted hereunder:-
"Section-II General Definitions & Scope of Contract xx xx xx "2.1.7. Responsibility of verification of contents of Tender Document.
Bidders shall examine all instructions, forms, terms and specifications in the Tender Document 11 and verify the same mentioned in the table of contents are contained in the 'Bid document'. Failure to furnish any information required by the Tender Document and submission of an offer not substantially responsive to it in every respect shall result in the summary rejection of bids, without any notice.
SECTION-VI GENERAL CONDITIONS OF CONTRACT 6.4 Guidelines for Preparation of Bid xx xx xx 6.4.6 Bidder shall submit a declaration letter as per Format T5 signed by the bidder or the authorized representative and shall enclose it as part of the technical bid as a proof of having read and accepted the terms and conditions of the bid document.
xx xx xx 6.11 Rejection of Bids:
6.11.1 The bids shall be rejected in case the bidder fails to meet the pre-qualification criteria as specified in Clause 5.2 of Section V. 6.12 Notices xx xx xx 6.12.13 Result of the responsiveness of the technical bids and minor infirmities/clarifications sought.
xx xx xx 6.17 List of Documents in Bid Submission xx xx xx 6.17.7 Format -T5 (Declaration Form) 12 Format-T5 (To be submitted in Part-I Technical Bid) (In terms of Cl. No. 5.2 and 6.39.8 of Bid Document) DECLARATION FORM (Affidavit before Executive Magistrate/Notary Public on 10 Rupees non-judicial stamp paper)"
10. In compliance of the aforementioned provisions and satisfying the conditions stipulated in the e-tender documents, the petitioner no.1 submitted its bid and as required in Format-T3, it has submitted details of the EMD in respect of three items, such as, (1) D23002 [Inj. Snake Venom Antiserum (Polyvalent) with diluents 10 ml/Via (Lyphillised, Powder form)], (2) D23008 [Inj. Snake Venom Antiserum (polyvalent) 10 ml./vial (liquid form)], and (3) D23010 [Equine Rabies Immunoglobulin 1500 IU/5 ml (Rabies Immunoserum)]. So far as Format-T5 (the declaration form) is concerned, though Notary has signed on "11.09.2017", but the date has been put by the bidder as "14.09.2017" and uploaded on 13.09.2017. Thereafter, on 20.12.2017 at 4.44 PM, the petitioner no.1 was informed that its bid for the tender in question has been rejected during technical evaluation by the duly constituted 13 committee for the reasons indicated in Annexure-IB. The proceedings of the tender evaluation committee meeting was held on 11.12.2017 at 11.00 AM in the Tender Conference Hall of OSMC, Bhubaneswar regarding evaluation of technical bids for the procurement and supply of drugs and consumables (Group-I) on rate contract basis for the financial year 2017-18. During evaluation of technical bid, it has been stated as follows:
"The submitted T-5 declaration form was scrutinized by HR and Admin Division. The details of the scrutinizing reports were placed before the Technical Evaluation Committee basing upon which clarification notices were issued to the firms. In this regard, the opinion of Legal Advisor, OSMC has also been obtained. The committee after thread bare discussion unanimously decided to accept the T-5 declaration form of all the technically qualified bidders as the defects pointed out in other cases were peripheral in nature, except in case of one firm i.e. M/s. Premium Serums & Vaccines Pvt. Ltd., Mumbai which was not accepted." (emphasis supplied) The decision taken in the said meeting is reproduced hereunder:-
"Decision Taken :
Based on above evaluation the committee has recommended to open the price bids of the technically qualified bidders (for the items for which they are technically qualified) as mentioned at Annexure-ID on Dt.14
21/12/2017 at 11:00 AM, with intimation to the qualified bidders through e-tender portal"
In the list of firms rejected during technical evaluation for the tender of drugs and medical consumables (Gr-I) 2017-18 at Annexure-IB at serial no. 8 the reason for rejection of petitioner no.1 has been mentioned as follows:
"The declaration form (T5) is not in order i.e. the declaration is notarized earlier than the deponents affidavit in format T5."
Immediately on the very same date, i.e., on 20.12.2017, the petitioner no.2 made representation and on 21.12.2017 again a representation was filed, enclosing letter from the Notary confirming that the notarization has happened as per the system.
11. The sequence of the events as mentioned above, clearly indicate that Format-T5 document has been notarized on "11.09.2017", but the date has been put by the bidder as "14.09.2017". However, there is no doubt with regard to factum that on the basis of the tender summary report dated 30.12.2017 in Annexure-4, the petitioner no.1 had submitted its documents on "13.09.2017 at 3.18 pm", 15 but its technical bid has been rejected and status has been updated on 20.12.2017 at 4.40 pm. The relevant information available in Annexure-4 is quoted below:-
Sl. Bidder Bidder Submitted Status Status No. Number Name Date Updated on xx xx xx xx xx xx
85. 699215 Premium 13-Sep- Rejected- 20-Dec-
Serums and 2017 Technical 2017
Vaccines 03:18 PM 04.40
Private PM
Limited
xx xx xx xx xx xx
Once the bid document has been received by opposite party no.2 on "13.09.2017 at 3.18 PM", the question of putting of date "14.09.2017" by the bidder in the Format-T5 document may not be said to be done after Notary has notarized on "11.09.2017". It may be a mistake on the part of the bidder by putting the date "14.09.2017" when receipt of documents had already been acknowledged by the authority on "13.09.2017 at 3.18 PM". As per the proceedings of the tender evaluation committee under Annexure-6 series, the details of the scrutinizing reports were placed before the technical evaluation committee basing upon which clarification notices were issued to the petitioner no.1 and 16 subsequently, it has been stated that the opinion of the legal adviser of the OSMC has also been obtained. The committee, after thread bare discussion, unanimously decided to accept the T-5 declaration form of all the technically qualified bidders, as the defects pointed out in other cases were peripheral in nature, except in case of M/s. Premium Serum & Vaccines Pvt. Ltd., Mumbai (petitioner no.1 herein) which was not accepted.
12. Considering the urgency of the matter, when it was heard on 20.06.2018, in order to find out the factum that how the committee, after thread bare discussion, unanimously decided to accept the T-5 declaration form of all the technically qualified bidders, as the defects pointed out in other cases were peripheral in nature, except the petitioner no.1, to examine the same this Court directed the learned counsel appearing for opposite party no.2 to place the relevant record before the Court on 21.06.2018. In compliance of the same, records were produced before this Court to examine the factum of acceptance of T-5 declaration form of all the technically qualified bidders, as 17 the defects pointed out in other cases were peripheral in nature.
13. This Court perused the list of firms rejected in Technical Evaluation for the Tender of Drugs & Medical Consumables (GR-I) 2017-18. On sample testing of the list of firms rejected in Technical Evaluation, this Court examined the tenders submitted by 119 bidders and sporadic examination in respect of the firms at serial no. 11, 15, 18, 19, 20, 23, 24, 25, 26, 55, 57, 61, 62, 67, 74, 85, 89, 90, 97, 98 were taken into consideration and found that even if the date of notary sign is missing, the declaration submitted in Format- T5 of tender document has been accepted and in some cases even where it is not in regular non judicial stamp paper, as required by the tender document, still the same has been considered. This material omission and commission, so far it relates to Format-T5, has been ignored and the said documents have been accepted by the technical evaluation committee, whereas in respect of petitioner no.1 there is error in putting the date correctly, on that ground it has been rejected. 18
14. As per the proceedings of the tender evaluation committee, the clarification notice would have been issued to the petitioner no.1-company so as to give an opportunity to clarify the same before rejecting its T5 declaration form. If on the plea of peripheral in nature, the defective T5 declaration forms of other bidders have been accepted, there is no valid justifiable reason not to accept the T5 declaration form of petitioner no.1. More particularly, the tender evaluation committee, while accepting the T5 declaration form of other tenderers stating that the defects pointed out being a peripheral in nature, the declaration form of petitioner no.1 has not been accepted and as such the bid of the petitioner has been rejected on the ground that its declaration Format T5 was not in order, that is to say the declaration T5 form of petitioner no.1 was notarized earlier than the deponent's affidavit in Format-T5. This ground of rejection is absolutely presumptive one, inasmuch as the contention raised that Format-T5 submitted by the petitioner is a spurious document, that inference cannot be drawn at this stage merely on the ground that the bidder 19 signature date has been put as "14.09.2017" and the Notary has singed on "11.09.2017". But it is admitted fact of the parties that the petitioner no.1 has submitted documents on "13.09.2017", receipt of which has been acknowledged at 3.18 P.M. Therefore, if the tender documents have been received by the authority concerned on "13.09.2017 at 3.18 hours", such presumption that the bidder has singed on 14.09.2017 may not be a correct approach, rather, the date put may a mistake on the part of the bidder in the T5 declaration form.
15. If major mistakes committed by other bidders have been ignored on the plea that the defects pointed out were peripheral in nature and if on examination of all records, this Court finds that there were gross mistakes which have been ignored on peripheral grounds, the reason for which the bid of petitioner no.1 has not been accepted cannot sustain in the eye of law. As such, it clearly appears that the date so available in the Format- T5 may be a bona fide mistake, as the bid documents were admittedly submitted on "13.09.2017".
20
16. In Nestor Pharmaceuticals Ltd. (supra) relying upon the judgments of the apex Court in M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works and others, (1991) 3 SCC 273 : AIR 1991 SC 1579; Rashmi Metaliks Ltd. Kolkata Metropolitan Development Authority, 2013 (6) Supreme 521; and B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and others (2006) 11 SCC 548, this Court held that the deviation, if any, from the tender conditions could not be classified as that of an essential condition of the tender document, and is only to be treated as merely ancillary or subsidiary with the main object to be achieved by the condition.
17. In Central Coalfields Limited (supra), on which reliance was placed by the learned Advocate General, it has been held inter alia that whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders. However, if the term is held by the 21 employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.
18. The principle laid down by the apex Court, as mentioned above, there is dispute to the extent indicated, but such principle should be applicable equally to all the bidders which participated in the bid itself. The authority cannot and could not act arbitrarily, unreasonably and discriminatorily in the matter of awarding contract in favour of certain parties after ignoring similar, or may be more vital, shortcomings in cases of others and not giving the same benefit to the petitioner.
19. Applying the said principle to the present context, on perusal of the records, it appears that in the name of defect, in respect of other bidders, being peripheral in 22 nature, their bids have been accepted, whereas on the ground of putting a wrong date in the Format-T5, the bid of the petitioner has been rejected and it has been ousted from participating in the bids, when similarly situated persons have been allowed to participate. This action of the authority amounts to arbitrary, unreasonable and discriminatory treatment made against the petitioner, and thereby, it violates Article 14 of the Constitution of India.
20. In view of such position, we are of the considered opinion that instead of rejecting the bid of petitioner no.1 on the ground of submission of defective T5 declaration form by putting a wrong date as "14.09.2017" by the bidder when document has been submitted as "13.09.2017" at 3.18 PM"
cannot be held to be justified. Therefore, we direct that the technical bid documents of petitioner no.1 should be taken into consideration at par with similarly situated bidders, whose bids have been accepted by holding that defects pointed out were peripheral in nature. As petitioner no.1 stands on the same footing with the other bidders, whose technical bids having defects have been accepted, there is 23 no justifiable reason to reject the bid of petitioner no.1 and oust it from the competition, as it is the prime objective of the opposite party no.2 to get best price and best commodity as per the competitive bid issued by it. Therefore, the decision taken, so far it relates to the petitioner no.1, by tender evaluation committee dated 11.12.2017 communicated on 20.12.2017 in Annexure-6 series, is hereby quashed. The opposite party no.2 is directed to consider the bid documents of petitioner no.1 treating its T5 declaration form as coming within the ambit and scope of "defect of peripheral in nature" and allow its bid along with other bidders in the technical bid. Considering the urgency in the matter, this Court directs that the opposite party no.2 shall take steps as expeditiously as possible, preferably within a period of two weeks hence, in the interest of public at large.
21. The writ petition is allowed to the extent indicated above. No order to costs.
24
22. The original file received pursuant to order dated 20.06.2018 shall be returned to the counsel appearing for opposite party no.2 after pronouncement of the judgment.
Sd/-
(VINEET SARAN) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 27th June, 2018, GDS/Ajaya True Copy Sr. Steno