Bombay High Court
Premal Shankarlal Mehta vs The Additional Director Central ... on 10 April, 2023
Author: Sandeep V. Marne
Bench: S.V. Gangapurwala, Sandeep V. Marne
2023:BHC-OS:2723-DB
18.9328.23-wpl.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 9328 OF 2023
Premal Shankarlal Mehta ..... Petitioner
Vs.
The Additional Director General,
Government Health Scheme, Mumbai ..... Respondents
Mr. Saleel Borwandkar for the Petitioner
Dr. Uday Warunjikar with Jenish Jain for the Union of India
CORAM: S.V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE,J.
DATED : APRIL 10, 2023 P.C.
1. Respondent No.1 had floated tender on 1st February 2023 for supply of medicines and drugs to Central Government Health Schemes. The technical and financial bids were opened. The Petitioner was L1.
2. The learned Counsel for the Petitioner submits that there was no need to cancel the tender process. The Petitioner was declared as L1. The entire process of technical evaluation was carried out by verifying the documents and also on the field. The learned Counsel Basavraj 1/5 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 14:29:07 ::: 18.9328.23-wpl.docx submits that as per the General Financial Rules 2017 the rejection of the bid is justified only when effective competition is lacking or all bids and proposals are not substantially responsive to the requirements of the procurement documents, or the bids / proposals prices are substantially higher than the updated cost estimate or available budget or none of the technical proposals meet the minimum technical qualifying score. According to the learned Counsel, none of these reasons are available for cancelling the tender process. The tender process has been cancelled in arbitrary manner. It is further submitted that 21 days are available for processing the tender from the date of advertisement. The said date can also be extended. The Respondents, without waiting for the same, have abruptly issued the fresh tender. According to the learned Counsel, as per clause 7.5.11 of the Manual for Procurement of Goods, in case where responsive bids are available the aim should be to finalise the tender by taking mitigating measures. According to the learned Counsel, the tender process cannot be cancelled in arbitrary manner and retender cannot be resorted to as a matter of course. The retender would be prejudicial to the interest of the Basavraj 2/5 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 14:29:07 ::: 18.9328.23-wpl.docx Petitioner. The financial bids were opened. The rates were disclosed. According to the learned Counsel, as the process was completed, the said tender process ought not to have been cancelled.
3. We have heard Dr.Warunjikar, the learned Counsel for the Union of India.
4. The cancellation of the earlier tender process was challenged by bidders who were L4 and L5 in the earlier tender process by filing Writ Petition (L) No.8894 of 2023. The present Petitioner was Respondent No.3 in the said matter and was represented. This Court, under order dated 31st March 2023 dismissed the said Writ Petition.
5. We had observed that now pre-bid meetings have been held on 24th March 2023 and 27th March 2023. It has been clarified that as per the previous tender documents, MSE certificate in the form of UAM alone was considered, which resulted in many eligible MSE bidders being considered as non MSE by the evaluation committee. It was informed in the said meeting that the clarification regarding correction of MSE status was sought from GEM Category Manager, as there was no option on the GEM portal to Basavraj 3/5 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 14:29:07 ::: 18.9328.23-wpl.docx accord the MSE status after the opening of 2/26 schedules for financial evaluation. To provide a fair opportunity to all the bidders and as per the instructions from GeM, the bid was cancelled and tendering was done again. All the schedules of the previous tender stands cancelled. The queries which were raised in the pre bid meeting were clarified, which are as under:
Clarification was asked by the It was clarified that MSE bidders whether only MSE certificate in the form of certificate in the form of UAM shall Udhyam registration shall be accepted as they are not able to also be considered as valid generate UAM now. for obtaining benefits of MSE.
Whether the rates are separate for The discount is not generic and branded drugs? separate for generic or branded drugs and is the same for both Whether it is mandatory to supply The medicines which are medicines in the same brand only? prescribed in brand name shall be supplied in the same brand only and shall not be substituted. Penalty shall be imposed for each instance of substitution.
6. In the said judgment and order, we have also observed that no rights have been crystalized in favour of the Petitioner who was Respondent No.3 in the said Writ Petition. No work order was ever issued nor any one was declared as a successful bidder.
7. Act of Respondent Nos.1 and 2 does not smack Basavraj 4/5 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 14:29:07 ::: 18.9328.23-wpl.docx of mala fide or arbitrariness. The reasons are given for cancellation of the tender process. Fresh tender process has been initiated.
8. The Petitioner has also participated in the fresh tender process by filling in his bid on 3 rd April 2023. After submitting his bid in the new tender process, the Petitioner is assailing the cancellation of old tender process.
9. It appears that to provide fair opportunity to all the bidders and as per the instructions from GeM, the bid was cacnelled and fresh tender was issued again. In the earlier tender process, there was no option on the GEM portal to accord the MSME status after opening of 2/26 schedules for financial evaluation and because of that some MSMEs could not have participated in the said tender process.
10. In light of the above, no case for interference is made out. The Writ Petition, as such, is disposed of. No costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE) Basavraj 5/5 ::: Uploaded on - 12/04/2023 ::: Downloaded on - 12/04/2023 14:29:07 :::