Chattisgarh High Court
Renuka Diagnostics vs National Thermal Power Corporation ... on 15 December, 2022
Bench: Arup Kumar Goswami, Sanjay Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH BILASPUR
Writ Petition (C) No.3551 of 2022
Renuka Diagnostics, Through its Partner Amit Kumar
Mishra, S/o S.P. Mishra, age about 38 years, Mahima Vihar,
Ring Road No.2, Bilaspur, District Bilaspur, Chhattisgarh
---- Petitioner
Versus
1. National Thermal Power Corporation Limited, Through The
Chief Managing Director, R/o NTPC Bhawan, SCOPE
Complex, 7, Industrial Area, Lodhi Road, New Delhi, PIN
110003
2. DGM/AGM (Contract and Materials), NTPC Limited, Unified
Service Centre, Central Procurement Group-1, Western
Region-II, Head Quarter, Plot No.87, Sector-24, Atal Nagar,
Nava Raipur, District Raipur, Chhattisgarh, PIN 492018
3. Thyrocare Technologies Limited, Through Its Partners
Dharmil Seth & Dhaval Shah, R/o D 37/1, OPP SANDOZ,
TTC Industrial Area, MIDC Industrial Area, TURBHE, Navi
Mumbai, Maharashtra, PIN 400703
---- Respondents
(Cause-title taken from Case Information System) For Petitioner : Mr. Prateek Sharma, Advocate For Respondents No.1 & 2 : Mr. Prafull N. Bharat, Senior Advocate assisted by Mr. B.D. Guru, Advocate For Respondent No.3 : Ms. Nidhi Agrawal, Advocate Date of hearing : 22.11.2022 Date of order : 15.12.2022 2 Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Sanjay Agrawal, Judge C A V Order Per Arup Kumar Goswami, Chief Justice Heard Mr. Prateek Sharma, learned counsel for the petitioner. Also heard Mr. Prafull N. Bharat, learned senior counsel assisted by Mr. B.D. Guru, learned counsel, appearing for respondents No.1 and 2 and Ms. Nidhi Agrawal, learned counsel appearing for respondent No.3.
2. Respondent No.2, DGM/AGM (Contract and Materials), National Thermal Power Corporation ('NTPC') Limited, Unified Service Centre, Central Procurement Group-1, Western Region-II Head Quarter had issued online bids for empanelment / rate contract of pathology services for NTPC Seepat Hospital (domestic competitive bidding) being Notice Inviting Tender ('NIT') dated 07.06.2022. By the said NIT, online bids were invited in Single Stage Two Envelope Bidding basis (Envelope - I : Techno-commercial bid and Envelope - II : Price bid) from eligible bidders. The estimated cost was indicated as Rs.128.17 Lacs excluding GST. The contract was for 24 months.
3. The petitioner, which is a partnership firm, had participated in the said NIT. In the writ petition as was originally filed, the petitioner called into question the order dated 04.08.2022, which was sent through e-mail, by which it was communicated that the tender of the 3 petitioner was rejected. By the said e-mail, the petitioner was advised to contact the Technical Evaluation Team in case of requirement of any clarification or feedback. Prayer was also made to restrain the respondents from going ahead with opening of the financial bid of respondent No.3, namely, Thyrocare Technologies Limited and also to direct the respondents to open the bid of the petitioner treating it to be eligible and qualified.
4. Subsequently, by an order dated 08.08.2022 issued by respondent No.2, contract work was awarded to respondent No.3. Consequently, the writ petition was amended and the order dated 08.08.2022 was also put to challenge.
5. It is pleaded that respondent No.3 is also not eligible as it does not have any registered laboratory in the State of Chhattisgarh under the provisions of Chhattisgarh State Upcharyagriha Grih Tatha Rogopachar Sambandhi Sthapanaya Anugyapan Adhiniyam, 2010, for short, 'Act of 2010', with National Accreditation Board for Testing and Calibration Laboratories ('NABL') or National Accreditation Board for Hospitals and Healthcare Providers ('NABH') certificate.
6. It is pleaded that there were three bidders including the petitioner and respondent No.3 and when the bids were opened on 07.07.2022, the petitioner could not see the documents of respondent No.3 and the petitioner was also not informed regarding opening of techno-commercial bid, and therefore, the tender process was not a fair and transparent process. It is stated that as respondent No.3 had 4 no NABL / NABH certified laboratory in the State of Chhattisgarh, therefore, for testing, samples would have to be sent to Navi Mumbai, which virtually amounts to playing with the health of the workers. It is also stated that though the contract was for pathology services, 90% work relates to Occupational Health Centre (OHC), which is required to be set up under the Factories Act, 1948.
7. Before the stand taken by the respondents in their replies are taken note of, since the primary issue that is required to be considered is as to whether the techno-commercial bid of the petitioner was arbitrarily rejected despite the petitioner fulfilling the criteria and as to whether the work order was issued to respondent No.3 without it meeting the technical criteria, it will be apt, at this juncture, to take note of the qualifying requirement for the bidders, which is laid down in Clause 5 of the NIT.
8. Clause 5 of the NIT is under the heading of "Qualifying Requirements for Bidders" and since the issue relates to technical criteria, Clause 1.1 dealing with technical criteria is reproduced hereinbelow :
"1.1 The bidder should have National Accreditation Board for Testing and Calibration Laboratories ('NABL') or National Accreditation Board for Hospitals and Healthcare Providers ('NABH') accredited laboratories providing "pathology services" / Diagnostics / "Laboratory Tests" as on 5 the date of Techno-Commercial bid opening."
9. Respondent No.3, in its reply, has stated that the company is ISO certified with 9001:2008 certification. As on March 31, 2022, it has a network of about 1500 active channel partners and more than 9000 collection points, comprising over more than 500 districts covering all States in India. It had obtained Shop Establishment Certificate, Trade License Certificate and approval from Pollution Control Board and is successfully running a pathology lab since March, 2022 in Raipur, Chhattisgarh. There was no criteria in the NIT for the bidder to have a registered laboratory in the State of Chhattisgarh or to have any registration under the Act of 2010. It is stated that Clause 21.0 provided that two representatives could be present at the time of opening of the bid and if the petitioner had not remained present at the time of bid opening, no fault can be attributed to the respondents.
10. Respondents No.1 and 2, in their reply, have stated that NTPC is a Maharatna Public Sector Undertaking of Government of India. Bidding was done online through portal of "Government eProcurement System managed by National Informatics Centre", for short, 'GePNIC', which conducts all stages of procurement process in transparent manner. It is stated that in order to provide high quality and competent medical care services to the employees and contract workers and in line with guidelines of the Central Government Health Scheme, Government of India, accreditation certificate for NABL / NABH was prescribed as minimum qualifying requirement, which is not State 6 Specific but is awarded / accredited on the Standard Quality of Testing and Laboratory. The term of the petitioner, who was earlier awarded work order for providing pathology services to NTPC on "limited tender basis", was over and as the petitioner did not have NABL certification, the tender of the petitioner was rightly rejected. The petitioner had applied for NABL certification on 05.07.2022, i.e, two days before techno-commercial bid opening. The petitioner despite knowing that it was ineligible to bid, had submitted its tender. It is further stated that NTPC had its own ful-fledged hospital at its own township of Seepat Super Thermal Power Station, which is registered under the Act of 2010 where the NTPC conducts pre-employment check-ups and rest of the tests of the OHC. Only blood sample collection is to be done at Health Centre of NTPC at Seepat with proper pre-processing and maintaining proper cold chain depending upon the test to be done so that the samples reach Medical Laboratory of the agency in proper condition for testing. The agency has to take care of the logistical aspects. It is stated that it is not necessary that the agency should have a laboratory in Chhattisgarh. The testing can be done in a Medical Laboratory of the agency with NABL / NABH Accreditation certification anywhere in India. The stipulation in the NIT was that test report should be delivered to the NTPC by the next working day. The Act of 2010 is applicable only if the testing agency is situated in the State of Chhattisgarh. The allegations of lack of transparency in the tendering process is denied.
11. By another reply dated 02.11.2022, respondents No.1 and 2 7 stated that the work was already started by respondent No.3 from 21.10.2022. How the samples are collected and tested is delineated in the aforesaid reply.
12. Respondent No.3 had also filed an affidavit on 03.11.2022 stating that from 21.10.2022 it had started providing pathological services, detailing therein logistical aspects while carrying out the pathology services. It is stated that total time taken from sample collection to report generation at Navi Mumbai Laboratory is around 20 hours. It is further stated that it has to incur additional logistics cost of only Rs.10,000/- per month for sample collection at NTPC Seepat and transporting it to Raipur because respondent No.3 has various other pre-existing clients across Chhattisgarh whose samples are already being sent to the Navi Mumbai Laboratory for testing and reporting on a daily basis. It is further stated that it had also applied for NABL / NABH accreditation for its Raipur Laboratory.
13. The petitioner has also filed an affidavit on 03.11.2022 stating that Serum and EDTA are being separated using Centrifuge machine at NTPC Seepat project, which is a lab procedure and the same ought to be done in a duly recognized and licensed pathology lab with NABL/ NABH certification and as the respondent No.3 is not having such pathology lab with NABL/NABH Certification in Chhattisgarh, respondent No.3 is not eligible in terms of the NIT. It is also stated that as respondent No.3 is neither having any experience of OHC work nor having any facility of examination at its lab in Mumbai, respondent 8 No.3 is not eligible. It is further stated that the logistical chart produced by the respondents goes to show that transportation of samples from Seepat to Navi Mumbai makes the entire system of collection of sample and testing unworkable.
14. Another affidavit is filed on behalf of respondent No.3 on 20.11.2022 stating that tests were carried out every single day without any transportation and logistical problem and every single test result was provided within 18-20 hours from the time of collection. It is also stated that the logistics provider M/s Excellent Logistic Solution will provide alternate transport support, whenever necessary, so that results can be provided within 24 hours of collection.
15. Abiding by the stand taken in the pleadings, Mr. Prateek Sharma, learned counsel for the petitioner has contended that in absence of NABL / NABH laboratory in the State of Chhattisgarh, respondent No.3 did not meet the technical criteria. That apart, respondent No.3 is not registered under the Act of 2010. It is submitted that only to deprive local diagnostic laboratories from participating in the NIT, requirement of NABL / NABH certification was incorporated in the NIT. He seeks to highlight that the transportation of samples from Seepat to Navi Mumbai is a logistical nightmare and by issuing the work order to an entity like respondent No.3, respondents No.1 and 2 have sacrificed the interest of their workers and employees. It is further submitted that the petitioner had submitted NABL registration certificate, and therefore, rejection of the bid of the petitioner is illegal 9 and arbitrary.
16. Mr. Prafull N. Bharat, learned senior counsel, appearing for respondents No.1 and 2 submits that on the own showing of the petitioner, the petitioner was an ineligible bidder, and therefore, the petitioner has no right to question the work order issued to respondent No.3 and the writ petition is liable to be dismissed summarily. He has submitted that respondent No.3 conforms to the tender requirement as laid down in technical criteria and there was no illegality in granting work order in favour of respondent No.3. He has copiously referred to the pleadings to submit that there is no doubt that respondent No.3 is an eligible bidder.
17. Ms. Nidhi Agrawal, learned counsel, appearing for respondent No.3, adopted the submission of Mr. Bharat.
18. We have considered the submissions of the learned counsel for the parties and have perused the materials on record.
19. There are 816 employees (761 male and 55 female) and 2777 workers (2678 male and 99 female) of contractors working in NTPC Seepat Project.
20. In the writ petition, the petitioner has stated that NABL / NABH accreditation is granted in three stages, namely, (i) Registration; (ii) Entry Level Certificate; and (iii) Final Certification.
21. At paragraph-8.13, the petitioner had stated that it has submitted NABL registration. It is evident that it has not been granted 10 Final Certification, and therefore, the petitioner is clearly not eligible in terms of the NIT.
22. Materials on record demonstrate that there are 17 NABL laboratories in the State of Chhattisgarh, but it appears that none of them applied in response to the NIT. Thus, the argument of Mr.Sharma that the requirement of NABL/NABH accreditation certificate was introduced only to deprive the local laboratories has no legs to stand.
23. A close look at Clause 5.1.1 goes to show that all that is said in the aforesaid Clause is that the bidder should have NABL/NABH accredited laboratories providing pathology services / diagnostics / laboratory tests as on the date of Techno-Commercial bid opening. Respondent No.3 has such accredited laboratory at Navi Mumbai.
24. Clause 5.1.1 does not prescribe that such laboratory has to be located in the State of Chhattisgarh. It is also seen from the materials on record that respondent No.3 has a pathology lab at Raipur though the same is not accredited with NABL / NABH certification. However, in absence of any requirement in the NIT that NABL / NABH laboratory has to be in the State of Chhattisgarh, the contention of the petitioner that respondent No.3 is ineligible, has to be rejected. There is also no requirement under the NIT that the intending tender has to be registered under the Act of 2010. When the testing of samples is, admittedly, done in NABL/NABH certified laboratory, merely because serum and EDTA is separated at NTPC Seepat after collection of 11 samples, it cannot be said that respondent No.3 did not meet the technical eligibility criteria for not having NABL/NABH accredited laboratory in the State of Chhattisgarh.
25. This Court will not go into the logistical issue that is sought to be highlighted by the petitioner regarding transportation of samples to Navi Mumbai in the face of the averments made that test reports are routinely given within a period of 24 hours in terms of the scope of work under the NIT.
26. In Michigan Rubber v. State of Karnataka, reported in (2012) 8 SCC 216, it was laid down that in the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities. Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted.
27. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another, reported in (2016) 16 SCC 818, the Hon'ble Supreme Court held that interference in accepting or rejecting the bid is permissible only if the decision-making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision.
28. In Tata Cellular v. Union of India, reported in (1994) 5 SCC 651, the Hon'ble Supreme Court held that the terms of the invitation of the tender cannot be open to judicial scrutiny because invitation of 12 tender is in the realm of contract. It is laid down that decision to accept the tender or award contract must not only be tested by the application of Wednesbury principle of reasonableness, but the same must be free from arbitrariness not affected by bias or actuated by malafides.
29. On consideration of materials on record, we do not find that the action of the respondents No.1 and 2 is arbitrary and that decision to award the work in favour of respondent No.3 is actuated by malice or bias. The respondents No.1 and 2, in our considered opinion, has award the work in terms of the stipulation in the NIT and the decision to award such contract cannot be said to be unjustified or unwarranted.
30. In view of the above discussions, we find no merit in the writ petition, and accordingly, the same is dismissed.
Sd/- Sd/-
(Arup Kumar Goswami) (Sanjay Agrawal)
Chief Justice Judge
Anu