Bafna Healthcare Pvt Limited Through ... vs Health on 19 January, 2017

[Cites 8, Cited by 0]

Jharkhand High Court

Bafna Healthcare Pvt Limited Through ... vs Health on 19 January, 2017

2. Both petitioner and the Respondent No. 3 have qualified the technical bid in the NIT bearing no. SRCH/Nam/113/2016 dated 08.09.2016 (Annexure-13) issued by the Jharkhand Rural Health Mission Society, Department of Health & Family Welfare, Government of Jharkhand for the following work "Fabrication & Equipping of ALS & BLS Ambulances" detailed in the bid document and the Scope of Work. The Scope of Work was fabrication and equipping of 40 Nos. of ALS and 289 Nos. of BLS Ambulances.

3. In the present writ petition, the challenge is to the decision of the Tender Committee dated 26.10.2016 declaring the Respondent No. 3 as qualified in the technical evaluation process. Financial bids were also submitted by the parties and have thereafter been opened. Petitioner has quoted the rate of approximately Rs. 46,44,68,335/- crores while the Respondent No. 3 has quoted approximately Rs. 39,18,63,745/- crores. Since the scope of challenge is confined to the technical eligibility of the Respondent No. 3, the relevant eligibility criteria as contained in the NIT are being quoted hereinafter.

5. BIDDER'S QUALIFICATION CRITERIA (BQC) 5.1 EXPERIENCE CRITERIA 5.1.1 The Bidder desiring to bid for the Bidding document shall bid either in the capacity of a single entity / Consortium of Organization / Institutions registered under Society Act / incorporated in accordance with the applicable law.

5.1.2. In case of Single Entity, the bidder must have experience of supplying (fabrication and equipping) at least 165 Nos. of one or more of the following fully equipped - ALS and or BLS Ambulances 2 / Mobile Medical Units / Mobile Dental Units / Mobile CPU under State / Central Govt. Scheme in last five financial years. Documentary evidence such as Purchase Orders/ Contract Agreement with Performance Certificate must be provided in support of the above.

5.1.3 In case of Consortium of Organization, there should be a legally incorporated consortium agreement amongst the Fabricator and / or Medical Equipment Supplier accepting services and joint responsibility for implementing the project, with reference of the Lead Partner and percentage of holding of each partner in the consortium. The maximum permissible partners in the consortium are 3 (three).

5.1.4 In case of Consortium of Organization any one partner of the consortium should satisfy the condition as stated in Clause 5.1.2. It is clarified that total experience of the consortium partners will not be considered.

5.1.5. In case of Single Entity, the bidder should have ISO 9001:2008 certification. Self attested copy of certification should be provided. 5.1.6 In case of Consortium bidding, any one partner of the consortium should satisfy the condition as stated at Clause 5.1.5

6. GENERAL TENDER REQUIREMENTS 6.1. NHM-Jharkhand reserves the right to assess Bidder's capability to execute the work using in house information and by taking into account various aspects such as performance on the existing works being executed by them for NHM-Jharkhand during evaluation of bids & REJECT THEM IF FOUND INCAPABLE.

6.2. Bidder or if any partner of the consortium who has been blacklisted either by the Tender Inviting Authority or by any State Government of Central Government Organization will not be allowed to participate in the tender during the period of blacklisting. Copies of stay order(s) if any against the blacklisting should be furnished along with the bid.

6.3. The Bidder must furnish all necessary documents such as copies of work order/purchase order/contract agreement with performance/completion certificates clearly indicating scope of work and value of the contract of similar works executed, Annual Report including audited Balance Sheets or Audited Financial Statements, Audited Profit & Loss Account etc. along with the Bid in support of their meeting experience & Bidder's Financial Qualification Criteria. NHM-Jharkhand reserves the right to complete the evaluation based on the details furnished by the bidder in the first instance along with their bid without seeking any additional information. 6.4. All supporting documents, pertaining to Bidder Qualification Criteria submitted by the bidder shall be self attested copies, duly signed, dated and stamped. However, this requirement is not applicable to "Published Annual Reports".

6.5. Bids must be accompanied with the Bid Security/EMD [as mentioned above in section 4(c).

6.6. Bids not accompanied with requisite Bid Security/EMD or not in the requisite form shall be considered as non-responsive and such Bids shall be rejected.

6.7. NHM-Jharkhand shall not be responsible for any costs or expenses incurred by Bidder in connection with the preparation or delivery of Bids, site-visit and other expenses incurred during bidding process.

6.8. Bids shall have to be uploaded as specified above in section 4. Time and date of opening of Price Bids shall be intimated only to qualified and Techno-commercially acceptable Bidder(s) at a later date. Incomplete offers shall not be considered for evaluation. 6.9. Bids sent through Fax/E-Mail shall not be accepted. 6.10. The Tender Document Fee and EMD in original should be submitted before opening of the technical bid.

6.11. All the vehicles which are to be fabricated and equipped are to be transported from Ranchi, Jharkhand to the Supplier Workshop for 3 fabrication by the Supplier at its own cost.

6.12. Tender Inviting Authority reserves the right to order 15% more of the requirement specified in the tender document within the validity of the tender which will be one year from the date of signing of the contract and may be further mutually extended for another one year on satisfactory performance.

6.13 The LI bidder shall make its own arrangements to see that the Sales Tax, VAT for the supplied items is deposited in the Account of Government of Jharkhand.

INSTRUCTION TO BIDDERS

7. DOCUMENETS COMPRISING BID 7.0. The Bid should be prepared by the Bidder and shall be submitted in two parts viz. Part-A & Part-B:

7.0.1. PART-A-Technical Bid 7.0.2. PART-B-Price Bid 7.1. TECHNICAL BID (PART-A):- The Technical Bid prepared by the Bidder shall comprise the following components:

7.1.1. Bid Form as per FORM-A 7.1.2. Master Index enclosed duly signed and stamped by the Bidder in token of having received and read all parts of the Bidding Document and having accepted and considered the same in preparing and submitting the Bid.

7.1.3. EMD as per clause 11.0.

7.1.4. Bidding Document Fee, 7.1.5. Power of attorney in favour of signatory(ies) of the bid, 7.1.6. Details of experience in last 05 years as per FORM-B. 7.1.7. Self attested Copy of Partnership Deed in case of partnership firm or Certificate of Incorporation in case of Company or affidavit in case of Proprietary Firm.

7.1.8. Notarized Copy of Consortium Agreement in case of Consortium Bidding.

7.1.9. Compliance to Bid requirement as per FORM-C or in case of Deviation/Exceptions (Bidder is requested not to stipulate any deviation), as per proposal FORM-D. (Sheet-1 for Commercial Section and Sheet-2 for Technical Section). 7.1.10.Check List duly filled in as per FORM-E. 7.1.11.Reply to Commercial Questionnaire as per FORM-F. 7.1.12 Financial Details as per FORM-G duly certified by a Practicing Chartered Accountant.

7.1.13.Manufacture/ Authorized Dealer Certificate as per FORM H 7.1.14. Technical offer and Engineering details, if any, required as per Bidding Document.

7.1.15. List of Items quoted with name of manufacturer as per Form I 7.1.16 Any other information required in the Bidding Document or considered relevant by the Bidder.

7.2 PRICE BID (Part-B) shall consist of the following:- 7.2.1. Price Bid as per BOQ of the portal.

Note:- A scan copy of FORM L (Price Bid) should also be uploaded along with BOQ in the Price Bid Section of the portal with following details

a) Signature & Seal on each Page Each page of the Price Bid should be duly signed by the Bidder affixing the office seal before uploading it in the website.

b) Signature on corrections Bid should be typewritten and every correction in the bid should be attested with full signature by the Bidder, failing which the bid will be ineligible. Corrections done with correction fluid should also be duly attested.

17. OPENING OF PART A- TECHNICAL BIDS 4 17.0. The Technical part of the Bid shall be opened in the presence of attending representatives of Bidder. Number of representative will be restricted to maximum one person. The Bidder's representative who is present shall sign a Bid opening statement evidencing their attendance.

17.1. The Bidder's names, modifications and Bid withdrawals, and the presence or absence of requisite Bid Security/EMD, and such other details as the NHM-Jharkhand at its discretion, may consider appropriate, will be announced, at the opening.

18. QUALIFICATION OF BIDDERS 18.0. NHM- Jharkhand will examine the bids to determine whether they are complete, whether required bid securities/EMD have been furnished, whether the documents have been properly signed, and whether the bids are generally in order.

18.1. The bids without requisite Bid Security (as applicable) will not be considered and bids of such bidders shall be rejected. 18.2. Bidder(s) intending to participate shall fulfill the Qualification Criteria specified in the Notice Inviting Tender. The experience and financial details submitted by the Bidders shall be evaluated with respect to the Qualification Criteria specified in the Notice Inviting Tender. Bidders are requested to submit all Qualification details along with relevant supporting documents in the first instance itself as NHM-Jharkhand may finalize the Qualification based on details submitted without asking for any additional details. Bids of only those Bidders who are found to qualify based on the Qualification Criteria specified in the Notice Inviting Tender shall be considered for detailed Techno-Commercial evaluation. Decision of NHM-Jharkhand in this regard shall be final and binding. 18.3. While evaluating the Bidder's conformity with Experience Criteria, the following consideration shall be applied:

18.3.1. Only such works shall be taken into consideration, the details of which have been submitted by the Bidder as per FORM -B of Proposal Forms along with copy of PO/WO/notification for award/Contract Agreement with Performance Certificate/Copy of proof of completion as specified in Bidder Qualification Criteria specified in the Notice Inviting Tender.

18.3.2. Copy of PO/WO/notification for award/Contract Agreement/ Performance Certificate/Copy of proof of completion for award of work is a mandatory document, which establishes that the Bidder has been awarded a work, which is claimed to be meeting the experience criteria.

18.3.3. In case the above mandatory documents are not enclosed with FORM-B of Proposal Forms, such work shall not be considered in evaluation for meeting the Experience Criteria.

20. EVALUATION OF TECHNICAL BID 20.0. Prior to detailed evaluation of bids, the NHM-Jharkhand will determine whether each bid(i) is substantially responsive to the requirements of the Bidding Document; and (ii) provides any clarifications and/or require pursuant to clause 19.0. Bids without EMD, unless exempted will be outrightly rejected.

20.1. A substantially responsive bid is one, which conforms to all the terms and conditions and requirements of the Bidding Document without material deviation or reservation. A material deviation or reservation is one (i) which affects in any substantial way the scope, 5 quality, or performance of the works; (ii) which limits in any substantial way, inconsistent with the Bidding Document, the NHM-

Jharkhand's rights or Bidder's obligation under the Contract. 20.2. If bid is not substantially responsive, the NHM-Jharkhand shall have full authority to reject the same.

20.3. Bidder shall not be allowed to submit any Price Implication or Revised Price after submission of Bid. In case Exceptions and Deviations submitted by the Bidder along with Bid are not considered as acceptable then in such a case the Bidders would be required to withdraw such Exceptions/Deviations in favour of stipulations of the Bidding document and Bidders would not be eligible for submission of Price Implication/ Revised Price, failing which such Bid(s) shall be considered as non responsive and rejected.

20.4. NHM-Jharkhand reserves the right to use in-house information for assessment of capability of bidder and their performance on last completed job.

4. According to the petitioner, Respondent No. 3 is not eligible in terms of Clause 5.1.2 as it does not have the experience of supplying 165 nos. of one or more of the following: Fully equipped - ALS and / or BLS Ambulances / Mobile Medical Units / Mobile Dental Units / Mobile ICU under State / Central Government Scheme in the last five financial years as it has not submitted proof of having fabricated and equipped minimum 165 nos. of such Ambulances. During the process of technical evaluation, the Technical Evaluation Committee took note of the bids of the parties and made certain observation in respect of both the petitioner and the private Respondent in its meeting held on 07.10.2016. The Technical Evaluation Committee considered the bids of the parties thereafter in its meeting held on 26.10.2016 on the evaluation of the documents submitted, by the Tender Sub Committee in its report dated 19.10.2016. It held both the petitioner as well as the private Respondent eligible. The impugned decision declaring the Respondent No. 3 is at Annexure-7 to the writ petition.

5. Matter was considered in sufficient detail on 30.11.2016 after hearing the counsel for the parties and on perusal of the relevant pleadings and documents relied upon by them, the following order was passed:

"After hearing learned counsel for the parties in sufficient detail and on perusal of the relevant pleadings and documents relied upon by them, the issue in controversy boils down to the question whether the eligible tenderer fulfilled the eligibility criteria laid down in terms of clause 5.1.2 and 5.1.4 of the N.I.T 6 dated 8.9.2016.

2. The author of the N.I.T represented through learned State Counsel have understood the expression used in clause 5.1.2 in the manner that experience of the interested bidder should be both of fabrication and equipping of at least 165 numbers of fully equipped ALS and or BLS Ambulances / Mobile Medical Units etc. supplied by them. The Technical Evaluation Committee took note of the bids of the parties in its meeting held on 7.10.2016 and made certain observations in respect of both, the private Respondent and the petitioner herein. The Technical Evaluation Committee thereafter considered the bids of the parties upon production of their supporting documents in its meeting held on 26.10.2016. At para 3 there of, it observed that the shortfall documents which were asked as per the meeting of the Tender Committee held on 7.10.2016 were again evaluated by the Tender Sub Committee and the said Committee submitted its report on 19.10.2016. As per the report of the Tender Sub Committee, all the required documents mentioned therein were submitted by both parties i.e. the petitioner and the Private Respondent herein. The minutes of the Technical Sub Committee dated 20.10.2016 and 25.10.2016 however in specific terms does not allay the doubt whether the supporting documents submitted pursuant to the minutes dated 7.10.2016 were duly scrutinized and the aforesaid eligibility criteria were found to be satisfied by the Private Respondent.

3. Learned A.A.G, Mr. Ajit Kumar additionally placed reliance on the minutes of meeting of the Technical Sub Committee held on 19.10.2016 also as available from the official record with them. However that specific findings of satisfaction is not made out from the said minutes also.

4. The issue herein while being examined in exercise of powers of the judicial review has to be limited to the decision making process. Reference may be made to the judgment rendered by the Apex Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India reported in (1979) 3 SCC 489. Reliance may also be placed on the judgment in the case of Afcons Infrastructure Ltd. Vrs. Nagpur Metro Rail Corporation Ltd. & Another passed in Civil Appeal No. 9078 of 2016 dated 15.9.2016 as also in the case of Montecarlo Ltd. Vrs. NTPC Ltd. in Civil Appeal No. 10143 of 2016 dated 18.10.2016 by the Apex Court.

5. As observed in the case of Montecarlo Ltd. (supra), exercise of power of judicial review would be called for in such matters involving highly technical nature if the approach is arbitrary or malafide or the procedure adopted meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating the tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.

6. Therefore, keeping in line with the principle enunciated by 7 the Apex Court, if the author of the instant NIT has understood the meaning of the expression employed in clause 5.1.2 in a particular manner, they are required to be satisfied that the bids of respective bidders do conform to the standards laid down by them. This however is not evident from the document on record containing the decision making process.

7. Learned counsel for the Respondent when asked has submitted that the affidavit in that regard would be filed by a responsible Officer who was part of the Tender Evaluation Committee. The Respondent State should clearly state on affidavit whether the Tender Evaluation Committee has been satisfied with the bid and other supporting documents submitted by eligible bidders i.e. private Respondent and the petitioner that they conformed to the eligibility criteria prescribed under Clause 5.1.2 in matters of experience for being considered for award of such an important nature of work under National Rural Health Mission.

List this case accordingly on 8th December, 2016."

6. Respondent State thereafter corresponded with the GVK EMRI - Gujarat through letter dated 05.12.2016. The Chief Operating Officer, GVK EMRI - Gujarat responded through letter dated 12.12.2016. The Additional Director, Medical Services, Gandhinagar also gave his reply on 13.12.2016. These two letters are enclosed as Annexure-A series to the affidavit filed on 14.12.2016 by the Respondent State. A special meeting of the Tender Committee was held at 11.00 AM on 06.01.2017 in RCH Conference Hall presided over by the Additional Chief Secretary, Health, Medical Education and Family Welfare Department cum Mission Director, NHM, Jharkhand along with 13 other Members comprising interlia, Director - in - chief, Health Services, Director Finance, Internal Financial Advisor, Health and representatives of Transport, Finance and Industries Department. Upon consideration of the reply received from GVK EMRI - Gujarat and Additional Director, Medical Services, Gandhi Nagar, the Tender Committee reiterated its decision regarding the eligibility of the Respondent No. 3 as per its tender document. This decision has been sought to be assailed by the petitioner through I.A. No. 502/2017 as they relate to the original cause of action and are in the nature of subsequent development during pendency of the writ application.

7. Learned counsel for the Respondent State and private Respondent have not disputed the aforesaid development taken place in respect of the main cause of action raised during pendency of the writ application. Upon consideration of the 8 submissions of the parties, the said amendments are allowed to be formally incorporated in the main writ petition. However, the instant I.A. be treated as part of the main writ petition. Learned A.A.G. for the State however fairly submits that since the detailed response on merits is already on record, no separate response are required to be furnished to the instant amendment. Record relating to the instant tender, are also with the learned counsel for the State.

8. The issue in controversy is whether Respondent No. 3 is technically qualified as per the terms and conditions of the NIT. It is pertinent to straightaway refer to the certificate of experience furnished by the Respondent No. 3 being letter 23.09.2016 and 14.10.2016 (Annexure-9 & 10), the text of which are also quoted hereunder for appreciating the matter in the context of facts and issues which unfold hereinafter.

"Sub: Client Certificate for Supplier Performance. Dear Sir, We are pleased to issue this supplier performance letter in reference to your request. Certifying that M/s Natraj Motor Body Builders was awarded Works contract for fabrication and equipping of Ambulances during period as per below for 108 and MHU projects for our Gujrat Operations:

                       Purchase Order No.                                   Quantity
PO NO: GVK/DAR-PO/0052/2016-17 Dated: 08/07/2016                     1 Nos.
PO NO: GVK/MHU-PO/0244/2015-16 Dated: 16/03/2016                     5 Nos.
PO NO: GVK/PI-PO/0002/2015-16 Dated: 19/01/2016                      3 Nos.
PO NO: GVK/MHU-PO/0158/2015-16 Dated: 19/12/2015                     2 Nos.
PO NO: 4289.3/0 Dated: 30.07.2015                                    101 Nos.
PO NO: 4092.3/0 Dated: 27.04.2015                                    102 Nos.
PO NO: GVK/MHU-PO/0157/2014-15 Dated: 31-01-2015                     3 Nos.
PO NO: GVK/MHU-PO/0001/2013-14 Dated:05.05.2014                      51 Nos.
PO NO: 3146.3/0 Dated: 04.01.2014                                    136 Nos.
PO NO: 2409.3/0 Dated: 23.11.2012                                    07 Nos.
PO NO: 2266.3/0 Dated: 28.08.2012                                    02 Nos.
PO NO: 2081.3/0 Dated: 18.06.2012                                    110 Nos.
PO NO: 2028.3/1 Dated: 15.05.2012                                    50 Nos.
GVK/UT/FAB/001/1112 Dated: 29.12.2011                           13 Nos.

During the tenure performance of M/s. Natraj Motor Body Builders is found satisfactory as per the contract terms and conditions.

Authorised signatory GVK-EMRI-Gujrat To Whomsoever It May Concern This has reference to certificate date 23.09.2016 and request date 11.10.2016 with reference to tender ref: SRCH/Nam/113/2016 for JHARKHAND RURAL HEALTH MISSION SOCIETY, it is further clarified that M/s Natraj Motor Body Builders was 9 awarded following work contracts to fabricate 108 Ambulances. The Medical equipments like Stretchers, Ventilators, Defibrillators, etc. were provided by GVK EMRI and the ambulanceS were equipped by M/s. Natrajj Motor Body BuilderS as per our requirements.

Tender                    Purchase Order No.                                    Quantity
GUJ/ET/FAB/102/1516       PO No: 4289.3/0 Dated: 30.07.2015                     101 Nos.
                          PO No: 4092.3/0 Dated: 27.04.2015                     102 Nos.
GUJ/ET/FAB/136/1314       PO No: 3146.3/0 Dated: 04.01.2014                     136 Nos.
GUJ/ET/FAB/110/1213       PO No: 2409.3/0 Dated: 23.11.2012                     7 Nos.
                          PO No: 2266.3/0 Dated:28.08.2012                      2 Nos.
                          PO No: 2081.3/0 Dated:18.06.2012                      110 Nos.
GUJ/ET/FAB/50/2011-       PO No: 2028.3/1 Dated: 15.05.2012                     50 Nos.
12
GUJ/ET/FAB/96/1011        GVK/UT/FB/001/1112 Dated: 29.12.2011                  13 Nos.

M/s. Natraj was also awarded following work contracts to fabricate along with supply & fitment of equipments.

Tender Ref.                  Purchase Order No.                                    Quantity
GUJ/ET/MHUFAB/51/1415 PO No: GVK/MHU-PO/0244/2015-16 Dated: 16.03.2016             5 Nos.
                             PO No: GVK/PI-PO/0002/2015-16 Dated: 19.01.2016       3 Nos.
                             PO No: GVK/MHU-PO/0158/2015-16 Dated: 19.12.2015      2 Nos.
                             PO No: GVK/MHU-PO/0157/2014-15 Dated: 31.01.2015      3 Nos.
                             PO No: GVK/MHU-PO/0001/2013-14 Dated: 05.05.2014      51 Nos.


For GVK EMRI- Gujarat

9. Letter dated 14.10.2016 had been submitted by the Respondent No. 3 on being called for to produce the shortfall document. The Respondent No. 3 had also submitted his reply on 17.10.2016 which is at page-48 of their counter affidavit in response to the e-mail dated 7.10.2016 and 14.10.2016 seeking document for further evaluation of their bids. The clarification submitted by the Respondent No. 3 through the letter are also being quoted hereunder for the purposes of appreciating the issue involved.

Your point No. 1:

"Copies of all the complete tender invitation documents as referred in the Purchase Orders attached in support of details of experience as mentioned in FORM B of the technical bid."

Clarification issued by you over email on 14th October 2016 regarding Point No. 1:

"You had claimed experience of 586 ambulances with performance certificate from GVK stating fabrication & equipment work. However, PO of only 64 ambulances mentions both. Therefore, copies of all the complete tender invitation documents as referred in the Purchase Orders attached in support of details of experience as mentioned in FORM B of the technical bid must be submitted."

Our Response to Point No. 1:

We are submitting:

1. The Tender invitation Documents for the Pos mentioned in the Performance Certificate issued by GVK-EMRI, Gujrat.

2. We are re-submitting the performance certificate issued by GVK-

EMRI, Gujrat.

3. We are attaching a letter dated 14th October 2016 from GVK-EMRI, Gujrat.

4. We are attaching an affidavit undertaking that we have done the equipping of ambulances for the Purchase Orders mentioned in Performance Certificate.

However, we would also like to clarify the following:

1. For all Tender Invitation Documents and Purchase Orders for 108 Ambulances from GVK-EMRI, Gujrat to us:

The Tender were for Fabrication of Ambulances and the respective Purchase Orders for fabrication of Ambulances. However, the following should be noted in this regard a. Supply and Installation of "Oxygen Cylinder Compartment & Delivery System including Flow Meter" was part of Tender Document and was executed through the respective Purchase Orders. I. Please refer Tender No. GUJ/ET/FAB/102/1516, Page No. 15 point no. 4 details.

II. Please refer Tender No. GUJ/ET/FAB/136/1314, Page No. 15 point no. 4 details.

III.Please refer Tender No. GUJ/ET/FAB/110/1213, Page No. 15 point no. 4 details.

IV. Please refer Tender No. GUJ/ET/FAB/50/2011-12,, Page No. 15 point no. 4 details.

b. Provisioning of medical equipment such as Spine Board, Scoop Stretcher and Wheel Chair was part of the tender document and was executed through the respective Purchase Orders.

I. This involved provisions for the equipment and the locking-system.

• Please refer Tender No.GUJ/ET/FAB/102/1516, Page No. 18

point no. 7(c) for details.

• Please refer Tender No.GUJ/ET/FAB/136/1314, Page No. 18

point no. 7(c) for details.

• Please refer Tender No.GUJ/ET/FAB/110/1213, Page No. 19

point no. 7(c) for details.

• Please refer Tender No.GUJ/ET/FAB/50/2011-12, Page No. 19

point no. 7(c) for details.

ii. This equipping of medical equipment in the 108 Ambulances was done as per the requirement of GVK-EMRI for BLS/ALS Ambulances. c. Medical equipment (including spine board, scoop stretcher and wheel chair) was provided by GVK-EMRI, Gujrat.

d. The equipping of the 108 Ambulances with medical equipment was executed by our company-M/s. Natraj Motor Body Builders as per the requirement of GVK-EMRI, Gujrat to convert the Ambulances in to BLS/ALS Ambulances.

I. We would also like to highlight the fact that any medical equipment that has to be "fifted/installed" in an Ambulances can only be done so if the provisions for the same has been made during the fabrication stage.

e. The medical equipment was provided by GVK-EMRI, and the equipment was done by our company M/s. Natraj Motor Builders without any cost implication. Hence, there is no mention of "equipping of ambulances with medical equipment" in the Tender documents for 108 Ambulances or the respective Purchase Orders.

f. The performance certificate issued by GVK-EMRI, Gujrat confirms our performance for both fabrication and equipping of ambulances executed under the tenders / purchase orders mentioned in the certificate.

2. For all Tender Invitation Documents and Purchase Orders for MHUs:

a. Supply and installation/Equipping of the Ambulance with medical equipment was part of the tender invitation document and the respective 11 Purchase Orders along with Fabrication.

b. Equipping of Ambulances with medical equipment was executed by our Company- M/s. Natraj Motor Body Builders and this has been mentioned in the respective Purchase Orders.

We further wish to clarify that:

• GVK Emergency Management and Research Institute (GVK-EMRI) is a nodal agency for Government of Gujrat (Department of Health & Family Welfare) for providing emergency response services in the state of Gujrat.

• GVK-EMRI is the tendering authority for tender mentioned in the Performance Certificate.

We thus submit that we meet the eligibility criteria as laid down in " Experience Criteria" in your tender no. SRCH/Nam/113/2016.

In case you seek any additional clarification on the above stated facts, you may independently verify them with GVK-EMRI, Gujrat. Your Point No. 2:

US FDA/European CE Certificate of Scoop Stretcher, Spine Board, Suction Machine (Electrical) and Suction Machine (Hand held) Our Response to Point No. 2.

We are submitting herewith US FDC/European CE Certificate for Scoop Stretcher, Spine Board,Suction Machine (Electrical) and Suction Machine (Hand held) Equipment Manufacturer Make/Brand/ Certificate Certificate issuing Certificate as per Form I Model enclosed Authority Scoop SPENCER Spencer SXR EC Ministry of Health Enclosed Stretcher Spine SPENCER Spencer B BAK EC Ministry of Health Enclosed Board Suction SPENCER Spencer EC Ministry of Health Enclosed Machine BLANCO (Electric) Suction AMBU Rescue Pump CE BSI Enclosed Machine (Hand held) Your point No. 3:

FDA/CE Certificate Glucometer, Double Head Immobilizer, Wheel Chair and Needle cum syringe Destroyer.

Our Response to Point No. 3.

We are submitting FDA/CE Certificate for Glucometer, Double Head Immobilizer, Wheel Chair and Needle cum Syringe Destroyer.

Equipment        Manufacturer Make/Brand/        Certificate   Certificate issuing Certificate
                 as per Form I Model             enclosed      Authority
Glucometer       J & J Lifescan One Touch            EC        DEKRA               Enclosed
                                                               Certification
Double Head      SPENCER         SPENCER             EC        Ministry of Health Enclosed
Immobilizer
Wheel Chair      Hubel           YKL                 CE        TUV                 Enclosed
                 Yinkang
                 Medical
                 Equip. Co.
                 Ltd
Needle cum       MRK             NU TEC              CE        DNV                 Enclosed
Syringe          Healthcare      Needle Burner
Destroyer                        & Syringe
                                 Destroyer
                                          12

Please feel free to contact us for any further queries/clarifications.

Thanking you and assuring you of our best attention at all times. Thanking you and assuring you of our best attention at all times.

10. Respondent No. 3 chose to furnish the Purchase Orders in relation to the shortfall documents called for by the Technical Evaluation Committee in support of its claim of experience of having not only fabricated but also equipped 108 nos of Ambulances with equipment such as Stretchers, Ventilators, Defibrillator, etc. provided by GVK EMRI - Gujarat. The point of controversy is not in relation to the work experience furnished by the Respondent No. 3 in respect of fabrication along with supply and fitment of equipment of 64 nos. of Ambulances referred to in the second chart of certificate dated 14.10.2016 (Annexure-10) quoted herein-above.

However, the experience required was of having not only fabricated but also equipped 165 nos. of Ambulances. In support of the claim of experience of having fabricated and equipped 521 nos of 108 Ambulances, as referred to in the first chart at Annexure-10 dated 14.10.2016, Respondent No. 3 had produced the Purchase Orders.

11. By way of illustration, one of the Purchase Orders produced by the Respondent No. 3 in support of its claim of experience of fabrication and equipping (on record in the counter affidavit of the Respondent No. 3 as well as brought on record by the petitioner), is being evidenced herein-after for better appreciation. NIT No. GUJ / ET / FAB/ 102/1516 issued by the GVK EMRI - Gujarat (GVK Emergency Management and Research Institute)) is in respect of the invitation of tender for fabrication of 102 Nos. of Ambulances on force Travellor WB 3350 BS- III Base Vehicles, wherein on-line bids were invited by GVK - EMRI, Gujarat. The Respondent No. 3 claims to have succeeded in the bid and got the work. Relevant conditions and criteria of the said NIT including Scope of fabrication work with the subheads of the specific works at Annexure-1 of the tender document is also being extracted hereinafter.

5. General Terms and Conditions for Fabrication of Ambulances.

1.Ambulance Base Vehicle Fabrication:Annexure-1, 13 Part-II (A-B-C)

2.Workmanship Criteria for acceptance:Annexure-2 Part A: Scope of Fabrication work:

1) Cabinet for storing medical equipment / supplies / Wash basin / dust bins:

2/ Squad bench / attendant seat - (with Seat belts) with storage for EM rescue

3) EMT's Seat:

4) Oxygen Cylinder Compartment and delivery system:

5) Flooring

6) Wall paneling work Pilot and Patient Compartments:

b) ABS Paneling Spares:

c) All the Panels, Parts Mounted and Provision for Medical Equipment to be Mounted, shall have 4mm thick Mild Steel (MS Fe 410) sheet reinforced behind.

7. Hat-racks and grab rails in the ceiling and near Rear Door:

a) Hat Racks:

b) Grab Rails:

c) Spine Board, Scoop Stretcher and Wheel Chair Hold:

8. Fire Extinguisher hold:

9. Window Covering:

10. Water Dispenser:

Part B: Scope of AC Work:

11) Guide lines for Air Conditioning System: Part C: Scope of Electrical Work:

                           12)     Inverter:
                           13) Light Bar
                           14) Flashers, Spot, Lights, tube lights:
                           15) Electrical Wiring:
                              All The main Components like,
                           16) Fuse and other Safety Measures:
                           17) Clock:
                           18) DC connections Socket:
                           2. Roof / Wall mounted fans:
                           3. Body Graphics:

12. It is also pertinent to mention here that the Respondent No. 3 had submitted experience certificate in relation to the fabrication and equipment of 64 nos. of Ambulances, as per certificate at Annexure-10. Though, tender documents / purchase orders in support thereof were called for by the tender evaluation committee, but sample of one such on-line invitation of tender for supply of medical equipment issued by the GVK EMRI under tender notice bearing no.

GUJ/ET/MEDEQP2/136/1314 have been brought on record by the petitioner through his affidavit (Annexure-25 to the rejoinder to supplementary affidavit of Respondent Nos. 1 and 2). The nature and scope of work in relation to the supply of medical equipment and its equipping as floated by GVK EMRI and performed by the Respondent No. 3 in the nature published under instant tender notice bearing no. GUJ/ET/MEDEQP2/136/1314, has not been doubted by the Respondent State or Respondent No. 3. It is worthwhile therefore, to refer to the Scope of Work 14 envisaged for supply and equipping of medical equipment under the said NIT No. GUJ/ET/MEDEQP2/136/1314 including the item, schedule of equipment, to be specifically supplied and fitted by the tenderer like the Respondent No. 3. The Scope of Work provided for supply of medical equipments as per technical specification and quantity given separately in the document by a reputed manufacturer. GVK EMRI is a nodal agency for Government of Gujarat for providing emergency response services in the State of Gujarat. Schedule of item to be supplied and equipped in the medical units / Ambulances are also indicated at Annexure-1 to the said tender documents which is quoted with sub heads hereunder. The detail specification of such equipments falling under broad categories in Item Schedule-1 'Patient Handling Equipments', Item Schedule-2 'Hi End Equipments', Item Schedule-3 'Patient Support Equipment' and Item Schedule-4 'Extraction Tools' are not being extracted hereunder. But a mere perusal thereof goes to show that the equipments to be supplied are of highly specialized nature to be fitted in such Ambulances to ensure the finest quality of emergency response services.

"Item Schedule 1: Patient Handling Equipments Heavy Duty Auto Loader - Collapsible stretcher Spine Board Scoop Stretcher Item Schedule 2: Hi End Equipments Multi Para Monitor

8. Alarms

9. Display

10. Data

11. ECG

12. Respiration

13. NIBP

14. Temperature

15. SpO2

16. ETCO2 up gradation

17. Accessories to be supplied along with the Monitor AED Machine Ambulance Ventilator Item Schedule 3 Patient Support Equipments

1) Oxygen Cylinder - Portable

2) Oxygen Cylinder - D Type

3) Stethoscope

4) BP Apparatus Dial Type (Aneroid)

5) BP Apparatus Digital

6) Nebulizer Machine

7) Battery Operated Suction Machine

8) Pulse Oxymeter

9) Needle & Syringe Destroyer

10) Hand Held Suction Machine Schedule 4 Extraction Tools:

12" Wrench Adjustable Open End:

12" Screw Driver Standard Square Bar:

8" Screw Driver Philips Head # 2:

Hacksaw with 12" Carbide Wire Blade:

Vise Grip Pliers 10"

5LB Hammer with 15" Handle:

Fire Axe Butt 24" Handle:

Wrecking Bar with 24" Handle:

51" Crowbar Pinch Point:

Bolt Cutter with 1" to 1/4" Jaw Opening:

Showel Pointed Blade:

Tin Snips, Double Action 8" Minimum Gauntlets:

Ropes 5400 LB Tensile Strength in 50':

Mastic Knife Spring Load Center Punch:

Pruning Saw:

Fire Extinguisher - 5KGs with Fixing Stand: Luminous Search Light (Rechargeable):

Goggles"

Annexure-2 to the said tender document contains the description of item schedule and EMDs which is quoted hereinafter. It also contains the price schedule of the item described.

    Item                   Description of Delivery Annexure                     EMD
  Schedule                                                                     Amount
                                                                                (Rs.)
Schedule 1                     Patient Handling Equipment                       3,35,000/-
Schedule 2                         Hi End Equipments                            1,00,000/-
Schedule 3                     Patient Support Equipments                       2,10,000/-
Schedule 4                          Extrication Tools                             13,500/-

13. GVK EMRI on being asked through letter dated 05.12.2016 by the Respondent Department, gave the following answer through its letter dated 12.12.2016 enclosed as Annexure-A series (page -7 of supplementary counter affidavit dated 14.12.2016), text of the reply is also being quoted hereinafter.

"Kindly refer to your letter ref no. 9/RCH-935/116-5938 (RCH) Dated 05/12/2016 We wish to clarify that the certificates 23/09/2016 and 14/10/2016 were issued by GVK EMRI on the request of M/s Natraj Motor Body Builders for your tender No. SRCH/Nam/113/2016.

It is to further clarify that the fabrication work of the 108 ambulances was awarded to M/s Natraj Motor Body Builders and the fitment of equipment like required stretchers and medical equipments like Ventilator, Defibrillator etc; as supplied by GVK EMRI or available in retiring ambulances was done as part of fabrication. There being no separate job awarded formally, no separate work order was issued for the same and the cost of the fitment is included in the cost of fabrication. The above is for your information.

For, GVK Emergency Management & Research Institute."

14. The Tender Committee in its special meeting held on 06.01.2017, has taken into account this reply of GVK EMRI and come to the opinion that the Respondent No. 3 had been able to satisfy the eligibility of experience as prescribed in clause- 16 5.1.2 of the tender document. Admittedly, no other documents were supplied by GVK EMRI as proof of the supply of equipments to the Respondent No. 3 for being fitted in those 521 Ambulances for which Respondent No. 3 was awarded the work of fabrication. GVK EMRI conveyed in specific terms that no separate work order was issued because cost of fitment is included in the cost of fabrication. Respondent State and Respondent No. 3 both have supported the decision of the Tender Committee on the assertion that the work of fitting of equipments in 521 Ambulances, referred to in Chart at Annexure-10 dated 14.10.2016, were undertaken by the Respondent No. 3 as a part of fabrication work for which no separate work order was issued. Equipments were supplied by GVK EMRI and fitted by the Respondent No. 3. This part of the work fulfilled the eligibility criteria of equipping 165 nos. of Ambulances required in terms of the eligibility criteria under Clause 5.1.2.

15. In the context of the aforesaid stand taken by the Respondent, it would be proper to once again refer to and reproduce clause 5.1.2 containing the experience criteria as well as clause 18.3.2 being part of the General Instructions (Instructions to Bidders) under the sub heads 'Qualification of Bidders'.

"5.1.2. In case of Single Entity, the bidder must have experience of supplying (fabrication and equipping) at least 165 Nos. of one or more of the following fully equipped - ALS and or BLS Ambulances / Mobile Medical Units / Mobile Dental Units / Mobile CPU under State / Central Govt. Scheme in last five financial years. Documentary evidence such as Purchase Orders/ Contract Agreement with Performance Certificate must be provided in support of the above.

18. QUALIFICATION OF BIDDERS 18.3.2 Copy of PO / WO / notification for award / Contract Agreement / Performance Certificate / Copy of proof of completion for award of work is a mandatory document, which establishes that the Bidder has been awarded a work, which is claimed to be meeting the experience criteria."

16. It can be straightaway inferred from the two specific conditions relating to experience criteria that the tenderer had to produce documentary evidence such as Purchase Orders, contract Agreement, its Performance Certificate in support of its claim of experience of having fabricated and equipped at least 165 nos. of such 17 Ambulances. Clause 18.3.2 also prescribes production of copy of Purchase Order, Work Order / Qualification for award / contract Agreement / Performance Certificate / Copy of proof of completion for award of work as mandatory documents to establish that the bidder has been awarded the work which it claims to meet the experience criteria. The Respondent No. 3 or its employer GVK EMRI under whom it claims to have executed the work of fabrication and equipment of 521 nos of Ambulances, have however failed to produce any such document showing the supply of equipments or its actual fitting in the aforesaid number of Ambulances by the Respondent No. 3 as being professed on their behalf. The Scope of Work and the Item Schedule of such NIT requiring supply of equipment and fitting floated by the same employer GVK EMRI, have been referred to and quoted herein-above. They clearly show the wide expanse and the nature of equipment to be fitted in any such fully loaded Ambulances complete in all respects. Though, Respondent No. 3 claims to have included the following equipments in its nature of work and fitted them on being suppled by GVK EMRI i.e. Scoop Stretcher, Spine Board, Suction Machine (Electric), Suction Machine (Hand Held), Glucometer, Double Head Immobilizer, Wheel Chair, Needle cum Syringe Destroyer through its letter dated 17.10.2016, but as stated herein-above, no such document in support of such claim, apart from the Scoop Stretcher, Spine chair and Wheel chair Hold have been submitted by it or by GVK EMRI while responding to the specific queries by the Department through its letter dated 12.12.2016. On the other hand, the claim made by the Respondent No. 3 through the same letter dated 17.10.2016 of having undertaken the supply and installation of Oxygen Cylinder Compartment & Delivery System including Flow Meter executed through the respective Purchase Orders does not satisfy the requirement of experience relating to equipping of required number of Ambulances, as the nature of work under these purchase orders was undisputedly of fabrication of Ambulances.

17. The discussions made herein-above, in the light of the relevant documents material for consideration of the issue involved herein, therefore lead to the inference that requirement of eligibility criteria of equipping 165 nos. of 18 Ambulances were not adequately supported by documents by the Respondent No.

3. The document of fabrication and certificate produced by the Respondent No. 3 did show experience of having fabricated and equipped 64 number of Ambulances, but regarding rest 521 number of Ambulances, the nature and scope of work under the NIT and Purchase Orders, produced by the Respondent No. 3, leave no doubt that they did not relate to either supply order of equipment or fitting of equipment in the real sense of the word when compared to the specific NIT issued by GVK EMRI itself for supply of equipment and fitting in such Ambulances by not only the Respondent No. 3 but other agency as well.

18. The contours of interference by the Constitutional Courts in such matters are limited to the review of decision making process. The employer or the author of the NIT has the freedom to frame the terms and conditions required for the nature of work to be performed by the successful tenderer. However, once the author of the NIT professes the terms and conditions, it is required to conform to the terms and conditions specifically laid down thereunder. Derogation and relaxation beyond the terms and conditions, if at all made, have to be done uniformally in case of all eligible tenderers. One may profitably refer to the ratio rendered by the Apex Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India [(1979) 3 SCC 489]. The opinion of the Hon'ble Supreme contained at Paragraphs-10, 21 and 34 is quoted hereunder:

10. Now, there can be no doubt that what para (1) of the notice prescribed was a condition of eligibility which was required to be satisfied by every person submitting a tender. The condition of eligibility was that the person submitting a tender must be conducting or running a registered IInd Class hotel or restaurant and he must have at least 5 years' experience as such and if he did not satisfy this condition of eligibility, his tender would not be eligible for consideration. This was the standard or norm of eligibility laid down by Respondent 1 and since the Respondents 4 did not satisfy this standard or norm, it was not competent to Respondent 1 to entertain the tender of Respondents 4. It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr Justice Frankfurter in Viteralli v. Saton where the learned Judge said:

"An executive agency must be rigorously held to the standards by which it professes its action to be judged .... Accordingly, if dismissal from employment is based on a defined procedure, even 19 though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed .... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."

21. This rule also flows directly from the doctrine of equality embodied in Article 14. It is now well-settled as a result of the decisions of this Court in E.P. Royappa v. State of Tamil Nadu and Maneka Gandhi v. Union of India that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non- discriminatory: it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory. This principle was recognised and applied by a Bench of this Court presided over by Ray, C.J., in Erusian Equipment and Chemicals Ltd. v. State of West Bengal where the learned Chief Justice pointed out that "the State can carry on executive function by making a law or without making a law. The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution. Article 14 speaks of equality before the law and equal protection of the laws. Equality of opportunity should apply to matters of public contracts. The State has the right to trade. The State has there the duty to observe equality. An ordinary individual can choose not to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting .... A citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling .... It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods".

It must, therefore follow as a necessary corollary from the principle of equality enshrined in Article 14 that though the State is entitled to refuse to enter into relationship with any one, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness and non- discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non discriminatory ground.

34. It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, Respondent 1 was not entitled to act arbitrarily in accepting the tender of Respondents 4, but was bound to conform to the standard or norm laid down in para 1 of the notice inviting tenders which required that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender. It was not the contention of the appellant that this standard or norm prescribed by Respondent 1 was discriminatory having no just or reasonable 20 relation to the object of inviting tenders, namely, to award the contract to a sufficiently experienced person who would be able to run efficiently a IInd Class restaurant at the airport. Admittedly the standard or norm was reasonable and non-discriminatory and once such a standard or norm for running a IInd Class restaurant should be awarded was laid down, Respondent 1 was not entitled to depart from it and to award the contract to Respondents 4 who did not satisfy the condition of eligibility prescribed by the standard or norm. If there was no acceptable tender from a person who satisfied the condition of eligibility, Respondent 1 could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of Respondents 4. When Respondent 1 entertained the tender of Respondents 4 even though they did not have 5 years' experience of running a IInd Class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering for the contract. There might have been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years' experience of running a IInd Class restaurant, but who were otherwise competent to run such a restaurant and they might also have competed with Respondents 4 for obtaining the contract, but they were precluded from doing so by the condition of eligibility requiring five years' experience. The action of Respondent 1 in accepting the tender of Respondents 4, even though they did not satisfy the prescribed condition of eligibility, was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract and it was also arbitrary and without reason. The acceptance of the tender of Respondents 4 was, in the circumstances, invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action.

Reliance may also be placed upon the judgment rendered by the Apex Court in the case of Tata Cellular versus Union of India [(1994) 6 SCC 651]. Opinion of the Hon'ble Supreme Court contained at paragraph-77, 80 and 81 is quoted hereunder:

77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceeded its powers?

2. Committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out 21 addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".

80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849- 850, may be quoted:

"4. Wednesbury principle.-- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn, per Lord Greene, M.R.)"

81. Two other facets of irrationality may be mentioned. (1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision- maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion.

(2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down."

The principles on which review of decision making process can be made in such matters involving highly complexed technical subjects have also undergone evolution by the pronouncement of the Apex Court from time to time. In this regard, it is apposite to quote the opinion of the Apex Court as held in the case of Afcons Infrastructure Ltd. Versus Nagpur Metro Rail Corporation Ltd. & another in Civil Appeal No. 9078/2016 dated 15.09.2016 para-15 thereof, also reported in 2016 SCC Online SC 940 hereunder:

15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not 22 acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."

19. In the recent judgment delivered by the Apex Court in the case of Montecarlo Ltd. versus NTPC Ltd in Civil Appeal No. 10143/2016 dated 18.10.2016, the Hon'ble Court has been pleased to hold in similar terms at paragraph-24 thereof, also relying upon the judgment rendered in the case of Afcons Infrastructure (Supra). Para-24 is quoted hereunder:

"24. we respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner's organization is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because of check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi- prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."

20. This Court is conscious of the limitation in the exercise of powers of judicial review in interfering in matters involving highly complexed technical subjects. The yardstick and the principles laid down by the Apex Court in the case of Afcons Infrastructure (Supra) and Montecarlo Ltd. (Supra) permit interference in such 23 matters if a case of malafide or perversity in the understanding or appreciation or in the application of terms of tender conditions is made out. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.

21. The instant tender, as conveyed by the counsel for the parties, is the fourth one for the present work. The previous three tenders were aborted for one reason or the other. Perhaps in the eagerness to meet the deadlines and to ensure that the tender process reaches finality, the Tender Committee may have acted in the manner by overlooking the requirement clearly specified in the eligibility criteria by interested bidders for the purposes of fulfilling the experience requirement.

22. In the instant case, as has been noted in the earlier order dated 30.11.2016 as well, according to the authors of the NIT, the expression used in clause 5.1.2 have been understood in the manner that the experience of interested bidders should be both of fabrication and equipping of at least 165 nos. of fully equipped ALS and BLS Ambulances, Mobile Medical Units supplied by them. There is no quarrel on this understanding of the expression used in clause 5.1.2. However, when applied in the context of the claim of experience made by the respective tenderers, it is evident from the discussions made herein-above that the Respondent No. 3 has failed to conform to the terms of the tender document specially clause 5.1.2 in its true sense. The Respondent No. 3 despite opportunity granted to produce shortfall document failed to show experience in respect of equipping of 521 nos. of Ambulances, as 24 reflected in the first chart of Annexure-10 by any supporting documents. Its employer GVK EMRI apart from reiterating the same opinion through its letter dated 12.12.2016, however failed to substantiate it by any cogent document. The NIT for supply of equipment and fitting in such Ambulances issued by GVK EMRI itself shows a wide variety of equipment required to be supplied and fitted in such Ambulances involving a total value of more than few lakhs per Ambulance. The plea of the Respondent No. 3 on the support of certificate of GVK EMRI, does not however impress the Court that it had satisfied the eligibility criteria of equipping the minimum number of 165 number of Ambulances apart from its fabrication essential for fulfilling the technical eligibility criteria for competing and award of the work. This amounts to a material deviation or lack of eligibility on the terms and conditions and requirement of the Bid document which affects in substantial way the scope, quality and performance of work. This Court would refrain from commenting beyond this on the plea of the petitioner as to whether the decision of the Technical Evaluation Committee was intended to favour one of the bidders in the absence of further pleadings and documents supporting it. However, being tested on the limited grounds available in view of the ratio laid down by the Apex Court in the case of Afcons Infrastructure (Supra) and Montecarlo Ltd. (Supra), this Court is satisfied that the decision of the Tender Committee suffers in law and on facts warranting interference in exercise of powers of judicial review of this Court.

23. As an upshot of the discussions and reasons recorded herein-above, this Court is left with no other option, but to quash the decision of the Tender Committee declaring the Respondent No. 3 as eligible for participating in the financial bid. Accordingly, the impugned decision dated 26.10.2016 and 06.01.2017 are quashed.

24. Writ petition is allowed in the aforesaid manner and to the extent indicated herein-above.

(Aparesh Kumar Singh, J) Ranjeet/

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