Document Fragment View

Matching Fragments

1. The instant writ petitions have been filed primarily seeking, inter alia, the quashing of Tender No. CMSS/PROC/2021-22/NACO/034 published on 15.02.2022 and floated by the Respondent - Central Medical Services Society (hereinafter referred to as „CMSS‟), an autonomous society of the Ministry of Health and Family Welfare, and for the finalization of Tender No. CMSS/PROC/2021-22/NACO/011 dated 27.09.2021 in favour of the Petitioners herein. The said tenders pertain to the procurement of Buprenorphine 2 mg and 0.4 mg.

Similar item is defined as below:

For Sch I. - quoted/any Kit of NACO For Sch. II- quoted/any ARV Drugs For Sch. III- quoted/any tablet of NACO"
b) It is stated that Tender No.1 was cancelled by CMSS, and thereafter, a second tender, being Tender No. CMSS/PROC/2020-21/NACO/023 (hereinafter referred to as "Tender No.2") was floated for procurement of Buprenorphine 2 mg. It is stated that M/s Consern Pharma Ltd. and M/s Centurion Laboratories Pvt. Ltd., who had been declared as L-1 and L-2 bidders, were found to have submitted forged and fabricated documents, and in view of the same, CMSS cancelled Tender No.2 and did not proceed with the said bid. However, no action was taken by CMSS against the entities alleged to have submitted forged documents.

15. In Rejoinder, the learned Senior Counsel appearing for the Petitioner in W.P.(C) 3270/2022 submits that the decision of CMSS to issue a fresh tender is arbitrary and malafide, and that the reasoning provided by CMSS that the decision was taken on account of the exorbitant prices/rate quoted by the Petitioners is false. He states that CMSS has falsely alleged that three different government agencies have purchased Buprenorphine (2mg) in the month of February 2022 at prices/rates lower than the rates quoted by the Petitioners herein. Mr. Uppal further raises the contention that CMSS has failed to take any action against the erring bidders who had submitted false and fabricated documents in Tender No.2, and that this goes against their own terms and conditions stipulated in their tenders. He states that the actions of the bidders should be investigated by the Narcotics Control Bureau and the Central Narcotic Bureau.

23. The Petitioners have contended that the cancellation of Tender No.3 without informing the Petitioners or without providing reasons goes against Clause 7.5.11 in the Manual for Procurement of Goods 2017 issued by the Government of India, Ministry of Finance. On the other hand, it is the contention of CMSS that the prices quoted by the Petitioners were too exorbitant and that despite negotiation, the rates were still high by +56.47% and +265.75%. In these circumstances, it cannot be said that the decision of CMSS to cancel Tender No.3 and to float Tender No.4 with deviation in the eligibility requirements is unreasonable or irrational. Taking into consideration the fact that the said decision was solely taken to ensure greater participation and better rates for the drugs, this Court does not intend to exercise its jurisdiction to interfere in the decision of the authority. Furthermore, Clause 11.3 of the tender document categorically states that "the purchaser reserves the right to accept or reject any bid, and to annul the bidding process and reject all bids, at any time prior to award of contract without assigning any reason whatsoever and without thereby incurring any liability to the affected bidder or bidders on the grounds of purchaser‟s action". In view of this, CMSS was well within its right to cancel Tender No.3 and was not obligated to assign any reason or intimate the cancellation to the Petitioners.