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9. In respect of the bid of the appellant, it was mentioned that on perusal of the market standing condition by the Bid Evaluation Committee, it was found that as per the declaration submitted by the appellant in Annexure-A of the bid document, the 1 st date of product Page No.# 6/40 permission had been shown as 29.06.2015, 15.07.2015 and 24.06.2015 which confirmed that the appellant did not fulfill the required condition of 3 financial years market standing on the date of the tender from the date of product permission. It further mentioned that the Market Standing Certificate dated 18.07.2017, issued by the Central Drugs Standard Control Organisation (the CDSCO, in short), was issued in favour of one M/s Covidien Healthcare India Pvt. Ltd. and not in favour of the appellant and the certificate did not clearly specify the years as to whether the same was calendar year or financial year. The Speaking Order further mentioned that it was found on detail scrutiny that the specifications quoted in respect of 19 items out of the 68 items for which rates were quoted by the appellant i.e. for item nos. 198, 199, 200, 201, 205, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229 and 236, were not as per the required specification mentioned in the tender and were deviated from the given specification which was ascertained after verification of the documents related to import licence and product permission issued by the competent authority and furnished by the appellant. It further mentioned that though the appellant furnished certain other documents like old product permissions and old import export permissions in support of its claim for consideration as L-1 bidder for those 12 products along with his petition dated 06.02.2018, the same could not be considered as those were not submitted earlier along with the bid. The Speaking Order further mentioned that the rate contract was issued on 30.01.2018 only to those eligible L-1 bidders who had the required market standing. Since the appellant was not an eligible L-1 bidder, the matter was not informed to the appellant. It further mentioned that though initially qualified in the technical bid, the appellant was subsequently found to have not fulfilled the required conditions during the stage of financial evaluation and, therefore, the bids/rates quoted by the appellant against the items were not considered eligible for financial evaluation. Accordingly, the bids of the appellant for those 12 items were rejected by the authority in exercise of its right to reject tender, available in the tender document.

19. It is also apt to extract the Market Standing Certificate dated 18.07.2017, issued to M/s Covidien Healthcare India Pvt. Ltd. by the Central Drugs Standard Control Organisation (CDSCO), in its entirety, as under :-

"Central Drugs Standard Control Organisation Diary no.13010 Dated 24/05/2017 Directorate of General of Health Services Ministry of Health & Family Welfare (Medical Devices & Diagnostics Division) Food & Drugs Administration Bhawan, Kotla Road, New Delhi-110002 F. No.: MD/NC/2017-DC (12) Date : 18 JUL 2017 MARKET STANDING CERTIFICATE This is to certify that M/s Covidien Healthcare India Pvt. Ltd., situated at Doshi Towers, 6th Floor,#156, Poonamaliee High Road, Kilpauk, Chennai - 600010 is holding Import Licence (s) No. MD-796-1333 valid upto 30.06.2018; MD-933-1299 valid upto 31.05.2018 ; MD-948-1342 valid upto 31.05.2018; MD-949-1344 valid upto 30.06.2018 Page No.# 16/40 and MD-1201-1852 valid upto 31.05.2018, for import of Medical Devices as stated in Import Licence.
It is further certified that the firm is importing Medical Devices (List enclosed) for the last three years.
The certificate is valid for One Year Only.
(Dr. S. Eswara Reddy) Joint Drugs Controller (I)"

20. The learned Single Judge had observed that as per the above Market Standing Certificate, M/s Covidien Healthcare India Pvt. Ltd. had valid Import Licences up to 30.06.2018, 31.05.2018, 30.06.2018 and 31.08.2018 for import of medical devices as stated in the Import Licences wherein, it was also certified that the said company was importing medical devices for the last 3 years. It was further observed that the 4 licences, annexed to the writ petition, were dated 15.07.2015, 24.06.2016, 29.06.2015 and 03.07.2015 which meant that M/s Covidien Healthcare India Pvt. Ltd. could have exported the licence items only from the dates of those licences. If the above dates were taken into consideration, the financial year 2014-2015 i.e. from 01.04.2014 to 31.03.2015 would stand excluded. Therefore, it did not stand to reason as to how the CDSCO could have certified that M/s Covidien Healthcare India Pvt. Ltd. was importing medical devices for the last 3 years. Reference was made to the order dated 10.08.2017 of the National Company Law Tribunal (NCLT), Chandigarh Bench, whereby, the Scheme of Amalgamation between M/s Covidien Healthcare India Pvt. Ltd. as the transferor company and the appellant as the transferee company was sanctioned. The learned Single Judge had negated the claim of the appellant to the effect that the experience of M/s Covidien Healthcare India Pvt. Ltd. should be treated as the experience of the appellant being the transferee company, for the purpose of satisfying the eligibility criteria of 3 years market standing. After having referred to a number of decisions in the field, the learned Single Judge was of the opinion that the experience of the transferor company acquired prior to amalgamation, could not become the experience of the transferee company post-amalgamation, which, in the instant case, is the appellant. Upon such deliberation, the Single Judge was of the view that it cannot be said that the decision of the respondent no. 2 to declare the appellant as technically deficient was arbitrary or Page No.# 17/40 unreasonable. In view of the tender condition contained in Clause 3(d) of the tender document, it was observed that the view so taken cannot be faulted. It was further observed that the shortlisting of 36 bidders including the appellant, as reflected in the Minutes dated 02.01.2018, was in the nature of conditional shortlisting as it was observed therein itself that all the items quoted by the said bidders were not technically eligible due to absence of 3 years Market Standing Certificate as well as non-availability of execution of similar contract. It was held that in such scenario, it cannot be said that the appellant having been shortlisted on 02.01.2018, could not have been technically disqualified on 04.01.2018 as such a decision is permitted by the tender document itself by providing that L-1 bids of the qualified tenderer would be declared only after technical and commercial evaluation.

25. Lastly, he submits that two different standards were applied by the tendering authority in evaluating the bids of the appellant and the respondent no. 3 in the context of the Market Standing Certificate, issued by the CDSCO, in favour of the appellant and the respondent no. 3 respectively. By referring to the communication dated 21.04.2015 and the Import Licence in Form 10 with validity period from 01.04.2015 to 31.03.2018, he submits that the respondent no. 3 also would not have qualified in respect of 3 financial years market standing, had the tendering authority applied the same yardstick, as has been applied in respect of the appellant. Moreover, the said Import Licence only reflects 14 items of staplers only without cutters. The Market Standing Certificate dated 02.01.2017 issued by the CDSCO in favour of the respondent no. 3 on the basis of import licences, quoted therein, goes to show that the respondent no. 3 does not have 3 years market standing w.e.f. 01.04.2014 in respect of the Page No.# 21/40 staplers. In respect of Item no. 205, a higher value product, the respondent no. 3 did not have any import licence, he alleges. He, thus, submits that if the appellant stands disqualified by interpretation of the Market Standing Certificate with the import licences, granted in its favour, in one particular manner than the Market Standing Certificate with the import licences, granted in favour of the respondent no. 3, must have to be interpreted in that particular manner only. If same interpretation is made then the selection of the respondent no. 3 in respect of the 9 items and the rate contract offered thereto, are vitiated and liable to set aside. He has placed reliance in the decision of the Hon'ble Supreme Court in the case of Vasavi Engineering College Parents Association vs. State of Telangana and others , 2019 SCC Online SC 805.