19 Jan 2121

Scrutiny of a tender document submitted by a bidder should not be to non-suit the bidder on hyper-technical issues that would not be in the public interest curtailing competition - Delhi High Court

Case : Siemens Healthcare Private Limited and Anr. v. Directorate General of Health Services, Central Procurement Agency and Ors. W.P.(C) 3452/2020 & CM APPL. 12240/2020

Court : Delhi High Court

Bench : Justice Vipin Sanghi and Justice Rekha Palli

Decided on : 19 Jan 2121

Relevant Statues

Article 226 of the Constitution of India, 1950

Brief Facts & Procedure History

1. The relevant seminal facts are that it is the case of the Petitioners that the Respondents initiated an e-tender process to procure 3 units of 1000mA Digital Flat Panel Fluoroscopy Radiography System and related services by way of a tender document bearing tender ID 2019_DHS_181723_1; Ref no: TN 19_10 1000mA DFRS Covering 1000 MA DIGITAL FLAT PANEL FLUOROSCOPY RADIOGRAPHY SYSTEM. Petitioner No.1, an affiliate company of Petitioner No.2, participated in the tender process and its technical bid was found to be in order. However, soon thereafter on 03.04.2020, Petitioner No.1 was informed that it was disqualified from the tender process, without being provided with any reasons.

2. Subsequently, the Petitioner made several representations to the Respondents requesting the reasons for its disqualification to be disclosed, which went unanswered. Finally, on 29.05.2020, the Petitioner received an email from the Respondents communicating the reasons for its disqualification by stating that the PQ Evaluation Committee has disqualified the said firm due to the submission of the undertaking which was not verified/notarized as per Tender requirement. Upon receiving the aforesaid reasons, the Petitioner preferred the present writ petition under Article 226 of the Constitution of India, 1950.

The Issue(s) of the Case

Whether the rejection of the Petitioner’s bid by disqualifying the Petitioner on the ground of not duly attested or verified undertaking as claimed by the Respondents are justified? 

The Observations of the Court

The Honourable Delhi High Court observed the following:

1. Perused Clause 27 of the Tender Conditions regarding the presence of Minor infirmity or Irregularity or Non-Conformity and opined that there was no requirement for two authorized officers of the bidder to execute the undertaking as per Annexure U.

2. Contemplated the document of undertaking furnished by the Petitioner which bears the signature of Mr Batra, the Senior General Manager on all three pages, including on page 1, on which the attestation of the Notary Public is found.

3. Opined that mere failure to put the stamp, seal and signatures on the remaining two pages of the document would not lead to the inference that the entire document has not been verified, signed and attested by the Notary Public.

4. Further opined that the non-affixation of the stamp and signature of the Notary Public on pages 2 and 3 of the document Annexure U, at the highest, was a minor non-conformity, or irregular, or infirmity.

5. Furthermore, even if the Evaluation Committee of the respondents felt that the undertaking in Annexure U Format should bear the attestation on all the pages, they could and should have called upon the petitioner to make good the said so-called deficiency or infirmity. Therefore, the approach of the Respondents was considered to be unfair or unreasonable.

6. Further opined that the purpose of scrutiny of a tender document submitted by a bidder should not be to non-suit the bidder on such hyper-technical issues. Such exclusion on hyper-technical approach would not be in the public interest as it would curtail competition.

7. Contemplated the purpose of procuring goods and services by public authorities through the process of tender/ auction is to get the most competitive bids for the best product offered and opined in the present case, apart from the bidder, there was only one other tender, and exclusion of the petitioner was certainly not in the public interest, since the said exclusion was founded upon completely unjustified grounds.

The Decision held by the Court

The Honourable Delhi High Court quashed the disqualification of the Petitioner in respect of the tender in question.

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