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Progressive Udyog Ltd. And Another v. Union Of India Thru Secy. Ministry Of H.R.D. And Another - WRIT - C No. 55746 of 2006  RD-AH 17939 (18 October 2006)
Court No. 29
WP No. 55746 of 2006
Progressive Udyog Ltd. and another ... Petitioners
Union of India and another ... Respondents
Hon'ble Yatindra Singh, J
Hon'ble Ran Vijai Singh, J
1. Sir Sunder Lal Hospital (the Hospital) is attached with the Institute of Medical Sciences, Varanasi (the Institute). This Institute is affiliated with the Banaras Hindu University, Varanasi (the University). The University advertised for installation of 64-Slice (Multi Row Detector) CT Machine on 14th May 2006 . The last date for submitting tenders was 24.6.2006. The technical bids were to be opened on the same date. A pre-bid conference was held on 15.6.2006 and some conditions were further clarified. Three parties submitted their tenders on the last day namely 24.6.2006 and the technical bids were also opened on the same date. Out of the three, the technical bid of one of them namely of Ultra Scan firm was rejected. Ultra Scan firm had filed writ petition no. 51342 of 2006, which was dismissed on 26.9.2006. After rejection of technical bids of Ultra Scan, two parties namely, the petitioner and respondent no. 7 remained in the fray. The financial bids were opened on 31st August 2006 and the financial bid of the petitioner was rejected on the ground that it is incomplete; hence the present writ petition.
POINTS FOR DETERMINATION
2. We have heard Sri Anil Tiwari, counsel for the petitioners, Sri VB Singh, senior advocate assisted by Sri HP Singh counsel for the Institute and the University and Sri Jagrit Singh, counsel for respondent no.7. The counsel for the University has produced the original record and has supplied photostat copies of the relevant part of the records. With the consent of the parties the writ petition is being decided finally at this stage.
3. The following points arise for determination:
(i) Whether the minutes of pre-bid meeting are incorrect and were finalised after the tenders were filed.
(ii) Whether the action of the University in selecting Respondent no. 7 is vitiated by malice in fact.
(iii) Whether the tender of the petitioner ought to have been accepted as its rates are lower.
(iv) Whether the tender of the petitioner could be rejected on the ground that it is incomplete.
POINT 1: MINUTES -- NOT INCORRECT
4. The counsel for the petitioner submitted that the minutes dated 15.6.2006 are incorrect. In order to support his submission, he pointed out to the two copies of the same resolution in the record.
5. It is correct that there are two copies of the resolution. In the first copy there are certain corrections and is signed by three members of the committee. It is also signed by person who have given the tender.In the second copy, there are no correction and it is signed by all members of committee. There is no material difference between the first and the second copy. It appears that the first one was the draft in which corrections were made then the fair copy was prepared. The minutes are not incorrect.
6. The counsel also submitted that the parties did not sign on 15.6.2006. They have signed the resolution the on 24.6.2006 after the tenders were submitted.
7. It is correct that the tenderers have singed the minutes of 15.6.2006 on 24.6.2006. However, the minutes itself states that tenderers had left. It appears that it is because of this they did not sign the minutes on 15.6.2006 and had singed it on 24.6.2006. The petitioner never complained that it had signed the minutes of the meeting held on 15.6.2006 after the tenders were filed before the financial bids were opened or even after that. This complaint is being raised for the first time in this writ petition. There is no merit in this submission. The minutes dated 15.6.2006 are correct and they were in the knowledge of the parties. They were signed before the tenders were filed.
POINT 2: THERE IS NO MALICE IN FACT
8. The counsel for the petitioner submitted that the action of the respondents is vitiated by malice in fact. No one has been impleaded in personal capacity. There is nothing on the record to show that there was any malice in fact. This plea of the petitioner is has no merit and is rejected.
POINTS 3 & 4: PETITIONER'S TENDER-- WRONGLY REJECTED
9. The counsel for the petitioners submitted that rates submitted by the petitioner are much lower than the rate given by respondent no. 7 and as such the tender of the petitioner ought to have been accepted. In this regard, the counsel for the respondents submitted that the tender of the petitioner is unviable and can not be accepted. In support of his submission they relied upon the following term and condition of the tender notice:
'The University reserves the right not to consider unviable financial bids if the rates of CT investigations are quoted so low in conjunction to investment which may made the project unviable in financial terms.'
It is not necessary to decide the rival contention of the parties on this point. It is for the committee to consider it first. The committee has neither considered the rate of the petitioner nor question of viability of the bid as it had rejected the petitioner's bid on the ground that is incomplete.
10. The financial bid of the petitioner was rejected on the ground that it is incomplete. The relevant part of the minutes of the meeting dated 31.8.2006 by which the tender of the petitioner was rejected is as follows:
'The financial bid submitted by M/s Progressive Udyog Ltd., Kolkata through its authorised representative, Shri Ashuman Raj from Varanasi is found incomplete as the bidder has not mentioned the rates for various investigative charges performed by 64 Slice CT Scan Machine with contrast media which were clearly indicated in tender document as (i) cost of contrast medium (ii) cost of imaging films and (iii) cost of disposable of standard and safe brand. This was a mandatory requirement and the bidder was fully aware of this condition, which they have also agreed in the meeting held on 15.6.2006 at the time of Pre-bid conference & on 24.6.2006 at the time of opening of technical bid for wet leasing of 64 Slice (Multi Row Detector) CT System for the department of Radio Diagnosis & Imaging, IMS, BHU. The committee, therefore, found it difficult to consider the bid of this concern as incomplete information have been submitted by this firm and resolved that no further action for awarding the tender to this concern be entertained.'
The question is, whether there is any such condition or not.
11. The relevant part of the terms and conditions of the tender notice is as follows:
'The approved rates of various CT investigations to be conducted by the licensee on 64 - Slice CT machine would include (i) Cost of contrast Medium (ii) Cost of Imaging Films and (iii) Cost of disposables of standard & safe brand.'
12. This was further clarified in the pre-bid meeting dated 15.6.2006. The relevant part of the minutes of pre-bid is as follows:
'It was agreed upon that ionic contrast will be used for all scan cases except for cardiac scan where non-ionic contrast will have to be used. The actual cost of non-ionic contrast will have to be borne by the patient. it was suggested that the bidders may quote rates for CT scans without contrast, with ionic contrast & with non-ionic contrasts.'
13. The terms and conditions of tender are clear. The parties were required to give only one bid that is the one that is inclusive of all charges (including the contrast medium). In the pre-bid meeting a further clarification was given as to when the contrast medium will be ionic and when non-ionic. In some cases non ionic charges were to be paid by the patient. it was suggested in this meeting that parties may quote rates for without contrast or with ionic or non-ionic contrast but this was not mandatory condition. it was at the option of the tenderers. It is for this reason that the following language was used:
'It was suggested that the bidders may quote rates for CT scans without contrast, with ionic contrast & with non-ionic contrasts.'
In case it was a mandatory condition then the wordings would have been:
'The parties shall quote rates for CT scans without contrast, with ionic contrast & with non-ionic contrast.'
14. the language of the terms and conditions and the minutes of the pre-bid meeting shows that the mandatory condition was that the rates should be inclusive of all charges though parties could quote separately also and in such an event it could not be rejected. The petitioner's tender was not incomplete. Its rejection as incomplete is illegal.
15. If there was some confusion in the words used by the University then the petitioner can not be penalised for the same. The University either ought to have considered the case of the petitioner or should have re-advertised.
16. Our conclusions are as follows:
(a) The minutes correct. They were shown and signed by the tenderers before depositing the tenders.
(b) There is no malice in fact.
(c) The tender of the petitioner was not incomplete and could not be rejected.
17. In view of our conclusions, selection of respondent no. 7 is quashed. The University may reconsider the matter after considering the bid of the petitioner. It will also be open to the University to re-advertise and call for fresh tenders. With these observations the writ petition is allowed.
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