This writ petition challenged the rejection of a public procurement bid due to the respondent not having two years of manufacturing experience as per tender conditions. The court held that experience criteria and BIS certification requirements are distinct and upheld the decision to exclude the bidder based on experience.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Sherla V.
wpl.3016.2019_9.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J.
WRIT PETITION (LODGING) NO.3016 OF 2019
Vikamshi Fabrics Pvt. Ltd. … Petitioner
Vs
Haffkine Abio-Pharmaceutical Corporation … Respondents Limited & another
Mr.Shardul Singh with Roshan S. Tanna for the Petitioner
Mr.Abhay Patki, Additional Government Pleader, for Respondent No.1
Mr.P.J. Thorat with Mr.S.R. Gupta for Respondent No.2
CORAM: S.C. DHARMADHIKARI & R.I. CHAGLA, JJ.
DATED: JANUARY 6, 2020
P.C.:
it did not fulfill the eligibility criteria prescribed in the tender notice.
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| 15. | Rubber Mackintosh, Double colour ISI Mark |
Rubber Mackintosh double colour Rubber sheeting High Polymer (55% grade A), Colour (Green, Red, Blue), Thickness- 0.4mm, Width-90cm Roll of 12 **mtr.**I.S. Certified, Double colour, water proof |
Rate per mts |
6070 | 3300 | 55000 | 983340 |
|---|---|---|---|---|---|---|---|
| 16. | Rubber Mackintosh, Double colour ISI Mark |
Rubber Mackintosh double colour Rubber sheeting, High Polymer (55% grade A), Colour (Green, Blue, Red), Thickness- 0.4mm, Width- 110cm Roll of 30colour, waterproof |
rate per mts |
75000 | 16500 | 165000 | 14625000 |
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commence from 17.11.2018 to 10.12.2018 and the date and time of opening of envelope No.1 was 13.12.2018 at 14.01 hrs. There is no dispute about this aspect of the matter. The petitioner states that it was duly qualified and eligible and, therefore, submitted its bid and claim to be a licence holder of the Bureau of Indian Standards for its rubber sheet products since 2014. The petitioner relies upon the tender conditions, particularly, clauses 2.1 and 2.3 of the tender notice which read as under:
“Eligibility criteria for this Tender: 2.1 A) Bidder must be a manufacturer/Importer having valid manufacturing and drug license for the items quoted. Henceforth only Manufacturer/Importer will be allowed as Tenderer. Distributors/Suppliers/Agents/Authorized dealers are not eligible to participate in this tender. The tenderer must have its own manufacturing facility & valid Drug manufacturing license.
Loan Licensee/Third party Licensee is not eligible
B) For items manufactured outside India, the manufacturer/Importer shall submit following documents along with tender. i) Authority letter of the original manufacturer for importing the product for which bid is offered or contract agreement between foreign manufacturer and importer.
ii) Valid import license in form 10 and Form no.41 for drugs & medical devices.
iii) C.E./USFDA certificate wherever applicable.
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iv) License to sell drugs/devices in India.
v) Bill of entries to asses that the similar product is imported in India since last 3 years.
vi) Original manufacturer’s certificate that the product is being used in country of origin or COPP.
vii) Import Export Certificate (IEC)
viii) Affidavit of importer regarding items being imported in India for last three years
ix) Bill of lading/airway bill for similar product (s) for last 3 year
x) Country of original certificate
C) The minimum annual average turnover of the bidder shall be 50% of tender cost of quoted item as indicated in Annexure D. The average of the past three years i.e. (2015-16, 2016-17, 2017-18) will be taken as qualifying criterion.
For SSI Units average turnover will be as per Govt. resolution by ………….. dated 03/02/2015. Provisions as per section 3.1.2.10 of Maharashtra Government resolution issued by department of industry dated 01.12.2016 will be applicable.
2.3 Firms must have three completed years’ experience of manufacturing and supply as on date of floating of the tender. For SSI Units 2 years’ experience is required as per Govt. resolution issued by...”
Scale Industrial unit and, therefore, it had to fulfill the eligibility
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criteria of experience of manufacturing and supply of minimal two years. Respondent No.2 does not have this two years experience. The argument further is that though a complaint was lodged that respondent No.2’s bid was unresponsive, that complaint has not been accepted. The petitioner is, therefore, forced to institute this Writ Petition as it stands excluded from the tender process by the acceptance of the bid of respondent No.2.
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prior to the date of submission of the tender.
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fallacy in the argument of Mr.Singh because the requirement is of experience of two years of manufacture and supply of the surgical non-drug items. The condition does not say that only such manufacturers can apply who have a BIS licence for the product. The fallacy in the argument is further demonstrable with reference to the Bureau of Indian Standards Act. There was a predecessor law known as The Bureau of Indian Standards Act, 1986 followed by The Bureau of Indian Standards Act, 2016. The Act itself says that it is to provide for the establishment of a national standards body for the harmonious development of the activities of standardization, conformity assessment and quality assurance of goods, articles, processes, systems and services and for matters connected therewith or incidental thereto. After the definitions, which clarify the difference between Indian Standard and the Indian Standard Institution as also, person and specification of standards, from a reading of provisions and particularly, in Chapter II shows that a person means a manufacturer, an importer, a distributor, retailer, seller or lessor of goods or article or provider of service or any other person who uses or applies his name or trade mark or any other distinctive mark on to goods can seek the licence in terms of section 13. That is titled as ‘grant of licence or
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certificate of conformity’. In the circumstances, the experience of manufacture and supply is distinct from the surgical non-drug item which is required to be supplied to respondent No.1. That has to carry an ISI mark. In the affidavit in reply filed by respondent No.1 justifying its decision, it categorically says that the grievance of the petitioner was examined by the Grievance Redressal Cell but it found no substance. The BIS certification is mandatory but that is in relation to the item. That cannot be confused with the requirement of possessing the two years’ experience. The petitioner’s argument stretches the condition to include the aspect of the grant of BIS licence. The BIS licence is dated 16.3.2018 and, therefore, according to the petitioner, it must be presumed that respondent No.2 started manufacturing the quoted items with ISI mark only from 16.3.2018. There is no basis for assuming this fact for that would mean reading something more into the tender condition which is not expressly provided therein.
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We cannot, therefore, read into this notice what the petitioner desires the Court to read. In fact, the reliance on Annexure 5, namely, Details of Manufacturing Unit at page 58 of the paperbook also carries the case no further. The licence to manufacture and supply the surgical non-drug item is a distinct requirement and that is admittedly fulfilled. It is the experience criteria which is in issue. Upon a plain reading of the tender terms and conditions, we do not think that the decision of respondent No.1 can be faulted. The decision does not require interference by this Court in its writ jurisdiction, particularly, when the interpretation of the terms is neither absurd nor arbitrary, discriminatory muchless malafide, enabling us to quash it in our writ jurisdiction. It is an interpretation of the tender conditions, which we find to be imminently possible. Once this interpretation is not required to be interferred with, for it does not result in any violation of the mandate of Article 14 of the Constitution of India, then, all the more, we are disinclined to entertain this petition. It is dismissed. No order as to costs.
(R.I. CHAGLA, J.) (S.C. DHARMADHIKARI, J.)
Digitally signed by Vishwanath Vishwanath S. Sherla S. Sherla Date: 2020.01.08 16:02:47 +0530
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3 issues framed by the court
Whether the tender authority correctly disallowed the bid of the appellant on the ground of lack of two years' experience when the requisitioned items require manufacturing experience distinct from th
Whether the抱怨 of ineligibility regarding the BIS licence falls within the bid rejection for lack of experience or if it constitutes a new ground not considered.
Whether the decision to consider the appellant's bid was arbitrary or discriminatory under Article 14 of the Constitution in the light of the tender conditions.
3 provisions across 2 enactments
Vikamshi Fabrics Pvt. Ltd.
Haffkine Abio-Pharmaceutical Corporation Limited
another
S.C. DHARMADHIKARI
R.I. CHAGLA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
