Dismissed

Forsta Medtech Pvt. Ltd., v. State of Maharashtra through Principal Secretary Ministry of Health and Family Welfare

Bombay HC19 Jun 2024WP/2666/2024

Case brief

AI extract

What is this about?

Challenge to two tenders for biomedical waste disinfection systems on the ground that UV radiation specifications contravened the 2016 Rules and CPCB guidelines. The court held the petitioner, having neither participated nor objected before bid submission, lacked locus; petition dismissed.

What did the court decide?

None granted; writ petition dismissed with no order as to costs.

Forsta Medtech Pvt. Ltd., vs State of… — Public Procurement and Tenders | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.2666 OF 2024

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Digitally signed by BASAVRAJ BASAVRAJ GURAPPA GURAPPA PATIL PATIL Date: 2024.08.20 12:30:12 +0530

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Forsta Meditech Pvt. Ltd.

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….. Petitioner

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Versus

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State of Maharashtra & Ors. ….. Respondents

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Mr. Akash Prasad through Video Conference a/w. Mr. Rishi Murarka for the petitioner

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Smt. P. H. Kantharia, Government Pleader a/w. Smt. Jyoti Chavan, Additional Government Pleader, Mr. Amar Mishra, AGP for respondent Nos.1 to 3 – State

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Mr. Kaustubh Patil for respondent No.4, through Video Conference

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CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. & AMIT BORKAR, J.

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RESERVED ON : AUGUST 5, 2024 PRONOUNCED ON : AUGUST 20, 2024

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JUDGMENT (PER : CHIEF JUSTICE)

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1. Heard learned counsel representing the respective parties.

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2. Proceedings of this petition instituted under Article 226 of

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the Constitution of India, assail the validity of tenders, dated 28^th

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December 2023 and 14^th February 2024, issued by the National

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Health Mission - respondent No.3 for Civil Hospital, Washim and

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Civil Surgeon Office, Sangli, respectively, in respect of the work relating to Ultra Violet Radiation & Microwave Dual Disinfection System and Ultra Violet Radiation & Microwave Dual Disinfection System with Shredder.

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3. Challenge to the impugned tenders in this petition has been made primarily on the ground that technical specifications as provided in the impugned tenders for Bio-Medical Waste Disinfectant System is contrary to the provisions contained in BioMedical Waste Management Rules, 2016 (hereinafter referred to as the Rules 2016 ) framed by the Ministry of Environment, Government of India vide Notification, dated 28^th March 2016 under Section 6, 8 and 25 of the Environment (Protection) Act, 1986 and also against the guidelines issued by the Central Pollution Control Board (hereinafter referred to as the CPCB ) for Management of Healthcare Waste as per Rules, 2016.

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4. The impugned technical specifications as contained in the tender, dated 28^th December 2023, is as follows:

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“TECHNICAL SPECIFICATIONS

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Biomedical Waste Disinfection System microwave based along with advance UVR technology-

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Machines shall mainly comprise the following main components.

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i) Support unit with wheels and arrangement to hold cavity, magnetron, variactransformers and pump and motor etc.

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ii) Cavity (Main treatment unit) iii) Magnetron and accessories iv) Measuring, monitoring and control software and Hardware. v) UVR process cycle.”

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5. Similarly, the tender condition which is under challenge in respect of tender, dated 14^th February 2024 is extracted hereinbelow:

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“Detail Specifications

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BIOMEDICAL WASTE DISINFECTION SYSTEM MICROWAVW BASED ALONG WITH ADVANCE UVR TECHNOLOGY

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Machines shall mainly comprise the following main components.

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i) Support unit with wheels and arrangement to held cavity, mag-

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netron, variac transformers and pump and motor etc.

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ii) Cavity ( Main treatment unit)

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iii) Magnetron and accessories

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iv) Measuring, monitoring and control software and Hard ware. v) UVR process cycle.”

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6. Learned Counsel for the petitioner, while impeaching the impugned tender condition, has primarily urged that use of ultra violet radiation technology is neither proved nor is documented for the purpose of treatment of bio-medical waste and further that such technology is superfluous to the need of the respondent authorities. It has also been argued on behalf of the petitioner that use of ultra violet radiation technology for treatment of biomedical waste which is to be deployed in terms of the subject

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tenders is ineffective and inadequate and that insistence of inclusion of ultra violet radiation technology by the respondent has resulted in exclusion of many market players/suppliers of the product and hence it is not tenable.

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7. The emphasis of the learned counsel for the petitioner to challenge the impugned tender conditions is that the ultra violet radiation technology for treatment of bio-medical waste has not been prescribed for in the 2016 Rules framed by the Government of India further clarified by the guidelines issued by the CPCB in respect of 2016 Rules.

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8. Our attention has been drawn in this regard to certain entries in Schedule-1 appended to the 2016 Rules according to which for disposal of microbiology, biotechnology and other clinical laboratory waste, autoclave safe plastic bags or containers are to be used and further that such disposal should be done with a technology where such waste is pre-treated to sterilize with nonchlorinated chemicals on-site as per National AIDS Control Organization or World Health Organization Guidelines and thereafter such waste is to be incinerated. The relevant extract of Schedule-1 appended to 2016 Rules on which emphasis has

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been laid by the learned counsel for the petitioner is extracted

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herebelow:

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(h)Microbiology, Biotechnology and other clinical laboratory waste : Blood bags, Laboratory	Autoclave safe plastic bags or containers	Pre-treat to sterilize with non-chlorinated chemicals on-
cultures, stocks or		site as per
specimens of		National AIDS
microorganisms, live or		Control
attenuated vaccines, human and animal cell cultures used		Organisation or World Health
in research, industrial		Organisation
laboratories, production of		guidelines
biological, residual toxins, dishes and devices used for cultures.		thereafter for Incineration.

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9. Reliance has also been placed by the learned counsel for the petitioner on the guidelines issued by the CPCB as per 2016 Rules in respect of disposal of waste relating to microbiology, biotechnology and other clinical laboratory waste. According to learned Counsel for the petitioner the said guidelines clearly provide that for disposal of such waste, pre-treatment by disinfection is to be done before the waste is handed over to CBWTF Operator and further that pre-treatment can be done by autoclave/microwave/hydroclave. The guidelines also provide that pretreatment of such waste can also be done by using nonchlorinated chemical disinfectants like aldehydes, lime based powders or solutions, ozone gas, ammonium salts and phenolic

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compounds. Said guidelines in respect of microbiology,

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biotechnology and other clinical laboratory waste, are as under:

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“Type of Waste : Yellow (h) Microbiology, Biotechnology and Other Clinical Laboratory Waste :

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Segregation :

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Microbiology, Biotechnology and other clinical laboratory waste, waste blood bags (containing date expired or contaminated blood), Laboratory cultures, stocks or specimen of microorganisms, live or attenuated vaccines, human cell cultures used in research, industrial laboratories, production of biological, residual toxins, dishes and devices used for cultures. This includes plastic culture plates and other highly infectious wastes.

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Type of bag and container :

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Collect the waste in yellow coloured non chlorinated plastic bag and store in yellow coloured container

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Treatment and Disposal :

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For HCF having linkage with CBWTF

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Pre-treatment by disinfection before handing over the waste to CBWTF operator. Pretreatment can be done by autoclave / microwave / Hydroclave.

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Pre-treatment can also be done by using non-chlorinated chemical disinfectants like aldehydes, lime based powders or solutions, ozone gas, ammonium salts and phenolic compounds.

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The Pre-treated waste bags should be handed over to CBWTF operator on daily basis.

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For HCF having own treatment and Disposal facility

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Pre-treated waste should be disposed off by a HCF by installing twin chambered compact incinerator with 2 seconds retention time in secondary combustion chamber and adequate air pollution control devices to comply with revised emission norms prescribed under BMW Management Rules, 2016”

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10. According to learned counsel for the petitioner since technical specifications as prescribed in the impugned tenders do not conform to the norms as set out in the 2016 Rules and the guidelines promulgated by CPCB, use of the technology as per the prescription in the impugned tenders is unlawful and the same cannot be permitted.

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11. Opposing the writ petition, learned State Counsel Mrs. P. H. Knatharia has raised a preliminary objection as regards the maintainability of the writ petition by stating that since the petitioner did not participate in the tender process and had not even raised any objection before the authorities concerned, before the last date of submission of bids, hence, at this juncture, when the entire tender process has been completed, such a challenge cannot be entertained. In this view, the submission by Mrs. Kantharia is that entertaining this petition at this juncture will not be in public interest and further that the petitioner, in fact does not have any locus to challenge the tenders.

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12. Having heard learned counsel for the parties and having perused the records available before us, we are of the considered opinion that the writ petition cannot be entertained at this

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juncture at the behest of the petitioner for the reasons which follow.

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13. In respect of tender, dated 28^th December 2023, the last date of submission of tender was 8^th January 2024 on which date the tender was scheduled to be opened. Various tenderers participated in the said tender pursuant to the tender notice dated 28^th December 2023 and as informed by the learned State Counsel the tender was opened as scheduled and even work order has been issued on 25^th January 2024. It has also been stated that even the contract has also been executed and the work under the subject tender has started after installation of necessary equipments etc. and accordingly, since the petitioner did not participate in the tender, this petition at its behest, cannot be entertained.

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14. Similarly, the tender notice in respect of other tender was issued on 14^th February 2024 and the last date of submission of tender was 28^th February 2024 which was the date of opening of the tender as well. In respect of this tender as well after opening the tender the work order has been issued on 13^th March 2024 and after installation of equipments the work has also started.

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15. The instant writ petition was lodged on 25^th April 2024 which was numbered, after removal of office objections by the petitioner, on 7^th May 2024. The petitioner, admittedly, has not participated in either of these two tenders. The petition has also been filed only after issuance of the work order and after the work in respect of subject tender has already started.

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16. It is also noteworthy that in respect of subject tenders, before the last date of submission of bids, no objection was ever raised by the petitioner before the tendering authority neither they participated in pre-bid meeting raising such objections as are being raised in the present writ petition. The petitioner ought to have raised his objection prior to the last date of submission of bids, may be in pre-bid meeting and having not done so, in our opinion, the petitioner loses its locus to challenge the tender at this juncture.

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17. Hon'ble Supreme Court in National Highways Authority of India Vs. Gwalior-Jhansi Expressway Limited¹ has clearly

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held that a party who fails to participate in the tender process, cannot be permitted to challenge the validity of the tender

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1 (2018) 8 SCC 243

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documents and further that such a party cannot be heard to contend that it had acquired any right whatsoever. The Hon'ble Supreme Court has further stated that only the entities which participate in the tender process pursuant to the tender notice, can be allowed to make grievance about the non-fulfillment or breach of any of the terms and conditions of the tender documents. Said observations have been made by Hon'ble Supreme Court in paragraph 20 of the report, relevant portion of which is extracted hereinbelow:

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“20. ……………………. Having failed to participate in the tender process and, more so, despite the express terms in the tender documents, validity whereof has not been challenged, the respondent cannot be heard to contend that it had acquired any right whatsoever. Only the entities who participate in the tender process pursuant to a tender notice can be allowed to make grievances about the non-fulfilment or breach of any of the terms and conditions of the tender documents concerned. The respondent who chose to stay away from the tender process, cannot be heard to whittle down, in any manner, the rights of the eligible bidders who had participated in the tender process on the basis of the written and express terms and conditions. At the culmination of the tender process, if the respondent had not participated, in law, the offer submitted by the eligible bidders is required to be considered on the basis of the stated terms and conditions. Thus, if the claim of the respondent was to be strictly adjudged on the basis of the terms and conditions specified in the subject tender document, the respondent has no case whatsoever.”

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18. It is also settled principle of law that so far as formulating conditions of tender is concerned, greater latitude should be given

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to the tendering authority unless action of the tendering authority

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is malicious or it amounts to misuse of powers, interference by

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the Court will not be appropriate. Hon'ble Supreme Court in the case of Uflex Limited Vs. Government of Tamil Nadu & Ors.² relying upon its earlier judgment in the case of Michigan Rubber (India) Ltd. Vs. State of Karnataka³ has enunciated the aforesaid principle.

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19. Since, admittedly, the petitioner, before last date of submission of bid in respect of subject tenders did not raise any objection with the tendering authority, neither had it participated in the tender process, in our opinion, the petitioner will have no locus to challenge the tender document, especially when the entire tender process has been completed, the work orders have been issued, equipments and machineries have been installed and the work has already been commenced. For these reasons we are of the opinion that at the instance of the petitioner, this petition cannot be entertained.

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20. The case-laws cited by the learned counsel for the petitioner in the case of Tata Cellular Vs. Union of India⁴ , Yikhyao Lotha

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2 (2022) 1 SCC 165

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3 (2012) 8 SCC 216

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4 (1994) 6 SCC 651

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Vs. State of Nagaland⁵ , Mohammad Shahbaj Alam Vs. State of Jharkhand⁶ , Health-O-Wonder Pvt. Ltd. Vs. The

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Commissioner Medical Education and Ayush, Maharashtra⁷ , Kalimpong Land and Building Ltd. & Anr. Vs. State of W.B. and Ors.⁸ and M/s.Forsta Medtech Pvt. Ltd. Vs. State of Maharashtra⁹ has no relevance as we have already held that the petitioner does not have any locus to challenge the tenders.

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21. Resultantly, the writ petition fails, which is hereby dismissed.

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22. However, there will be no order as to costs.

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(AMIT BORKAR, J.) (CHIEF JUSTICE)

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