these factors, it cannot be said that the conduct of the petitioner was not completely transparent or that it had failed to inform the respondent in advance about lower prices having been quoted in different contracts. Furthermore, the respondent has not seriously dispute the petitioner's plea that, as per general practice, contractors supplying sophisticated medical technology, such as the petitioner, earn more money from the consumables that are sold. As a result, the price quotations made by the bidders are made by taking the quantity of consumables, forming part of the contract, to arrive at the optimum pricing arrangement for themselves and the customers. To put it plainly, in the case of orders seeking higher quantities of consumables, such as that of the NCI, the price of consumables would be decreased and, in cases such as the respondent's where the number of consumables sought were less, the price of the consumables would see a relative increase. When this was already known to the respondent, I am of the view that it cannot be permitted to conduct a mere superficial comparison of the pricing of different tenders, without taking into consideration the different parameters contained therein, to force a contractually unspecified obligation upon the petitioner to reveal details of previous contracts at the time of conducting price negotiations. Finally, and most significantly, as already noted above, there is absolutely no provision in the TED which makes it mandatory for the shortlisted bidder to disclose previous contracts at the stage of price negotiations. Therefore, I am of the view that in the absence of any such contractual obligation, it would be unreasonable to stretch the applicability of a penalty clause, being Clause 48 of the TED, to penalize the petitioner and hold it guilty thereunder of ‘corrupt and fraudulent practice’.”
