Petitioner challenged rejection of its bid for milk analyzers in a tender by Kerala Co-operative Milk Marketing Federation. Court held rejection was bona fide based on live demo defects and dismissed writ.
None granted. The writ petition against the rejection of the technical bid is dismissed.
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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
WP(C) NO. 18203 OF 2021
PETITIONER:
INDIFOSS ANALYTICAL PVT LTD. F/1, 2 & 3 SCIENCE SQUIRE, ABOVE RELIENCE FRESH, SCIENCE CITY ROAD, SOLA, AHMEDABAD, GUJARAT-380060, REPRESENTED BY DEEPAK.N.NAIR, SERVICE ENGINEER, SERVICE OFFICE, INDIFOSS ANALYTICAL PVT LTD, EDATHALA, ALUVA
BY ADVS. K.JAJU BABU (SR.) K.M.MUHAMMED HUSSAIN K.V.SREE VINAYAKAN
RESPONDENTS:
1 KERALA CO-OPERATIVE MILK MARKETING FEDERATION KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004, REP BY ITS DIRECTOR
2 THIRUVANANDAPURAM CO-OPERATIVE MILK PRODUCERS
UNION LIMITED,
KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004, REP BY ITS MANAGING DIRECTOR
BY ADVS. M.N.RADHAKRISHNA MENON LATHA ANAND
THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON 17.09.2021, THE COURT ON 30.09.2021 DELIVERED THE FOLLOWING:
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P.B.SURESH KUMAR, J.
W.P.(C) No.18203 of 2021
Dated this the 30th day of September, 2021
J U D G M E N T
The second respondent, a Co-operative Milk Producers Union under the first respondent Co-operative Milk Marketing Federation, invited online bids for installation, testing and commissioning of three Fourier Transformation Infrared Technology (FTIR) based Milk Analyzers for use in their dairies. Ext.P2 is the tender notice issued by the second respondent in this regard. In terms of Ext.P2 tender notice, the tenderers were required to submit their technical and financial bids separately. Only two tenderers submitted bids in response to Ext.P2 invitation, one by the petitioner and the other by M/s.Everest Instruments Private Limited. The committee constituted by the second respondent for evaluation of the
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technical bids rejected the technical bid submitted by the petitioner. Ext.P13 is the report to that effect made available by the second respondent in the e-tender portal. Ext.P13 is under challenge in the writ petition. The petitioner also seeks directions to the second respondent to reconsider the technical bid submitted by them. The case set out by the petitioner in the writ petition is that they had supplied FTIR based milk analyzers pursuant to similar tender processes to various other Milk Producers Unions under the first respondent federation and those milk analyzers are being used satisfactorily by those Milk Producers Unions and therefore, the conduct of the second respondent in rejecting the technical bid submitted by the petitioner is arbitrary and also vitiated by malice.
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technically inadequate. The minutes of the meeting of the committee constituted for evaluation of the technical bids on 10.8.2021 in connection with the live demonstrations of the equipments offered by the tenderers is produced along with the statement as Ext.R2(a). Ext.R2(a) minutes is prepared in the form of a comparative chart of the performances of the equipments. Similarly, Ext.R2(b) is the minutes of the meeting
of the committee which has rejected the technical bid submitted by the petitioner.
pointing out that several other State Milk marketing Federations have qualified the equipment offered by the petitioner and disqualified the equipment offered by M/s.Everest Instruments Private Limited. It was also pointed out in the said affidavit that the observations recorded in the comparative chart prepared as part of Ext.R2(a) minutes are incorrect.
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petitioner as also the learned Standing Counsel for the respondents.
issued by the Dairies under the first respondent federation to the effect that the equipment offered by the petitioner is being used by all of them satisfactorily, the learned Senior Counsel for the petitioner contended that the decision of the second respondent to reject the technical bid submitted by the petitioner is arbitrary and malicious. According to the learned Senior Counsel, if other dairies under the first respondent federation could satisfactorily make use of the equipment offered by the petitioner, there is absolutely no reason why the second respondent shall not make use of the same. It was pointed out by the learned Senior Counsel that the decision of the committee to disqualify the equipment offered by the petitioner, in the circumstances, can only be arbitrary. The second respondent had in fact floated a tender earlier for
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procuring the very same equipment with a condition that only those who have supplied a minimum of 15 equipments in a year during the last three years will be eligible to participate in the tender process and the said stipulation in the tender notice was challenged by M/s.Everest Instruments Private Limited before this Court in W.P.(C) No.1707 of 2021, and this Court has set aside the said eligibility criterion as arbitrary. The second respondent has not challenged the decision of this court in the said case in appeal. The conduct of the second respondent in not challenging the decision of this Court in the said case was highlighted by the learned Senior Counsel to reinforce his contention that the decision of the second respondent in rejecting the technical bid of the petitioner is vitiated by malice, indicating that the second respondent has accepted the decision of this court in W.P.(C) No.1707 of 2021 with a view to procure the equipment offered by M/s.Everest Instruments Private Limited.
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the respondents submitted that the decision to reject the technical bid submitted by the petitioner being one taken by the committee constituted for evaluation of the technical bids submitted by the tenderers on the basis of the live demonstration of the equipments offered by the tenderers simultaneously, that too, in the presence of the officers of the second respondent in its engineering, production and quality control departments, it cannot be said that the decision of the committee in rejecting the technical bid submitted by the petitioner is arbitrary or malicious.
live demonstrations carried out by the tenderers as stated in the statement filed by the second respondent, are the following:
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“a. The repeatability of petitioner's instrument was not as per the tender condition that the CV should not be less than 0.25%. Hence the petitioner's instrument was found to be not satisfactory and not as per the tender conditions (point 11(b) of the Technical Specifications).
b. During the demonstration, it was confirmed that the parameters line pH, NPN CU were not available in the instrument of the petitioner i.e, MilkoScan FT-1. In the tender document, the petitioner had confirmed that these features are available. Hence the petitioner's equipment was not as per the standards claimed in his own bid.
c. The technical specification in the tender document, provides that the instrument is to be used to analyse milk, milk products and it specifies that it should be able to analyse milk (raw and processed), cream whey, yoghurt and ice cream mixes. Among the above products like curd yogurt etc., are high viscous products. It is submitted that as far the machine of the petitioner is concerned, it cannot directly analyse the high viscous products. The products would have to be diluted before being fed into the instrument. As a result, a separate procedure to use the dilution in various ranges and products are needed. Consequently, the instrument also displays the results viz a viz the diluted samples and a further calculation is required to arrive at the final result. This would be cumbersome in day to day usage and this respondent would not be able to obtain real time results. This is essential as the number of samples analysed is large in number and the entire analysis would have to be completed within the shortest time possible. With the petitioner's
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instrument, the samples would have to be diluted first and then tested. The result could also not be obtained in real-time, but the result would have to go through further calculations to arrive at the final result.”
The reasons recorded by the committee constituted for evaluation of the bids for rejecting the technical bid submitted by the petitioner as disclosed in Ext.R2(b) minutes read thus :
“ Lactoscope FTA proposed by Everest Instruments Pvt Ltd
Milkoscan FTI proposed by Indifoss Pvt. Ltd.
The Repeatability of Milkoścan FT-1, the basic qualification criteria, was not as per tender terms on multiple samples i.e., CV should be less than 0.25% and was not satisfactory.
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3. Milkoscan FT1 can detect only 14 adulterants.
It was witnessed in the demo that the Lactoscope FTA proposed by M/s Everest Instruments Pvt Ltd is clearly advantageous over the Milkoscan FT1 proposed by Indifoss Pvt Ltd. Moreover Milkoscan FT1 do not qualify the mandatory criteria of repeatability is CV less than 0.25%. So the committee recommended for rejecting the technical bid submitted by M/s Indifoss analytical and opening financial bid submitted by M/s Everest Instrument only.”
As noted, the committee constituted for evaluating the technical bids has called upon the tenderers to demonstrate
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the equipments offered by them and the tenderers have demonstrated their equipments before the members of the committee as also the officers of the second respondent in its engineering, production and quality assurance departments. The materials indicate that the comparative chart of the performance of the equipments offered by the tenderers was prepared by the committee with the concurrence of the officers of the second respondent who were present at the time of the demonstrations of the equipments as also the representatives of the tenderers, for all of them have put their signatures in Ext.R2(a) minutes indicating their acceptance to the defects of the equipments recorded therein. The finding of the committee is that the equipment offered by the petitioner is not one conforming to the tendered stipulations and that the equipment offered by M/s Everest Instruments Private Limited is a better one. Of course, in the reply affidavit filed by the petitioner, they have taken the stand that the defects noted by the committee in Ext.R2(a) minutes are not defects at all.
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Similarly, the petitioner has taken the stand that similarly placed milk producers unions have disqualified the equipment offered by M/s Everest Instruments Private Limited and procured the equipment offered by the petitioner. Should this Court be justified in interfering with the decision of the second respondent in rejecting the technical bid submitted by the petitioner on those grounds is the question that needs to be answered. As noted, the decision to reject the technical bid submitted by the petitioner was taken by the committee constituted for the said purpose with the concurrence of the officers of the second respondent who were responsible for production and quality control of their products. Such a decision, according to me, cannot be said to be arbitrary or malicious merely for the reason that similarly placed milk producers unions have chosen to procure a different equipment for their requirements. That apart, public bodies like the second respondent in the case on hand should certainly have the discretion to decide as to the equipments suitable for their
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needs, and merely for the reason that a similarly placed body has chosen to procure a particular equipment, they cannot be compelled to procure the same equipment. True, at times, they may go wrong, but that, according to me, is no reason for this Court to interfere with such a decision, if the same is one taken bona fide . In the said view the matter, I do not find any merit in the writ petition and the same is accordingly dismissed.
Sd/P.B.SURESH KUMAR, JUDGE.
YKB
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APPENDIX OF WP(C) 18203/2021
PETITIONER'S EXHIBITS
| Exhibit P1 | THE TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF THE PETITIONER COMPANY |
|---|---|
| Exhibit P2 | THE TRUE COPY OF THE TENDER NOTIFICATION DATED 3.7.2021 ISSUED BY THE 2ND RESPONDENT |
| Exhibit P3 | THE TRUE COPY OF THE RECEIPT EVIDENCING THE TENDER SUBMISSION DATED 17.7.2021 |
| Exhibit P4 | THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 18.1.2021 ISSUED BY THE ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT KOTTAYAM DAIRY |
| Exhibit P5 | THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 19.1.2021 ISSUED BY THE ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT KATTAPANA DAIRY |
| Exhibit P6 | THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 19.1.2021 ISSUED BY THE ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT THRISSUR DAIRY |
| Exhibit P7 | THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 19.2.2021 ISSUED BY THE ERNAKULAM REGIONAL CO-OPERATIVE |
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MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT PRODUCTS DAIRY, EDAPPALLY
Exhibit P8 THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 19.1.2021 ISSUED BY THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT KOZHIKODE DAIRY Exhibit P9 THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 19.1.2021 ISSUED BY THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT MALAYORA DAIRY
Exhibit P10 THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 03.02.2021 ISSUED BY THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT WAYANAD DAIRY
Exhibit P11 THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 11.2.2021 ISSUED BY THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LIMITED FOR THE INSTALLATION OF FTIR BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT PALAKKAD DAIRY
Exhibit P12 THE TRUE COPY OF THE PERFORMANCE CERTIFICATE DATED 20.1.2021 ISSUED BY THE CENTRAL PRODUCTS DAIRY, PUNNAPRA , ALAPPUZHA FOR THE INSTALLATION OF FTIR
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BASED MILK ANALYZER/MILK AND MILK PRODUCTS TESTING EQUIPMENT AT PALAKKAD DAIRY
Exhibit P13 THE TRUE COPY OF THE REPORT REGARDING THE REJECTING OF THE TENDER SUBMITTED BY THE PETITIONER DATED 2.9.2021 ISSUED BY 1ST RESPONDENT
Exhibit P14 THE TRUE COPY OF THE E-MAIL DATED 2.9.2021 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT
Exhibit P15 THE TRUE COPY OF THE JUDGMENT OF THIS HONORABLE COURT IN WPC NO.1707/2021 FILED BY THE EVEREST INSTRUMENTS PVT LTD, AHMADABAD, GUJARAT
Exhibit P16 THE TRUE COPY OF THE LIST SHOWING ACCEPTANCE OF THE PETITIONER'S BID AND REJECTION OF THE EVEREST INSTRUMENTS PVT LTD
Exhibit P17 THE TRUE COPY OF THE REJECTION LETTER DATED 31.10.2020 ISSUED BY THE GOVERNMENT OF PUNJAB REJECTING THE EQUIPMENT OF M/S.EVEREST INSTRUMENTS PVT.LTD.
RESPONDENTS' EXHIBITS
Annexure R2(a) TRUE COPY OF THE MINUTES OF THE MEETING DATED 10.08.2021
Annexure R2(b) TRUE COPY OF THE MINUTES OF THE TECHNICAL COMMITTEE MEETING DATED 31.08.2021
3 issues framed by the court
Whether the decision of the committee to reject the petitioner's technical bid for FTIR milk analyzers was arbitrary or malicious.
Whether a public body can be compelled to procure equipment simply because a similarly placed body has chosen a different equipment.
Whether the defects found during live demonstrations justified the rejection of the technical bid.
Colour shows how this judgement treated each authority
M/s.Everest Instruments Private Limited vs 2nd RespondentReferred¶40
W.P.(C) No.1707 of 2021
2 provisions across 2 enactments
INDIFOSS ANALYTICAL PVT LTD
KERALA CO-OPERATIVE MILK MARKETING FEDERATION KSHEERA BHAVAN
THIRUVANANDAPURAM CO-OPERATIVE MILK PRODUCERS UNION LIMITED
P.B.SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
