@JUDGMENTTAG-ORDER
B.S. Patil, J.@mdashThe third respondent - Karnataka Drugs Logistics and Warehousing Society, which is a Government of Karnataka Undertaking responsible for procuring and supplying drugs to various Government hospitals, invited tenders by way of e-Procurement vide Tender Notification dated 26.12.2013 for procuring 50 sets of surgical equipments known as "Double Puncture Laparoscope".
2. In response to the said Tender Notification, petitioner and 5th respondent and also another Company submitted their bids in two covers containing technical and financial bids. The technical bid of 3rd party - M/s. B. Braun Medical India Private Limited was rejected and the technical bids of petitioner and 5th respondent were held to be responsive. Thereafter, technical bids of petitioner and 5th respondent were opened. Petitioner was found to be the lowest bidder. It was graded as ''L1'' and after scrutiny, the Tender Scrutiny Committee considering the objections filed by 5th respondent against the bid of petitioner and by the petitioner against the bid of 5th respondent overruled the objections filed by 5th respondent and found that petitioner complied with the conditions of Tender Notification. Accordingly, a decision was taken to award the Contract in favour of petitioner.
3. Aggrieved by the decision taken to award the Contract in favour of petitioner, 5th respondent filed an appeal before the appellate authority. The appellate authority, vide its order dated 30.9.2014 allowed the appeal setting aside the decision of the Tender Accepting Authority dated 19.7.2014 and the Notification awarding Contract as per Annexure ''G'' dated 22.7.2014 issued by 3rd respondent herein. In this background, petitioner has approached this Court challenging the order passed by the appellate authority.
4. Learned Senior Counsel appearing for petitioner Sri Sham Prasad has urged the following contentions:
"(a) The Tender Scrutiny Committee and the Tender Accepting Authority have duly considered the objections raised by 5th respondent and have overruled the same by holding that petitioner did fulfill all the criteria pertaining to the qualification and therefore, the appellate authority was not justified in interfering with the decision taken.
(b) Inviting the attention of the Court to the proforma for Qualification Criteria for the manufacturer, which forms part of the tender document, he submits that it was not a mandatory requirement to have the signature of manufacturer in proof of 80% performance required to be uploaded in the form of supply order, purchase order, invoice copies etc., He points out that the proforma prescribed as per Section 12 does not require the signature of manufacturer but provides only for the signature and seal of the Tenderer and therefore, it is contended that the appellate authority was not justified in interfering in the matter on the ground that in the Proforma stipulated by Section 12, the signature of the manufacturer was not found but the signature of the petitioner as tenderer was only found.
(c) It is his next contention that as regards End-User Certificate, which is the requirement spelt out in Section 12(A) of the Tender condition contained in document No. (A), it is urged that petitioner had indeed furnished the details regarding 30% Criteria for having supplied the equipments in as much as 24 equipments for the last three years from the date of Tender Notification, out of which 22 equipments supplied to the very third respondent had been uploaded, the same having been distributed by the third respondent to various District Centres and Primary Health Centres, their satisfactory functioning and working of the equipments was within the knowledge of the third respondent and was available for scrutiny. Without considering this aspect, the appellate authority erroneously came to the conclusion that the petitioner had not fulfilled the said Criteria.
(d) It is also urged by taking the Court through the statement of objections filed by third respondent and the documents annexed thereto particularly, Annexure ''R-10'' that Double Puncture Laparoscopes with accessories totally 50 sets had been supplied by the petitioner as per Supply Order dated 23.4.2012 to third respondent and the satisfactory use and performance of the equipment has been acknowledged by third respondent and that the said fact was indeed mentioned in the particulars required to be filled in, as per the Proforma mentioned at Section 12.
(e) Inviting the attention of the Court to Clause 22.3 of the Tender conditions of the instructions to tenderers contained in Annexure ''A'', learned counsel for the petitioner submits that the purchaser may waive any minor informality or non-confirmity or irregularity in a tender which does not constitute a material deviation, provided such a waiver does not prejudice or affect the relative ranking of any Tenderer.
(f) Clause 22.4 is also relied upon contending that it is the purchaser who determines the substantial responsiveness of each tender to the tender documents. He also emphasizes that as enumerated in Clause 22.4, a substantially responsive tender is one which conforms to all the terms and conditions of the tender documents without material deviations and what shall be regarded as material deviations is also provided under Clause 22.4 stating therein that deviations from or objections or reservations to critical provisions such as those concerning Performance Security (GCC Clause 6), Warranty (GCC Clause 14), Force Majeure (GCC Clause 24), Limitation of liability (GCC Clause 28), Applicable law (GCC Clause 30) and Taxes & Duties (GCC Clause 32) will be deemed to be a material deviation. It is thus argued by the learned counsel for petitioner that the so called deviations and deficiencies pointed out in the tender submitted by the petitioner were not material deviations and therefore, the purchaser respondent No. 3 has waived the short comings and has treated the tender of petitioner as substantially responsive. In such circumstances, the appellate authority ought not to have interfered in the matter."
5. Learned counsel has placed reliance on the judgment of the Apex Court in the case of
6. Attention of the Court is also invited to Rule 25 of the Karnataka Transparency In Public Procurements Rules, 2000 to contend that as per sub Rule (1) of Rule 25, initial examination of the tenders to see whether the tender is substantially responsive is required to be made and thereafter the lowest evaluated price in accordance with the evaluation criteria shall be determined. He therefore, urges that what is necessary to find out is whether the tenders submitted are substantially responsive.
7. Sri M.R. Naik, learned Senior counsel appearing for 5th respondent supports the order passed by the appellate authority. He submits that proforma for Qualification Criteria for the manufacturer to the extent of 80% that too during the last three years submitted as per Section 12-A does not contain the signature of the petitioner nor does it satisfy the requirement of satisfactory operation for atleast 12 months on the date of opening of the tender. He urges that 22 Laparoscopes were delivered on 30.7.2013 as per the order placed on 9.5.2013 which will not show that for 12 months material supplied were operational and were found to be satisfactorily operated.
He further points out that another Laparoscope which had been delivered on 15.5.2013 to Adichunchanagiri Institute of Medical Science cannot be regarded as supplies made to third respondent, at any rate, the same also cannot be treated as satisfying the test of satisfactory operation for 12 months because the delivery itself was made on 15.5.2013 and the date of opening of tender was 28.1.2014. As regards 50 items delivered on 18.6.2012 to third respondent as reflected in the proforma under Section 12, it is urged by him that there is nothing to show that it was delivered through the petitioner.
8. However, in her reply to this, learned counsel for third respondent invites the attention of the Court to Annexure ''R-10'', supply order dated 23.4.2012 regarding supply of 50 sets of Double Puncture Laparoscope with accessories by the petitioner.
9. Learned senior counsel for 5th respondent has also contended that End-User Certificate obtained from those whom the items are supplied have to be mandatorily enclosed as is clear from Section 12-A form found in the documents apart from providing proof of supply. He also urges that there can be no recourse to extrinsic evidence to determine the tenderers'' responsiveness. He refers to the said condition mentioned in Clause 22.4.
10. Learned senior counsel places reliance on the judgment of the Apex Court in the case of
Reliance is also placed on the judgment in the case of
11. Inviting the attention of the Court to the judgment in
12. In the statement of objections, it is urged by third respondent that the petitioner fulfils necessary criteria for both manufacturer and bidder i.e., to say 80% and 30% performance with the relevant supply order and invoice copy available. It is urged that petitioner did submit manufacturers'' performance of 80% for 76 numbers of Laparoscopic sets during the year 2012-13 and 38 to the Government of Rajasthan and another 38 to Denmark. It is also urged that for the year 2012-13, petitioner supplied 50 equipments against the supply order dated 23.4.2012 issued by third respondent as per Annexure ''R-10''. It is also urged that 22 equipments were supplied to third respondent in the calendar year 2013-14 and 50 equipments were supplied for the year 2012-13 which made it clear that there was due compliance of the requirements.
13. With regard to the End-User Certificate, it is contended by the third respondent that 72 equipments secured from the petitioner were similar in nature and were utilized by the Government Medical Institutions and no complaints were received from the End-User for using the equipments. It is urged that Tender Scrutiny/Accepting Authority have verified the documents and accepted the tender which was in the interest of general public. Thus, actions of the Tender Scrutiny Committee and the Tender Accepting Authority have been sought to be justified.
14. The State has not filed any objections. However, learned Government Pleader supports the order under challenge.
15. Having heard the learned counsel for all the parties, I find from the impugned order that the twin considerations that has weighed in the mind of the appellate authority in setting aside the decision taken by the Tender Accepting Authority are (i) the proforma for Qualification Criteria for the manufacturer which according to it, ought to have been signed by the manufacturer was not signed by the manufacturer but was only signed by the tenderer/petitioner and (ii) the End-User Certificate furnished by the petitioner did not relate to the supplies detailed in the prescribed proforma but pertained to supplies made by another distributor of M/s. Karl Storz Gmbh and Co. K.G, Germany which could not be considered towards the qualification Criteria for respondent No. 4. It is also found that one End-User Certificate issued in support of B.G. Global Hospital was not in respect of similar type of equipment and was also beyond the period of three years. Further, the equipments supplied to All India Institute of Medical Sciences, New Delhi, was not made by respondent No. 4 and was more than 10 years old, therefore, supply made during the period immediately preceding three years from the date of opening of the tender having not been proved and their satisfactory use having not been certified by the End-User, the deficiency in that regard were fatal to the bid, making the bid non-responsive.
16. The important conditions contained in Clauses 22.3 and 22.4 which pertain to waiver of any minor informality or non conformity or irregularity in a tender which will not constitute material deviation has been provided for in Clause 22.3 which denotes that purchaser has right to waive such minor irregularities or non compliance of requirements where it does not affect the relative ranking of any tenderer.
17. Clause 22.4 provides that the purchaser is required to determine the substantial responsiveness of each tender to the tender documents and a substantially responsive tender is said to be one which conforms to all the terms and conditions of the tender documents without material deviations. What constitutes material deviations is also spelt out in Clause 22.4 stating that deviations pertaining to Performance Security, Warranty, Force Majeure, Limitation of liability, Applicable law, Taxes and Duties etc., would be deemed to be material deviation. It is also provided therein that purchaser''s determination of tender''s responsiveness has to be based on the contents of the tender itself and not by taking recourse to extrinsic evidence.
18. The appellate authority has not referred to these important conditions contained in the aforementioned Clauses and has not come to any conclusion as to whether the irregularities noticed by it in the tenders and documents submitted by the petitioner were material deviation which could not be waived or that they were deviations of such a nature that could have been waived as is urged by the third respondent now and as has been its conduct in dispensing with such requirement while scrutinizing the documents. This aspect assumes significance in this case because, the stand of the third respondent has been that petitioner has been regularly supplying equipments to third respondent over a period of time and the equipments supplied have been utilized by different Government hospitals in the State and there has been no complaint, whatsoever, regarding satisfactory use and the efficient performance of the equipments. In this connection, the third respondent has placed reliance on Annexure ''R-8'' which contains list of users of the equipments supplied through the petitioner. It is also necessary to notice the fact that petitioner had supplied 50 sets of equipments namely, Double Puncture Laparoscope with accessories as per supply order dated 23.4.2012 is admitted by the third respondent and is indeed evidenced by Annexure R-10 and it is in this background only, the third respondent has not raised any objection with regard to this compliance of the requirement of supply of 30% Qualification Criteria as contained in Section 12-A.
19. It has to be noticed that third respondent has not raised any objection for the manufacturer not putting signature on the proforma for Qualification Criteria for the manufacturer as provided in the proforma in Section 12. Whether third respondent could have waived such requirement or could have been deemed to have waived such requirement; whether the same should have been regarded as material deviation rendering the petitioner ineligible to seek consideration of its financial bid, is a matter that has not been addressed by the appellate authority. The same ought to have been addressed by the appellate authority particularly, having regard to the facts and circumstances of the case which disclose that indisputably, petitioner was supplying materials to the third respondent and was the sole distributor for the State of Karnataka and Goa for the products in question manufactured by M/s. Karl Storz, GMBH & Co. KG, German.
20. Though learned counsel for both parties have placed reliance on several decisions of the Apex Court and this Court, having regard to the findings recorded by me that appellate authority has not pronounced on the important aspects pertaining to some of the Clauses contained in the instructions to the tenderers particularly, regarding the waiver of deviations and irregularities, I do not find it just and necessary to deal with the decisions relied on by the counsel for the parties. Ratio laid down in these judgments will become relevant for the guidance of the appellate authority in recording fresh findings. This Court will not be justified in undertaking an exercise in this connection to find out whether the requirements could have been waived or non compliance of the requirements tantamounted to material deviations. The same has to be, better, left to the consideration of the appellate authority. Suffice to observe that order passed by the appellate authority deserves to be interfered with and the matter requires reconsideration. Hence, the order passed by the appellate authority is set aside. The matter is remitted to the appellate authority for fresh consideration in accordance with law.
21. Hence, without expressing any opinion on the merits of the other contentions raised, this writ petition is allowed. Impugned order is set aside. Matter is remitted to the appellate authority with a direction to re-consider the same expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of this order.
It is needless to observe that till the disposal of the matter by the appellate authority, respondents shall not precipitate the matter and await the orders to be passed by the appellate authority.
