Bhushan Pharmaceuticals Pvt. Ltd v. Government of NCT of Delhi and Anr

S.RAVINDRA BHAT,J. (ORAL)

CM Appl.44313/2018 Allowed, subject to all just exceptions. W.P.(C) 11445/2018 & CM Appl.44312/2018

¶1The petitioner"s grievance is that the documents in response to the e-tender of the Govt. of NCT of Delhi for procurement of Ayurvedic and Unani medicine could not be uploaded in the website www.govtprocurement.delhi.gov.in. In support of this contention, it has placed on record photocopies of the screenshots indicating that though repeated attempts to freeze and therefore, upload its bid were made, the website was not accepting it, and consequently, the petitioner was timed out at 1:00 p.m on 12.10.2018, which was the stipulated time for close of bidding.

¶2The Government of NCT of Delhi is represented and has appeared on advance notice. The relevant file relating to the tender procurement as well as appraisal of the petitioner"s bid – to the extent that it did not relate to electronic/digital submission of documents, has been shown to the Court. Besides uploading documents on the portal in question, every bidder had to produce the bank guarantee towards Earnest Money Deposit (EMD) requirement, spelt out in the tender. Besides, as the procurement was for medication, the samples of the medicines, from which the bidders wished to offer, too had to be submitted at or before the designated time, i.e. 1p.m. on

12.10.2018.

¶3The respondent"s record shows that besides the omission to upload digitally the tender documents, the petitioner had not furnished the samples as stipulated, by the prescribed time. Factually, this is not disputed by the petitioner, but it is contented that it proposed to submit the physical samples only after uploading the bid electronically.

¶4The Court notices that the relevant condition with respect to the EMD and sample submissions are as follows: "Earnest Money Deposit i. An amount of ₹ 66,00,000/- (Rupees sixty six Lakhs only) as earnest money shall have to be deposited in person in the form of Demand Draft/Fixed Deposit Receipt/Bank Guarantee in favour of Director (AYUSH), Government of NCT of Delhi payable at Delhi, in the office of Deputy Director (ISM), Directorate of AYUSH, A & U Tibbia College Campus, Karol Bagh, New Delhi-110005, latest by the last date and time of bid submissions, in physical form and details of the same shall be submitted online with Bid. ii. The details of the DD/any other accepted instrument, physically sent, should tally with the details available in the scanned copy and the data entered in the submitted Bid.

Otherwise the uploaded bid will be rejected. iii. EMD would be refunded to the successful bidder on receipt of Performance Security. iv. EMD of the unsuccessful bidders would be returned to them on or before the 30th day after the award of the contract. v. The EMD may be forfeited if a bidder withdraws its Bid during the period of Bid validity specified by the bidder in the tender document. vi. The EMD of the successful bidder will be forfeited if the bidder fails to sign the contract or to furnish Performance Security for the work awarded to him within the stipulated period.

¶3SAMPLE SUBMISSION: i. Four samples of each enquired medicine are to be submitted by the stipulated date and time as per the details given below. Failure to do so shall entail the quotation liable to be rejected. ii. Samples must reach the office of the Deputy Director

(ISM), Directorate of AYUSH, A & U Tibbia College Campus, Karol Bagh, New Delhi-110005, latest by the last date and time of bid submissions in a sealed pack along with a list of supplied samples without quoting rates. Ayurvedic and Unani medicine samples are to be submitted in separate packs. iii. The labeling of samples should comply with the provision of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, The Drugs & Cosmetics Act, 1940 and rules made there under and are as per the specifications of AFI/ NFUM/Authoritative texts mentioned in First Schedule in case of classical medicines and as per approved formulae in case of proprietary/patent medicines. iv. Samples submitted for tender purpose against the quoted medicine should contain the following quantity (as specified in Annexure C1-C4 for each medicine). Technical sheet must be submitted as per Annexure F: Ayurvedic Medicines:

S. No. Dosage from Unit A/U S. No. Dosage from Unit A/U

¶1Asava/Arishta 200 ml

¶10Churna/Lepa/ Powder/ Granules 50 gm

¶2Arka/Syrups 100 ml

¶11Taila/Oil 10 ml /50 ml

¶3Avaleha/Paka/ Khanda 100 gm

¶12Vati/Gutika/ Madura gm (each tab of 125 mg wt)

¶4Kwatha Churna 100 gm

¶13Lauha 5 gm (each tab of 125 mg wt)

¶5Guggulu 10 gm (each tab of 250 mg wt)

¶14Bhasma gm / 10gm

¶6Ghrita 100 gm

¶15Tablets/Capsules /Pills

¶7Kshar 10 gm

¶16Ointments 20 gm

¶8Parpati 5 gm/ 10 gm

¶17Malahara 25 gm

¶9Rasa 10 gm (each tab of 125/250 mg wt)

Unani Medicines: S. No. Dosage from Unit A/U S. No. Dosage from Unit A/U

¶1Tabs/Caps/ Pills 30 per pack

¶8Raughan (oils) 50 ml

¶2Arqiyat 200 ml

¶9Powder/granules 50 gm

¶3Syrups 200 ml

¶10Balm/Ointment 25 gm

¶4Paediatric drops 50 ml

¶11Single drugs 50 gm

¶5Majoon/Laboob/ Jawarish/Laooq/ 100 gm

¶12Khamira 60 gm

Itriphal

¶6Arq-e-Ajeeb 05 ml

¶13Kushta 10 gm

¶7Zaroor Qula 10 gm

(Emphasis supplied)

¶5The "Bidding Schedule" specified in the tender document stated as follows":- I Date of release of e-tender on https://www.govtprocurement.delhi.gov.in

20.09.2018 at 10:00 AM II Date of pre-bid meeting

26.09.2018 at 11:00 AM III Start date of upload of Bid

28.09.2018 at 10.00 AM IV Last date and time of receipt of online Bids

12.10.2018 till 01:00 PM V Last Date and time of depositing EMD

12.10.2018 till 01:00 PM VI Last date and time of submitting samples

12.10.2018 till 01:00 PM VII Date and time of opening of Pre-qualification Bid

12.10.2018 at 02:00 PM VIII Date and time of opening of Technical Bid

17.10 .2018 at 10:00AM IX Address for Communication, pre-bid meeting and for submission of samples and for opening of all bids Director (AYUSH), Directorate of AYUSH, A & U Tibbla College Campus, Karol Bagh, New Delhi-05 X Amount of Earnest Money Deposit ₹ 66,00,000/-

¶6It is apparent that there were separate conditions – besides the other stipulations with regard to uploading bids on the website, as far as submission of EMD of ₹ 66 Lacs, and sample submission are concerned. The stipulation in clause 3(ii) was that the samples had to reach the concerned office i.e. the Deputy Director (ISM), Directorate of AYUSH, A & U Tibbia College Campus, Karol Bagh,

New Delhl-110005, "latest by the last date and time of bid submission in a sealed pack".

¶7In the opinion of the Court, it is clear and unambiguous – and also not capable of two interpretations. There may be some merit in the petitioner"s arguments with respect to its inability to upload the tender documents electronically, as the copy of screenshot placed on the record does indicate that the essential documents were uploaded and at the same time, that its attempt to submit the bid were unsuccessful. However, it is equally apparent that the petitioner failed to comply with or completely misinterpreted, the tender condition with respect to the submission of samples. The samples had to reach the respondent"s designated office by the time and on the date designated. They did not.

¶8In this set of circumstances, even if the petitioner were to succeed in its argument regarding the technical error with respect to the respondent"s web portal, the petitioner"s bid would be treated as non-responsive.

¶9In view of the foregoing discussion, this Court is of the opinion that there is no merit in the petition. It is accordingly dismissed. The pending application has become infructuous.

S. RAVINDRA BHAT, J

PRATEEK JALAN, J OCTOBER 23, 2018/ab

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 23.10.2018 + BHUSHAN PHARMACEUTICALS PVT. LTD. ..... Petitioner Through Mr.Sanyam Khetarpal, Adv. with Mr.Armaan Grover, Adv. versus GOVERNMENT OF NCT OF DELHI AND ANR. ..... Respondents Through Mr.Ramesh Singh, Std. Counsel. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PRATEEK JALAN