M/s. Shivon India represented by its Chief Manager, Mr. Sanjeev Misra vs The Purchase Committee of BMCRI/Pmssy Super Specialty Hospital represented by its Chairman, Bangalore Medical College and Research Institute, represented by its Director and M/s. Ravi Industries represented by its Managing Director

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 28.05.2013 issued by the Director, BMCPJ, K.R. Road, Bangalore. By the said order, the tender submitted by the Respondent. No. 3 has been accepted. The brief facts are that the first respondent issued a Notification dated 10.12.2012 calling for tenders for installation of medical equipments, storage racks and other electronic items. The present petition relates to the tender submitted in respect of Storage racks. The tender documents were to be uploaded by the tenderers/suppliers on or before 17.12.2012. The tenders were open on 20.12.2012. Since according to the Respondent Nos. 1 and 2, the Respondent No. 3 has quoted lesser than the petitioner, he was classified as L1 and the order for supply of the Storage Racks was issued to the Respondent No. 3. The petitioner claiming to be aggrieved by the same is before this Court.

The Respondent Nos. 1 and 2 as also the Respondent No. 3 have filed their respective objection statement seeking to justify the action of the respondent. The manner in which the tender documents were scrutinized and ultimately, the decision taken by the Tender Accepting Authority is sought to be justified. It is their case that the tender submitted by the petitioner was not responsive for non-compliance of the tender conditions relating to the indication of the tax component and also with regard to the concession sought by the petitioner claiming to be an SSI Unit. In that view, it is contended that the respondents were justified in accepting the Respondent No. 3 as L1 and it is also pointed out that before this Court had granted the interim order, certain supplies had already been made by the respondent. It is in that context contended that the instant petition is not maintainable and an appeal as contemplated under Section 16 of the KTPP Act ought to have been filed.

In the light of the contentions put forth in the pleadings, I have heard the learned counsel for the parties. Though the contention with regard to the alternate remedy of appeal had been taken up initially, considering the fact that the petitioner had contended that in the instant case, the same would not constitute an efficacious remedy in as much as the Principal Secretary himself was a party to the tender process and therefore, as an Appellate Authority, he cannot sit in judgment over his own actions. The respondents have also acceded to this aspect and therefore, the question relating to alternate remedy of appeal will not arise and the respondents have conceded to the said position. Hence the petition has been taken up for consideration on merits.

The contention put forth on behalf of the petitioner primarily is that though the tax payable in respect of the items which were sought to be supplied was fixed at 14.5% and even though the petitioner had indicated the tax component at 6%, the difference of the tax amount payable to the concerned Department, in any event, would have been borne by the petitioner and therefore, if this aspect was also kept in view, the petitioner should have been considered as L1. It is also contended that since the petitioner is a Small Scale Industry, the benefit of reduction would have been admissible to them and therefore, the said benefit if had taken into consideration in an appropriate manner, the quotation submitted by the petitioner will have to be considered as responsive and also lesser than that of the Respondent No. 3. It is the further contention that when the tender process was in progress as admitted by the respondents in their objection statement, the Respondent No. 3 had corresponded with the Tender Accepting Authority and therefore, the Respondent No. 3 should have been disqualified and the petitioner''s bid should have been considered. The learned counsel for the respondent with reference to the objection statement and also the documents annexed along with the petition would refer to the specific provisions contained in the tender documents relating to the manner in which the quotations were to be submitted by including the tax payable so as to enable the Tender Scrutiny Committee as well as the Tender Accepting Authority to evaluate the tender to arrive at a conclusion as to which of the tenderers were L1.

Since in the instant case, the entire tax liability had not been quoted, certainly the case of the petitioner cannot be considered is the submission of the learned counsel for the respondents. With regard to the claim of the status as SSI and consideration thereof, it is contended that the necessary document in that regard had not been uploaded before the last date for uploading the tender documents and any document produced subsequently is of no consequence whatsoever. Further, with regard to the contention that the Respondent No. 3 had corresponded with the Tender Accepting Authority, reference is also made to the tender document to contend that the conflict in that regard could only be against influencing the tender process but it does not prevent the objections being raised with regard to improper evaluation made. In that context, it is contended that the Tender Accepting Authority has properly considered this aspect of the matter and arrived at a conclusion, which does not call for interference.

In the light of the said contentions, what is necessary to be noticed, as rightly pointed out by the learned counsel for the respondents is the manner in which the tender documents provides for the requirement by the tenderers to quote the tender price. In this regard, Clause 9 of the tender document would refer to that aspect of the matter. It is clear therein that the prices of the goods quoted should include all the duties and sales and other tax either already paid or payable. If this requirement is taken into consideration, the petitioner while quoting the tender price was required to include the appropriate tax payable on the goods that were to be supplied. In the instant case, it is not in dispute that the tax liability fixed by the Government is 14.5%. If that is kept in view, certainly the petitioner was required to include that portion of the amount payable also so as to quote the tender price, since only if all aspects are quoted, it would be possible for the Tender Evaluation Committee to arrive at a proper conclusion with regard to the L1 tenderer. While on this aspect itself, the question as to whether the Respondent No. 3 had interfered in the tender process also needs consideration. On this aspect of the matter, as rightly pointed out, the manner in which the quotation had been made by the petitioner is available as per the Chart at Annexure-R6 produced along with the objection statement. Further, in any event, it is not in dispute that the petitioner had not calculated the entire tax liability of 14.5% to quote the price. Despite the same, when the Tender Scrutiny Committee without reference to this aspect of the matter had taken into consideration the manner in which the petitioner had quoted the tax liability, certainly, the Respondent No. 3 who was a rival tenderer had the duty of bringing to the notice of the Tender Accepting Authority and the Tender Accepting Authority while taking note of the manner of evaluation as made by the Tender Scrutiny Committee has to take this aspect into consideration and such objection raised cannot be considered as a violation of the tender process in as much as such written response to be made, has been provided in Clause 22.5. Therefore, the objection raised on behalf of the petitioner cannot also be upheld by this Court.

The next question for consideration is as to whether the benefit of the petitioner being an SSI Unit should have been taken into consideration by the Respondent Nos. 1 and 2 and if that benefit was granted and the evaluation was made, whether the petitioner would have been the L1 tenderer. Before adverting to the question of the necessary reduction that should have been given, if the petitioner was an SSI Unit, the question that needs to be addressed is as to whether at the time of uploading the documents, the petitioner had claimed such benefits and submitted documents in that regard so as to make the same responsive. To the said extent, SSI Units Certificates relied upon by the petitioner has been produced by the Respondents at Annexures-R7 and R8. In the instant case, it is not in dispute that the supply is only in respect of the storage materials, which are the steel furnitures and metal fabrications. From the certificate produced at Annexure-R8, the same would indicate that the amended date is 28.01.2013 by inclusion of new product as per the sale invoice. In that view, if the certificate at Annexure-R7 is juxtaposed and perused the same does not refer to the steel furniture and metal fabricators. In such circumstance, when the amended inclusion has been made on 28.01.2013 and the last date for uploading the tender documents had been fixed on 17.12.2012, it would be evident that the required document had not been uploaded by the petitioner as on the last date for uploading the tender documents. If such compliance was not made, the tender, in any event, would have to be held as now responsive. The said conclusion is also fortified by the decision of the Hon''ble Supreme Court in the case of Glodyne Technoserve Ltd. Vs. State of M.P. and Others, relied on by the learned counsel for the respondents wherein a similar situation while submitting ISO 9001:2000 Certificate was required to be filed and the same being subsequently submitted was considered. Therefore, if all these aspects are kept in view, when the tender documents submitted by the petitioner was non responsive and also the tender prices had not been properly quoted, the petitioner at this juncture cannot contend that if it was considered in a different manner, the price quoted by the petitioner ought to have been classified as L1. In that view of the matter, I see no merit in the instant petition. The same is accordingly disposed of. Needless to mention when the prayer has not been accepted, the interim order stands dissolved. Pending application also stands disposed of.