IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 24839 of 2009(Y) --------------------------------------- PETITIONER(S): ---------------------- M/S SIEMENS AG,HEALTH CARE SECTOR, D-91052,ERLANGEN,GERMANY,REPRESENTED BY ITS POWER OF ATTORNY, SHRI.DIPU K BOSE, EXECUTIVE MERKETING SIEMENS LTD., KG OXFORD BUSINESS CENTRE, SHREE KANDATH ROAD, RAVIPURAM,COCHIN-16,KERALA ,INDIA. BY ADV. MR.C.M.ANDREWS RESPONDENT(S): ------------------------ 1. THE DIRECTOR,SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM-695 001. KERALA STATE. 2. THE TENDER COMMITTE REPRESENTED BY ITS CHAIRMAN DR.A.K. GUPTA, SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM-695 001.KERALA STATE. 3. M/S WIPRO GE HEALTH CARE, NO.A.1 GOLDEN ENCLAVE, AIRPORT ROAD, BANGALORE-560 017. 4. SECRETARY TO GOVERNMENT, DEPARTMENT OF SCIENCE AND TECHNOLOGY, UNION OF INDIA, NEW DELHI. R1 & R2 BY ADV. MR.T.R.RAVI. R3 BY ADV. MR.MILLU DANDAPANI. R4 BY ADV. MR.P. PARAMESWARAN NAIR, ASST. SG. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON 30/11/2009 DELIVERED THE FOLLOWING: WP(C) NO. 24839/2009-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE TENDER DOCUMENT ISSUED IN TENDER NO.005/IMP/2008-09/IGD FLOATED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE COMMUNICATION NO.005/IMP/2009-10/IGD DATED 27/07/2009 RECEIVED BY THE PETITIONER FROM THE PURCHASE OFFICER UNDER THE 1ST RESPONDENT. EXT.P3: COPY OF THE CERTIFICATE (CLEARANCE) NO.K.072237 DATED 10/10/2007 ISSUED TO THE PETITIONER BY THE FOOD AND DRUG ADMINISTRATION (FDA), USA. EXT.P4: COPY OF THE CERTIFICATE DATED 25/04/2008 ISSUED BY FOOOD AND DRUG ADMINISTRATION (FDA), USA IN FAVOUR OF M/S.GE MEDICAL SYSTEM WITH 510(K) SUMMARY. EXT.P5: COPY OF THE LETTER DATED 29/07/2009 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P6: COPY OF THE MEMORANDUM OF APPEAL FILED IN APPEAL NO.HFW 283 PTD 2008 UNDER SEC.16 OF THE KARNATAKA TRANSPARENCY IN PUBLIC PROCUREMENTS ACT, 1999 BY THE PETITIONER BEFORE THE SECRETARY, DEPARTMENT OF MEDICAL EDUCATION, GOVERNMENT OF KARNATAKA, BANGALORE. EXT.P7: COPY OF THE ORDER DATED 20/05/2009 PASSED IN APPEAL NO.HFW 283 PTD 2008 BY THE PRINCIPAL SECRETARY TO GOVERNMENT OF KARNATAKA, HEALTH AND FAMILY WELFARE DEPARTMENT (MEDICAL EDUCATION). RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE EXTRACT FROM “THE BASICS” BY RAY HASHMAN HASHEMI, WILLIAM G.BRADLEY, CHRISTOPER J.LISANTI, PUBLISHED AS THE 2ND EDITION BY LIPPUNCOTT WILLIAMS & WILKI. //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.24839 of 2009-Y = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of November, 2009. JUDGMENT 1.Sree Chitra Tirunal Institute for Medical Sciences & Technology, hereinafter referred to as the “Institute”, invited sealed tenders, in terms of Ext.P1 global tender, inviting competitive bids for installation of a state of the art, top of the line, true whole body stable 3 Tesla super conductive magnet MRI system with high homogeneity and latest high performance gradients having digital radio frequency system with optimized matching multi channel coils. Technical bids and price bids were to be made separately. The petitioner and the third respondent and another company quoted. The evaluation of the technical bid was made by the Technical Committee. The third respondent's offer was WPC24839/09 -: 2 :- cleared by the Technical Committee, while the petitioner's offer and the offer of the other were rejected. The petitioner challenges such rejection. 2.Ext.P2 contains three reasons for rejection of the offer of the petitioner. They are as follows: “a) We have asked for 3T MRI clinical system as an essential requirement. Even though you have quoted in your system as 3T MRI, considering the carrier frequency at 3T system which is clearly stated as 123 MHz, it is clear that the system is not 3T and is about 2.89 T only, which is a major deviation from the essential requirement. (b) The homogeneity of the system is much inferior (40 DSV 0.25 ppm & 0.5 ppm from other two vendors) compared to 1.2 ppm of Siemens at 40 DSV which is likely to affect the performance of the System with advanced application. (c) MR elastography is an essential WPC24839/09 -: 3 :- requirement and is not quoted by you in respect to hardware used, pulse sequence needed and post processing software. On reconfirmation from you, you mentioned that it is not a product and can be discussed under research agreement, without giving details of hardware, pulse sequence and software.” 3.In the writ petition, the petitioner projects a case that the machine offered by it is in terms of the requirements and has been certified by the Food and Drugs Administration (FDA), USA as a 3 Tesla MRI scanner based on a superconducting magnet. Ext.P3 is stated to be that certification. It accordingly impeaches the first among the three grounds on which its technical bid has been rejected. The petitioner further states that the other two reasons given in Ext.P2 also do not stand for the reason that such matters were not part of the compulsory requirements but could also be on the basis of the research agreement etc. The petitioner has made a plea of certain information regarding WPC24839/09 -: 4 :- bias and prejudice to it. It states that in the absence of concrete proof, the petitioner is unable to array the said persons in this case but stated that the Tender Committee had two members of whom one was a member of Technical Advisory Board of the third respondent and the other might be having a certain direct or indirect commercial relationship with the third respondent. 4.The fundamental plea projected on behalf of the petitioner at the time of arguments, is that the Technical Evaluation Committee acted without any basis to hold that the petitioner's equipment is not a 3 Tesla machine but would not be more than 2.89 Tesla as stated in the first among the grounds in Ext.P2 rejection order whereby the un- opened commercial bid was returned to the petitioner. The learned counsel for the petitioner strenuously contended that the assumption of the Technical Committee that the petitioner's machine is only about 2.89 Tesla in view of the fact that the carrier frequency is WPC24839/09 -: 5 :- only 123 MHz, is wrong. The petitioner would contend and argue that the machine is a 3 Tesla machine and has been fine tuned to 123 MHz to obtain the best possible clarity for the images. 5.The Institute has filed a counter affidavit. Apart from asserting that the Technical Members of the Committee are renowned Radiologists and Engineers of known integrity and having no connection with any company, the Institute contends that even on the basis of technical data, a 1 Tesla machine would have a precessional frequency of 42.6 MHz and a 1.5 Tesla machine would have a frequency of 64 MHz and a 3 Tesla machine would have precessional frequency of 128 MHz. The Institute relies on Ext.R1(a) as a technical material (portion of a text book) in support of its contention. The failure of the petitioner to implead any person against whom it has any specific allegation of bias, is also pointed out. The Institute further contends that all technical members are associated with MRI WPC24839/09 -: 6 :- Research/work at least for past 16 years and the experts are authorities in Magnetic Resonance Imaging. It is also pointed out that earlier the Institute had occasion to purchase a 1.5 Tesla MRI system and the petitioner was cleared by a Technical Committee which included the same person who is the expert in the committee which evaluated the present tenders. The Institute asserted further that it understands that the machine offered by the petitioner as a 3 Tesla machine did not qualify in tender floated by Institute of Liver and Biliary Sciences (ILBS) at New Delhi as it was only 2.89 Tesla system and not a 3 Tesla system. It further states that what was specified in Ext.P1 tender document forms the minimum requirement. 6.In its counter affidavit, the third respondent, among other things, has specifically stated that no member of the Technical Committee of the Institute is, in any manner, associated with, either the third respondent or its parent WPC24839/09 -: 7 :- companies. It specifically denied the allegation of favouritism. 7.It needs to be noted that though a fairly lengthy reply affidavit has been placed on record, the petitioner does not dispute the pleadings in paragraph 5 of the counter affidavit of the Institute that the machine offered by the petitioner is treated as 2.89 Tesla for the reason that its carrier frequency is only 123 MHz. The petitioner attempts to get over that situation by reiterating the FDA certification. The petitioner does not deny that its tender to the Institute of Liver and Biliary Sciences was not accepted. It asserts in its reply affidavit that such rejection by ILBS was not on good faith. Obviously, the petitioner does not even hold out any material to show that it had challenged such decision, at least on an allegation of absence of good faith. 8.In so far as the participation of Dr.R.K.Gupta as WPC24839/09 -: 8 :- the expert is concerned, the petitioner essentially rolls round to say that it is a coincident that the said person was the external expert for the assessment of tenders by ILBS and also by the Institute. The petitioner tries to say that it has every reason to conclude and honestly believes that Dr.R.K.Gupta is ill- disposed towards it and he is also the person who is primarily responsible for the rejection of the petitioner's bid in the present tender as well. In this context, it is worthwhile to refer to the plea of the Institute that it is uncharitable for the petitioner to criticise the Technical Committee which included Dr.R.K.Gupta, who was also the expert in the committee which had earlier cleared the petitioner's machine of 1.5 Tesla. 9.With the aforesaid situation, it is beyond doubt that the petitioner has not been able to plead or prove any allegation of bias. The petitioner does not dispute the competence, abilities or WPC24839/09 -: 9 :- expertise of the members of the Technical Committee. 10.With the aforesaid, it needs to be noted that the Committee had given the specific reason for the rejection of the technical bid of the petitioner. In the reply affidavit, the petitioner does not dispute the veracity and reliability of Ext.R1(a) as a reliable expert material. It does not refute the stand in the counter affidavit of the Institute that the magnetic field strength of a machine and the precessional frequency of hydrogen are interdependent. Adverting to Ext.R1(a), it has to be noted that the precessional frequency of the hydrogen proton increases as the external magnetic field strength increases. While the precessional frequency of hydrogen proton is 42.6 MHz if the magnetic field strength is 1 Tesla, it becomes 64 MHz at 1.5 Tesla. Arithmetically, the calculation offered by the experts is that a machine with the external magnetic field strength WPC24839/09 -: 10 :- as 3 Tesla would have the precessional frequency of hydrogen as 127.8 MHz, i.e., around 128 MHz. This works out, on an arithmetical calculation also. As a necessary corollary, the experts have concluded that a machine which has a precessional frequency of hydrogen proton at 123 MHz cannot have the magnetic field system beyond 2.9 Tesla. 11.The petitioner attempts to explain the aforesaid situation by saying that its machine is a 3 Tesla machine, but its precessional frequency is fine tuned to be at 123 MHz to obtain better images and optimum utility. Ext.P3(a) FDA certification does not contain any material in support of this stand of the petitioner. The specific plea in this regard in paragraph 5 of the counter affidavit of the Institute is not denied as such. Not only that, the petitioner has not produced any scientific material, even to attempt to support or corroborate its stand. The statements in Ext.P3 do not mean that the scientific conclusion arrived at by the Technical Committee WPC24839/09 -: 11 :- of the Institute is unsustainable, perverse or arbitrary. 12.It is not for the courts to sit in judgment on highly scientific and technical matters. Courts cannot assume knowledge of the science in relation to such matters. The impugned evaluation has been done by competent persons. Their competency is not challenged. It is not the decision of a single individual. The decision has come from a Committee. It has the Head of Departments from within the Institute and also other men/women of science. No attribute of malafides or arbitrariness is made against them. The institutional decision taken after evaluating the technical bid of all the three bidders is in relation to an institute of national and international importance in the field of health. Having found that the persons who evaluated the bid had the authority and the unchallenged knowledge to do such evaluation, this Court finds no reason to interfere with the evaluation. WPC24839/09 -: 12 :- For the foregoing reasons, this writ petition fails. The same is accordingly dismissed. No costs. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/3011