IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 1559 of 2009 Between: Shri Sai Distributors, IInd floor, Thakur Bhavan Thakur Nagar, R.R.Thakur Marg, Jogeshwari (E) Mumbai, Maharastra rep by Divesh Surendra Thakur, S/o.Surendra Thakur ..... PETITIONER AND 1 Andhra Pradesh Vaidya Vidhana Parishad, Koti Hyderabad, rep.by its Commissioner 2 Andhra Pradesh Health & Medical Housing, & Infrastrucuture Developmnet Corporation, Third floor, DM & HS office Campus, Sultan Bazar Hyderabad, rep.by its Managing Director 3 The Government of Andhra Pradsh, Medical & Health Department, Secretariat Buildings, Hyderabad rep.by its Principal Secretary 4 Union of India., Maternal Health Division, Department of Health & Family Welfare , New Delhi, rep.by its Secretary 5 M/s.Sur Electrical company (P) Ltd., Kolkata West Bengal, .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of writ of mandamus to declare the inaction of the respondents in finalizing the tenders called for through e.Procurement vide Tender Notice No.18/APHMHIDC/Drugs Wing/2008-9 dated 2.8.2008 in so far as procurement of Neonatal Respirator is concerned as illegal, arbitrary, and against principles of natural justice and that it defeats the very purpose of online transaction lack of transparency and consequently to direct the respondents to finalise the tenders by further evaluating the machinery of the petitioners and 5th respondent as per the recommendations of the evaluating committee, and in a transparent manner in the interest of justice. Counsel for the Petitioner:M R.B.SUDHAKAR REDDY & NEERAJA REDDY Counsel for the Respondent No.: GP FOR MEDICAL HEALTH & FAMI.WELFARE The Court made the following : THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION No : 1559 of 2009 O R D E R : The 2nd respondent-Andhra Pradesh Medical Housing and Infrastructure Development Corporation, Hyderabad issued a tender notice dated 02-08-2008 for procurement of medical equipment on e- procurement basis. One of the items mentioned in the said tender notice is supply of 24 Nos Neonatal Resuscitator to be installed/used at the hospitals maintained by A.P.Vaidya Vidhana Parishad and the writ petitioner submitted its bid for the said item duly complying with all the requirements. As per the tender notice the bids are to be submitted online and the technical bids and price bids are to be opened on 22- 08-2008 and 02-09-2008 respectively. The petitioner states that the result has to be conveyed to the participants online and though it has been processing the net from 22- 08-2008, no details were available. Since the petitioner could not get any information with regard to its tender, having waited for a long time, the petitioner submitted a representation under the Right to Information Act, 2005. In response, the petitioner was furnished certain documents, which revealed that altogether four bids were received and out of the same, one was rejected at the initial stage itself as it did not satisfy the eligibility criteria. The bids of the petitioner and two other bidders including the 5th respondent herein were found to be in order by evaluation committee. The documents furnished to the petitioner further revealed that the bid offered by the bidders has to be considered for further evaluation. However, no such further evaluation was done by the 2nd respondent in spite of several requests made by the petitioner. Hence, this writ petition seeking a declaration that the inaction on the part of the respondents in finalizing the tenders pursuant to the e-procurement tender notice dated 02-08-2008 is arbitrary and illegal and that the delay defeats the very purpose of online transaction and transparency. A consequential direction is also sought by the petitioner to finalize the tenders by further evaluating the machinery of the petitioner and the 5th respondent as per the recommendation of the evaluating committee in a transparent manner. I have heard the learned counsel for both the parties. Learned counsel for the petitioner while reiterating the contentions raised in the writ petition further urged that the fact that the 2nd respondent failed to return the EMD furnished by the petitioner itself shows that the tender is not finalized and that the inordinate delay on the part of the 2nd respondent in finalizing the tenders is arbitrary and illegal. A counter affidavit has been filed on behalf of the 2nd respondent stating that the technical evaluation of the bids took place on 06-09-2008 and the technical committee constituted by the 2nd respondent found the bids of the petitioner, 5th respondent and another bidder as responsive. Subsequently, on 19-09-2008, the price bids of the aforementioned three bidders were opened and the prices offered were as under: “1)M/s Sur Electricals (5th respondent) Rs.1,49,875/- 2) M/s Srisai Distributors (writ petitioner) Rs.1,96,875 3) M/s Breathline Equipments Rs.2,10,375/-“ As the price offered by the 5th respondent was found to be the lowest, the equipment offered by it was considered for further evaluation as recommended by the technical committee. Thereafter, by letter dated 04-10-2008, the 2nd respondent-Corporation confirmed the selection of the 5th respondent and issued a purchase order in its favour. Pursuant thereto, an agreement dated 27-10-2008 was entered into with the 5th respondent and accordingly, the 5th respondent had supplied the equipment. Thus, it is contended that the alleged inaction on the part of the 2nd respondent in finalizing the tender is incorrect and without any basis. The 5th respondent in its counter affidavit reiterated the fact that it has already supplied the equipment pursuant to the supply order dated 04-10-2008 issued by the 2nd respondent-Corporation followed by the agreement dated 27-10-2008. From the counter affidavits filed by the respondents 2 and 5 it is clear that the tender in question was finalized and even the equipment was supplied by the 5th respondent long back. Thus, the cause in the writ petition does not survive and the writ petition itself is rendered redundant. However, the learned counsel for the petitioner vehemently contended that the entire transaction following the tender notice dated 02-08-2008 was lacking transparency and no information was made available to the petitioner about the finalization of the tender. The learned counsel further contended that the agreement in favour of the 5th respondent is liable to be set aside on that ground itself and there shall be a direction to the 2nd respondent to re-evaluate the bids received and to issue a fresh supply order. In the reply affidavit filed by the petitioner it is alleged that though the petitioner was given a password to access the tender, the same was subsequently changed by the 2nd respondent without the petitioner’s knowledge and therefore, the petitioner could not access to the website online. It is also pleaded that in response to the petitioner’s application dated 20-10-2008 under the Right to Information Act, 2005 the 2nd respondent did not reveal that the tender was already finalized in favour of the 5th respondent. It is further alleged that the supply order was issued to the 5th respondent by the 2nd respondent without going into the technical details of the equipment offered by the 5th respondent and without making further evaluation as recommended by the technical committee. Thus, it is contended that the action of the 2nd respondent is arbitrary and illegal and the entire process of finalization of tender is vitiated on the ground of extraneous considerations. The learned counsel appearing for the 2nd respondent- Corporation while producing the entire record relating to the tender proceedings before this Court, submitted that whatever information was sought by the petitioner under the Right to Information Act, 2005 was promptly furnished and as a matter of fact the entire information including finalization of tenders was made available to the participants in the website by providing key to access the same. It is also categorically stated in the counter affidavit filed on behalf of the 2nd respondent-Corporation that the information pertaining to the award of tender was notified in the relevant website. It is further explained that it is only the successful bidder, who will be informed in writing confirming the acceptance of the bid and for the other participants the relevant information would be made available in the website. The said procedure is being followed in all the tenders issued on e-procurement basis and the same has been strictly followed in the present case also. So far as the EMD and bid security of the unsuccessful bidders is concerned, it is stated the same would be returned to them on their written requisition. On a careful consideration of the entire material available on record and the explanation offered by the 2nd respondent-Corporation with regard to the procedure followed by it in finalizing the bids received pursuant to the tender notice dated 02-08-2008 on e- procurement basis, I am unable to hold that the action of the 2nd respondent is arbitrary or illegal on any ground whatsoever. Admittedly, the petitioner was also found to be one of the responsive bidders by the technical committee. However, since the 5th respondent’s bid was the lowest, the same was accepted by the 2nd respondent-Corporation and the supply order was issued in its favour. Though it is contended on behalf of the petitioner that as per the recommendations of the technical committee the 2nd respondent ought to have conducted further evaluation of the petitioner’s equipment, nothing could be pointed out by the learned counsel for the petitioner to show that the 2nd respondent is under an obligation to further evaluate the equipment offered by all the responsive bidders. Since the 5th respondent was the lowest bidder, the 2nd respondent was justified in placing the supply order in its favour after conducting the further evaluation of the equipment offered by it. The allegations made by the petitioner that it could not have access to the website and it was not aware of the finalization of the tender cannot be accepted in the absence of any other supporting material. It is relevant to note that Clause 22.1 of the Instructions to the Bidders appended to the tender notice made it clear that the bids will be opened by the purchaser in the presence of the representatives of the bidders who choose to attend. The fact that the dates and the premises where the bids would be opened was also specified therein shows that an opportunity was given to the interested bidders to be present at the time of opening of the bids. If the petitioner was really interested, he would have attended the bid opening either in person or through his agent. Having failed to do so, the complaint made by the petitioner long after finalization of the tenders appears to be an after- thought on account of the trade rivalry. At any rate, merely because the 2nd respondent did not inform the petitioners about the finalization of the tenders while furnishing the information to the petitioner under the Right to Information Act, no mala fides could be inferred and it cannot be concluded that the tender process was vitiated on the ground of extraneous considerations. As a matter of fact, in Clause 33 of the Instructions to the Bidders, it was made clear that the Purchaser will notify the successful bidder in writing by registered letter or cable or telex duly confirming that the bid has been accepted and such notification of award will constitute formation of the contract. Hence, it cannot be said that the 2nd respondent is under an obligation to inform the petitioner about the acceptance of the 5th respondent’s bid. For the aforesaid reasons, the interference by this Court at this stage is not warranted on any ground whatsoever and accordingly, the writ petition is dismissed. No costs. ______________ G. ROHINI, J Dated: 17-06-2009 Note: Issue C.C. by tomorrow. B/o KLP