*HON’BLE SRI JUSTICE L.NARASIMHA REDDY +WRIT PETITION No.20014 OF 2008 % 16th March, 2009 # M/s.Wipro GE Health Care Pvt. Ltd. And another. …Petitioners And $ State of Andhra Pradesh and others …Respondents ! Counsel for the petitioners : Mr. C.Kodanda Ram ^ Counsel for respondent No.3 : Mr. P.V.A.Padmanabhan ^Counsel for respondent No.5 : Mr.E.Manohar < Gist: > Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.20014 of 2008 JUDGMENT: Sree Venkateswara Institute of Medical Sciences, Tirupathi, the 4th respondent, intended to procure and install “Positron Emission Tomography (PET) Scanner with integrated CT Scanner”. It entrusted the work of procurement and implementation to the A.P. Health and Medical Housing and Infrastructure Development Corporation, the 3rd respondent. The latter kept the tender document for procurement of PET, on its web site. The facility of downloading the document was provided between 20th and 27th August 2008. Tenders were to be received within that period. The process involved two stages, viz., technical bid and price bid. The technical evaluation comprised of not only verification of the data submitted by the tenderers, but also verification of sample. The price bids of those who qualified in the tender bids, were to be opened on 05.09.2008. The specifications of the equipment were mentioned in the tender document itself. The petitioner is a joint venture between Wipro and General Electric (GE), which is a leading organization in the Diagnostic and Interventional Medical Imaging, Information and Services Technology. After downloading the tender documents, the petitioner undertook correspondence with respondents 3 and 4, and sought clarifications on certain aspects. Ultimately, it submitted it’s tender. At the technical evaluation, the tender of the petitioner was not found, up to the mark. Therefore, it was rejected. The 5th respondent also submitted it’s tender and it qualified, at the technical bid stage. The petitioner seeks a Writ of Mandamus declaring the Bid evaluation adopted by respondents 3 and 4, in pursuance of the tender notification, disqualifying the petitioner’s bid and selecting that of the 5th respondent, as illegal, arbitrary and mala fide, and violative of their rights guaranteed under Articles 14 and 19 (1)(g) of the Constitution of India. In the detailed affidavit filed in support of the Writ Petition, it is stated that though respondents 3 and 4 have clarified that the detector material is not confined to LSO/LYSO, the tender of the petitioner was rejected on that very ground. It is further alleged that one of the specifications, viz., the weight bearing capacity, was modified, only to disqualify the petitioner and to provide advantage to the 5th respondent. Extensive reference is made to the correspondence that ensued between the parties. The 3rd respondent, on the one hand, and the 5th respondent, on the other hand, filed detailed counter-affidavits. It is stated that, the petitioner does possess the LSO/LYSO technology and only with a view to deny the same to the hospitals and medical institutions in Asia, it is trying to thrust an otherwise outdated equipment. It is alleged that the petitioner cannot insist on relaxation or modification of the conditions and this Court cannot undertake technical evaluation, much less substitute its opinion, for that of a Committee of Experts. Sri C.Kodanda Ram, learned counsel for the petitioner, submits that though the initial specifications in the tender document under the heading “Detector Material” was restricted to “LSO/LYSO”, after prolonged correspondence with the petitioner, respondents 3 and 4 have modified the condition, in such a way as to include the equipment of that category also, duly laying the broad guidelines, vide their communication, dated 21.08.2008. Learned counsel contends that the equipment sought to be supplied by the petitioner fulfils the modified requirements and with a view to nullify the same, condition No.3(v) relating to weight bearing capacity was modified. He points out that not only the price, but also the subsequent cost of maintenance for the equipment manufactured by the 5th respondent, is abnormal compared to the one for the equipment manufactured by the petitioner. It is also argued that the steps taken by respondents 3 and 4 are contrary to the guidelines issued by the Government of India in its Ministry of Health and Family Welfare. Sri P.V.A.Padmanabhan, learned counsel for the 3rd respondent and Sri E.Manohar, learned Senior Counsel for respondent No.5, on the other hand, submit that the petitioner had suppressed vital information from respondent 3 and 4, and all through, it went on pleading that LSO/LYSO technology is held by the 5th respondent alone, whereas the petitioner also manufactures the equipment with that technology. They contend that the petitioner wanted to supply an equipment with outdated technology by misleading that it conforms to the requirements under the tender. The circumstances, under which this Court can interfere with the matters of evaluation of tenders, that too, for purchase of highly sophisticated equipment, are very limited. It is only in the domain of decision making process, that this Court can examine the matter, leaving rest of it, to the technical Experts. The 4th respondent intended to establish a highly sophisticated equipment, at its institute of medical sciences. The details of tender specifications run into several printed pages. It is not necessary to refer to all of them, much less to reproduce. The area of controversy is very limited. The petitioner and the 5th respondent are manufacturers of sophisticated medical equipment and they have established their products in different countries of the world. In the tender document, the “Detector Material”, under paragraph 1.1, was mentioned as under: “The PET scanner should employ non-hygroscope latest developed material (LSO/LYSO) for detecting 511 Ke V positrons in coincidence.” Another factor at issue, is the weight bearing under 3(v). It reads as under: “Weight bearing > of 180 Kgs.” The petitioner undertook prolonged correspondence with respondents 2 and 4 and made an effort to convince them that LSO/LYSO technology need not be insisted, as an exclusive factor. After such correspondence, the 3rd respondent informed the petitioner through a communication, dated 21.08.2008, modifying condition No.1.1, as under: “The PET scanner should employ non-hygroscopic, latest developed, fast scintillators, having high-stopping- power, such as LSO/LYSO, for detecting 511 Ke V coincidence photons, due to positron interaction.” The other condition relating to weight specification was modified, as under: “Weight bearing capacity of patient bed should be > 180 Kgs.” It is not in dispute that the equipment offered by the 5th respondent has the LSO/LYSO technology, whereas the one sought to be supplied by the petitioner does not have it. It is urged that once the condition was modified, making it possible, for supply of non-LSO/LYSO machines also, it was not at all open to the respondents to confine their choice to the one with that technology. In this regard, it needs to be observed that the purchaser of an equipment that of a highly sophisticated one, must be conceded the ultimate freedom, to select the product. The only restriction is that where the purchaser happens to be a State or State Agency, its decision making process must not be tainted with factors, such as mala fides, arbitrariness or illegality. The proposition is so well-settled that it is not necessary to refer to the decided cases, on this subject. In all fairness to the petitioner, respondents 3 and 4 have relaxed the condition 1.1, paving the way for non-LSO/LYSO manufacturers also to submit tenders. That does not mean that they have given up their preference to go for the equipment with that technology. The only difference that emerges on account of the modification of the clause is that, earlier it was not open to anyone other than the manufacturer of equipment with LSO/LYSO to apply, and on account of the modification, such a possibility existed. The bench mark of the evaluation, however, remained in that. In other words, if a non-LSO/LYSO equipment is found on technical evaluation to be equivalent or superior to that technology, respondents 3 and 4 kept their options open. By no stretch of imagination, it can be construed that they have given up their preference to the equipment of the LSO/LYSO technology. Learned counsel for the petitioner made an endeavour to convince this Court that the expression, “such as” would only connote something similar and not identical. He is right in his submission, in this regard. Though etymologically the expression may lead to widen the area of consideration, it does not restrict the parameters of ultimate selection. For instance, if applications are invited for a post without confining to any particular qualification, the appointing authority cannot be said to be unjustified, if it selects a person with superior qualification, simply because persons with inferior qualification were also permitted to apply. One important aspect that needs to be taken note of is that at one stage, the petitioner pleaded that LSO/LYSO is a technology, which is monopolized by the 5th respondent. During the course of correspondence, the 4th respondent posed the following question to the petitioner. “Have you got PET CT Scanners with LSO/LYSO crystal technology?” The answer of petitioner through letter, dated 20.08.2008 was, “LSO crystal is specific to one single company (Siemens). No other company have access to this crystal.” However, the marketing material distributed through General Electronics discloses that it does manufacture PET CTs with LSO/LYSO technology. Its stand was not consistent. It varied from total denial to a qualified acceptance. The specific stand taken by respondents 3 and 4 that the petitioner wanted to withhold the sophisticated equipment to countries like India, gains acceptability to certain extent. The petitioner is not able to point out any serious defect, much less irregularity in the process of selection of the equipment. The material placed before this Court discloses that not only the petitioner, but also certain other agencies manufacture PET-CTs with LSO/LYSO technology. The respondents placed adequate material, which indicates that the petitioner, M/s. Hitachi Medical, Philips, Toshiba Medical Corporation and the 5th respondent manufacture PET-CT with LSO/LYSO crystal technology. In the brochure “Consult Lines” published by Baylor University Medical Center at Dallas, it is mentioned in page 7, as under: “”The advanced technology optimizes this scanner for a variety of clinical applications, particularly oncologic applications,” says Landis Griffeth, M.D., Ph.D., director of nuclear medicine and PET at Baylor Dallas. Specific design features, such as the high-speed LYSO PET detector elements and the ability to perform both 2-D and 3-D PET imaging, allow this scanner to provide improved image quality for current applications. It also will provide optimal functionality for future techniques that will utilize new PET imaging agents. “The Discovery-RX also contains a full- featured, 16-slice GE Lightspeed CT scanner, which not only helps minimize imaging time for patients, but also allows most patients scheduled for both a PET/CT and a diagnostic CT study to have both studies performed during the same imaging session on the same scanner,” he adds.” The GE itself issued a brochure, which mentions Discovery-RX whose specifications were mentioned, in detail, in the Consult Lines. The brochures published by Toshiba Medical Systems, Hitachi, Philips were also filed. Though price of an equipment, proposed to be purchased, may be an important factor to be taken into account, it cannot be treated as the only factor, when the purchase is of a highly sophisticated and latest equipment. Argument has been advanced, in relation to the weight bearing capacity of the machines and the alteration of the condition. This Court is not inclined to go deep into it, since the tender of the petitioner was rejected at the technical bid stage, on evaluation, with reference to an important aspect. For the foregoing reasons, the Writ Petition is dismissed. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY,J Dated:16.03.2009 Note: L.R. to be marked. (B/o) GJ