IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 15000 of 2009(T) -------------------------------------- PETITIONER(S): ---------------------- M/S STERICAT GUTSTRINGS(P)LIMITED, PLOT NO.169 SECTOR-4, IMT-MANESAR,GURGAON,HARYANA. REPRESENTED BY ITS REGIONAL MANAGER, M.DHARMAPALAN. BY ADV. MR.P.DEEPAK RESPONDENT(S): ------------------------ 1. KERALA MEDICAL SERVICES CORPORATION LTD, REP.BY MANAGING DIRECTOR,THYCAUD, THIRUVANANTHAPURAM. 2. M/S.B.BRUAN MEDICAL(INDIA) PVT.LTD.,UNIT NO.1, 5TH FLOOR, EAST QUADRANT,THE IL & FS FINANCIAL CENTER, BANDRA (EAST), MUMBAI-400 051. 3. M/S.MCO HOSPITAL AIDS PVT. LTD., 32, IST MAIN ROAD,LOWER PALACE, ORCHARDS,BANGALORE-560 003. 4. M/S.SUTURES INDIA PVT.LTD., NO.472 D, 13TH CROSS,4TH PHASE, PENYA INDUSTRIAL AREA, BANGALORE-560 058. 5. M/S.FUTURA SURGICARE PVT.LTD,NO.29, BALANJANEYA TEMPLE STREET, OPP.M.S.RAMAIAH MEMORIAL HOSPITAL, KGE LAYOUT, RMV 2ND STAGE, BANGALORE-560 094. 6. M/S.HINDUSTAN LATEX LTD, LATEX BHAVAN, POOJAPPURA, THIRUVANANTAHPURAM. 7. M/S.JOHNSON & JOHNSON (ETHICON DIVISION) 499, ANNA SALAI, THENAM PET, CHENNAI-600 018. R6 BY ADV. MR.E.K.MADHAVAN, SC , HINDUSTAN LATEX R1 BY ADV. MR.M.AJAY,SC,KERALA MEDICAL SERV.CORPN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ V.GIRI, J ------------------- W.P.(C).15000/2009 -------------------- Dated this the 1st day of June, 2009 JUDGMENT First respondent issued a notification inviting tenders for supply of drugs and supplies to the Kerala Medical Services Corporation. Petitioner among others submitted tenders. Clause 4(a) which deals with Earnest Money Deposit effected by the tenderers reads as follows:- Earnest Money Deposit, IF NOT EXEMPTED, shall be equal to 1% of the total aggregate value of items tendered for, subject to a minimum of Rs.30,000/- in the form of Demand Draft favouring Managing Director, Kerala Medical Services Corporation Ltd., payable at Thiruvananthapuram. State SSIs registered with Government of Kerala are exempted from remittance of Earnest Money Deposit, provided valid SSI registration certificate from the competent authority is submitted. W.P.(C).15000/09 2 2. Petitioner had submitted a bid for several items and the correct value of the items tendered for, admittedly was in excess of Rs.3 Crores. So EMD should have been equal to 1% of the total aggregate value which means EMD should have been in excess of Rs.3 Lakhs. According to the petitioner, EMD for Rs.30,000/- alone was furnished. It seems that same mistake had been committed by another 15 persons and ultimately, Corporation declined to proceed further with the processing of the tenders submitted by the petitioner and others. Petitioner approached this Court in W.P.(C).7016/2009 which was dismissed and in appeal, a Bench of this Court required the first respondent to consider the petitioner's representation with notice to other bidders who have been provisionally selected as per Ext.P4. This was done as per Ext.P7 order and the request made by the petitioner was rejected for the following W.P.(C).15000/09 3 reasons. (a).Non submission of the requisite amount of EMD is a violation of condition 3(iv) read with 4(a) of the tender conditions. (b).There is no provision in the tender document, the terms and conditions of which you have accepted while submitting the tender offer, to accept a fresh document [additional EMD] which has been insisted and was not submitted along with the tender. (c).Giving opportunity to one company alone for rectifying a mistake committed by them is not in consonance with the principles of natural justice, even assuming the mistake is inadvertent, since 21 lowest quoted products of another 15 companies were also rejected on the same ground. (d).The main objective of the W.P.(C).15000/09 4 Corporation is to arrange the timely procurement and supply of essential and life saving drugs to the Government Hospitals catering to the needs of the poorest of the poor in the society. Since tenders for almost all the items are concluded, changing of the present bid ranking of the products for which you are claiming eligibility will defeat the very purpose of the objectives of the Corporation. (e).M/s Beryl Drugs Ltd, have already made a request to be permitted the opportunity to submit additional EMD, if you are extended this benefit. if so the L1 position of another 21 products as mentioned in the above table should also be changed. Also the bid ranking of many products quoted by the 15 rejected tenders will have to be changed. This may lead to a floodgate of objections from all the similarly affected tenderers and may disrupt the entire procurement process of KMSCL for 2009-10 and will adversely affect W.P.(C).15000/09 5 the supply of essential drugs to the hospitals. Hence your request in Ext.P5 representation to permit you to submit additional EMD cannot be accepted and your representation is disposed of accordingly in compliance with the judgment of the Honourable High Court.” 3. Ext.P7 has been challenged in this writ petition. 4. I heard Mr.Deepak learned counsel for the petitioner and Mr.M.Ajay, learned Standing Counsel for the first respondent. 5. Mr.Deepak contends that no doubt there is non compliance of clause 4(a) in so far as the EMD has been furnished only to the extent of Rs.30,000/-. But tender conditions do not specifically contemplate a rejection of the tender for W.P.(C).15000/09 6 inadequate EMD, he contends. Therefore, the clause should have been considered as only directory and an opportunity should have been given to the bidder to make up the deficit EMD. 6. Mr.Ajay, on the other hand, submits that the requirement of furnishing an EMD is made mention of not only in clause 4 but in clause 3(iv) and (vii) as well. Therefore, a reading of the tender conditions would show that the tender which is not accompanied by the requisite amount of EMD is liable to be rejected. After all, the petitioner should have known the correct value of the items for which it had tendered and therefore, it was quite possible for the tenderer to effect EMD by collecting 1% of the aggregate value of the items for which it had submitted the tender. It will be open to the tendering authority to refuse to look into the tender which is unaccompanied by the EMD. In the present case, an EMD which is inadequate could, in W.P.(C).15000/09 7 circumstances, be treated on the same footing. It is true that the Bench of this Court had, without deciding the issue finally, directed the 1st respondent to consider the petitioner's representation, after notice to the affected persons. That was done and a reading of Ext.P7 would show that a reasonable view has been taken in this regard by the 1st respondent. 7. In my view, the question of permitting the petitioner to make up the deficit EMD or permitting any other person similarly situated, would have arisen if there was a clause which enables the tenderers to make up the deficit EMD at any point of time. No such clause is brought to my notice. If that be so, it cannot be said that the view taken by the 1st respondent that the petitioner cannot be permitted to cure the defect by making up the deficit EMD is unreasonable or perverse. Same treatment has been given to the other tenderers W.P.(C).15000/09 8 also, who had failed to furnish an adequate EMD in terms of clause 4, and it would therefore, indicate that there cannot be a challenge to the decision taken by the 1st respondent on the ground of violation of Article 14 of the Constitution of India. This Court's role is only by way of judicial review to find out whether any unreasonableness or perversity has been made out. No such grounds have been made out in the instant case and finding that the writ petition is bereft of merit, it is dismissed. V.GIRI, Judge mrcs