IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 7968 of 2009(M) ------------------------- PETITIONER(S): --------------- M/S.BHARAT BIOTECH INTERNATIONAL LTD., GENOME VALLEY, TURKAPALLY, SHANEERPET, HYDERABAD-500078, ANDHRA PRADESH. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.BIJU BALAKRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA MEDICAL SERVICES CORPORATION LTD., NRHM BUILDINGS,GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695035. ADV. SRI.M.AJAY,SC,KERALA MEDICAL SERV.CORPN FOR R2 BY GVT. PLEADER SRI. SANTHOSH P.N. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC,J. --------------------- W.P.(C).No.7968 OF 2009 ------------------------ Dated this the 26th day of March, 2009. JUDGMENT Prayer in this writ petition is to quash Ext.P2, in so far as it rejects the petitioner's tender for supply of anti rabies vaccine. There is also a prayer to declare that the petitioner is qualified in the Technical Bid submitted by them in response to Ext.P1, for the supply of anti rabies vaccine. Consequential reliefs are also sought for. 2. Ext.P1 is the tender notice issued by the 2nd respondent inviting tenders for the supply of drugs and supplies to it. Among the various conditions in Ext.P2, in so far as this case is concerned, what is relevant is clause 2(c) dealing eligibility criteria, which reads as under. “Tenderer should have at least 3 years Market Standing as a manufacturer/importer for each drug quoted in the tender.” WP(c).No.7968/09 2 3. Petitioner submitted their bid in pursuance to Ext.P1. Ext.P2 shows the reasons for rejecting its bid. In so far as the petitioner is concerned, the reason stated in Ext.P2 reads as under. “An interim license dated 10/06 is seen produced along with the original tender document for Anti Rabies Vaccine. This is issued only for testing purpose. The additional document produced as product permit for Anti Rabies Vaccine is seen issued on 10/2006. Hence there is no market standing for Rabies Vaccine and rejected. Other two products are accepted.” 4. Learned Sr. Counsel appearing for the petitioner refers to Ext.P7, a letter issued by the Drugs Controller General(India) and contends that the company was granted interim manufacturing licence on 20.12.2005 and that a final manufacturing licence on 14.12.2006. It is therefore stated that the conclusion in Ext.P2 that the company did not have market standing as specified in Ext.P1 tender notice is erroneous. Learned Senior Counsel also referred to Ext.P3, the Government Order dated 20.8.2007 and contended that in WP(c).No.7968/09 3 pursuance to the said order, large quantities of anti rabies vaccine have been supplied by the petitioner. Reference is also made to Exts.P4 to P6 bills for the supply that the petitioner has made in this behalf. It is also stated that the present lowest tenderer viz M/s. Human Biological Institute was a defaulter and it was therefore alternate arrangement of supply was made by the Government as per Ext.P3. Counsel therefore submits that the decision taken by the tender committee in rejecting the tender is arbitrary and calls for interference. 5. Standing counsel appearing for the 2nd respondent on instructions submit that, in terms of Ext.P1, the prescribed market standing is that of 3 years and reference is made to clause 2(c) extracted above. It is submitted that the licence issued to the petitioner on 20.12.2005, a copy of which has been made available to me, is only a permission limited to central drug testing and was issued with a condition that the final marketing of the said vaccine will be granted after WP(c).No.7968/09 4 obtaining 122-B clearance under the Drugs and Cosmetics Act and Rules. His contention is that, this licence only enables the petitioner to manufacture the drug for testing purposes. It is stated that, admittedly final manufacturing licence was issued to the Petitioner only on 14.12.2006. It is stated that counting the petitioner's marketing standing from the date of issue of licence, the petitioner does not satisfy the market standing as specified in the tender notice. According to him it was therefore that the petitioner's bid was rejected 6. Admittedly, Ext.P1 is the tender notice that was issued by the 2nd respondent. The tender notice was issued on 31.12.2008 and the last date for receipt of tender was on 23.1.2009. Clause 2(c) extracted above, prescribes that the tenderer should have at least 3 years market standing as manufacturer/importer for each drug quoted in the tender. If one is to count the petitioner's eligibility from 20.12.2005, when the petitioner was issued interim licence, certainly the petitioner satisfies this tender condition. However a reading of WP(c).No.7968/09 5 licence, which has been made available by the learned Standing Counsel appearing for the 2nd respondent, shows that this licence did not enable the petitioner to manufacture drug for marketing purposes but only enabled the petitioner to manufacture the same for testing at the Central Drug Lab. The licence also specified that final licence will be issued after obtaining 122-B clearance. Therefore, in my view, the eligibility of the petitioner cannot be reckoned on the basis of the interim licence that was issued on 20.12.2005. As seen from Ext.P7 relied on by the counsel for the Petitioner, the final permission to manufacture and marketing drugs under Rule 122-B of the Drugs and Cosmetics Rules 1945 was accorded to the Petitioner only on 14.12.2006. A copy of this licence also has been made available by the Standing Counsel. Therefore, the petitioner's eligibility can be only reckoned from 14.12.2006. If that be so, neither on the date of tender notification nor on the last date for submission of the tender, petitioner satisfied the eligibility laid down in clause 2(c) of WP(c).No.7968/09 6 Ext.P1 and therefore the decision of the 2nd respondent in rejecting the tender cannot be faulted. 7. Counsel for the petitioner relied on Ext.P3, the Government Order, by which taking note of the default committed by the lowest tenderer, alternate arrangement was made for purchasing anti rabies vaccine from the Petitioner. According to them, in view of the default that was committed the lowest tenderer is not eligible to be pre-qualified pursuant to Ext.P1. In so far as the supply made pursuant to Ext.P3 is concerned, that cannot render the petitioner eligible in terms of Ext.P1. This is for the reason that, the supply by Ext.P3, evidently was not based on a tender, but was, by negotiation. In this case the supply can only in response to the tender and the eligibility of tenderer has to be determined in terms of the tender conditions. 8. In so far as the alleged ineligibility of the lowest tenderer is concerned, first of all the lowest tenderer namely M/s. Human Biological Institute, which is stated to be a WP(c).No.7968/09 7 Government of India undertaking, is not a party to this writ petition nor the petitioner has a case that the said company has been black listed by the authorities. If that be so, this court will not be justified in probing any further about the eligibility or otherwise of M/s. Human Biological Institute. On the petitioner's own showing, since it does not satisfy the eligibility as laid down in Ext.P1 tender notice, I am not satisfied that the Petitioner has made out a case for interference. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.7968/09 8