WP(C) NO. 6177/2008 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) No. 6177/2008 Reserved on : November 10th, 2008 % Date of Decision : November 21st, 2008 M/s. Bipson Surgical Private Limited ..... Petitioner Through: Mr. S.C. Singhal, Advocate Versus Govt. of NCT of Delhi & Anr. ..... Respondents Through: Mr. Madan, Advocate for Respondent Nos. 1 & 2. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE MANMOHAN 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes J U D G M E N T MANMOHAN, J 1. The Petitioner has filed the present writ petition under Article 226 of the Constitution of India praying for issuance of an appropriate writ, order or direction to the Respondents to either consider the Petitioner’s tender or in the alternative to quash the entire tender process. 2. Briefly stated, the facts of this case are that the Respondent No. 2 floated a tender for surgical consumables through Central WP(C) NO. 6177/2008 Page 2 of 5 Procurement Agency being Tender Enquiry No. 2/DHC/CPA/2008 by publishing an advertisement in the newspaper “The Hindustan Times” on 7th July, 2008. It is pertinent to mention that in the tender documents it was specifically stipulated that information had to be provided in a CD and non-submission of the same would render the bid liable for cancellation. The relevant portion of the tender is reproduced hereinbelow for ready reference :- “2. Details of surgical items quoted in envelope CPA-2 as per enclosed Performa placed at Annexure-B. a) Information above (as per annexure B) have to be provided in CD. b) Non submission of information above (as per Annexure-B) in CD will liable to cancellation of tender without assigning any reason/notice.” 3. Mr. S.C. Singhal, learned Counsel for the Petitioner stated that officials of the Respondents illegally and deliberately removed the CD filed by the Petitioner along with his tender. The relevant averments in the writ petition with regard to the CD is reproduced hereinbelow :- “15….on enquiry it was revealed that the tender of the Petitioner has been rejected on the ground that it does not contain the CD and similarly tender of M/s. RomSons Scientific Surgical and M/s. Sahnisons were also rejected. It is submitted that so far as the Petitioner is concerned, it was a manipulation on the part of the officials/staff of the Respondent as Respondent immediately made personal complaint to the concerned official who called for the tender file and it was demonstrated by WP(C) NO. 6177/2008 Page 3 of 5 the Petitioner representative to the CMO that his list as detailed out in the CD was enclosed and that the list contained the fact that CD is enclosed and it was also seen that the Pins were found removed by virtue of which CD was affixed / attached to tender document.” 4. In the alternative, it was submitted by Mr. Singhal that what was contained in the CD was duly furnished on paper and thus the Respondents failed to appreciate that mere filing of CD served no purpose. 5. Mr. Madan, learned Counsel for Respondents contended that the technical bids were opened on 4th August, 2008 by a Technical Evaluation Committee comprising of gazetted officers in the presence of representatives of all the bidders. He further contended that as no CD was found along with the Petitioner’s technical bid, the Petitioner’s tender along with three other similar cases was rejected. He stated that decision to that effect was announced in presence of all the bidders. 6. In the counter-affidavit also the Respondent has taken a categorical stand that no CD was found along with the Petitioner’s technical bid, as was mandatorily required in accordance with the terms and conditions of the tender documents. However, learned Counsel for the Respondent stated that it seems as if the Petitioner had filed its CD in the sealed price bid envelope, which had not been opened by the Petitioner. WP(C) NO. 6177/2008 Page 4 of 5 7. During the hearing held on 10th November, 2008 we had asked the Respondents to produce the Petitioner’s price bid and after getting confirmation from the Petitioner’s Counsel that the Petitioner’s seal was intact, we had opened the Petitioner’s price bid. Along with the Petitioner’s price bid we had found a CD filed by the Petitioner in a sealed cover. 8. When confronted with this situation, the Petitioner’s Counsel stated that the Petitioner had filed two CDs, one along with technical bid and the other along with price bid. It is pertinent to mention that the Petitioner has neither in the writ petition nor in its rejoinder taken the stand that it had filed two CDs, one along with technical bid and another with the price bid. In any event, in view of the specific denial by the Respondents, which is supported by the contemporaneous documents like the Minutes of Meeting of Technical Evaluation Committee, which has been signed by as many as six gazetted officers, we are of the view that in this writ petition we cannot reach a conclusion that the Petitioner had filed a CD along with its technical bid or that the Petitioner’s CD had been removed mala fide. In our view, the Petitioner’s case at best raises several disputed questions of fact which cannot be adjudicated upon except by extensive evidence and cross examination which we in the writ jurisdiction cannot go into. 9. As far as the Petitioner’s submission with regard to the WP(C) NO. 6177/2008 Page 5 of 5 essentiality of a CD is concerned, we are of the view that in view of the mandatory stipulation in the tender and the fact that the Petitioner had participated in the tender without demur, the Petitioner is estopped from challenging the said tender term. It is also relevant to note that in the present writ petition there is no challenge to the legality or validity of any of the tender terms. Therefore, we are of the view that all bidders had to submit a CD along with their technical bid and non-furnishing of the CD would entitle the Respondents to reject the bid of the tenderers – as was done in the present case. 10. Consequently, the present writ petition is dismissed. The interim order dated 25th August, 2008 stands vacated. MANMOHAN, J MUKUL MUDGAL, J November 21st , 2008 rn