(1) wp3615-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3615 OF 2011 M/s Modular Infotech Pvt. Ltd. PETITIONER VERSUS Registrar, Dr. Babasaheb Ambedkar Marathwada University and others RESPONDENTS ..... Mr. V.P. Shintre, advocate for the Petitioner. Smt. R.K. Ladda, A.G.P. for the Respondent-State. Mr. S.S. Thombre, advocate for Respondent No. 1. Mr. G.K. Naik-Thigle, advocate for Respondent No. 6. ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 14th OCTOBER, 2011 ORAL ORDER: 1. Heard learned counsel for the parties. 2. The petitioner, by the present petition, is challenging the acceptance of tender of Respondent No. 6 by Respondent No.1 University for Digitization of Rare Books and Theses of the University. 3. As per the Tender Notice, technical as well as commercial bids for the purposes of scanning and thereafter digitizing of the rare books and theses of Respondent No. 1 University were called. The (2) wp3615-11 Purchase Committee of Respondent No. 1 University, however, rejected the technical bid itself of the petitioner. Therefore, it was not considered for commercial bids. Ultimately, the tender of Respondent No. 6 was accepted and Work Order was issued during the pendency of the present Writ Petition. Therefore, by way of amendment, the petitioner also sought cancellation of the said Work Order. 4. Mr. Shintre, learned counsel for the petitioner, adverted attention of the Court to the Condition No. 25 in the Tender Form, which is as under : "25. for Digital Library Software without open source technology (Standard Branded) the agency should either be Original Equipment Manufacturers of software or a direct reseller of the Original Equipment Manufacturers." Learned counsel submits that the papers submitted by Respondent No. 6 itself would show that it is using (3) wp3615-11 Open Source Technology by using Linux operating system with Apache for Web Server, PostgreSQL, as relational database, MySQL as source data base, Python as language and other components which are open source applications. It is further submitted that though Condition No. 25 in the Tender Form further stipulates that the Agency should either be original Equipments Manufacturer of Software or a direct Reseller of the original Equipments Manufacturer, the documents submitted by Respondent No. 6 would show that he was merely a Reseller of Info Grid Pacific Technologies, Singapore in India and was not the original Equipments Manufacturer of Software. In view of these facts, according to Mr. Shintre, the technical bid of Respondent No. 6 should have been rejected by Respondent No.1 University. 5. As regards the petitioner, learned counsel Mr. Shintre submits that the petitioner besides having experience in Document Management System, uses the Host System with Windows Server/Oracle/My SQL as a data base. He has adverted our attention to the technical proposal submitted by the petitioner (4) wp3615-11 wherein it is submitted that as the Respondent No. 1 University has selected digital library software without open source technology as per Clause No. 25, the petitioner proposes/offers "Smart DMS-Digital Library Software" based on commercial software technology. In view of all these facts, the petitioner claims that the acceptance of tender of Respondent No. 6 by Respondent No. 1 University is liable to be quashed and set aside. 6. The affidavit and the documents submitted by Respondent No. 1 and Respondent No. 6, however, would show that while the petitioner has no experience in similar type of business, insofar as Respondent No. 6 is concerned, it has the previous experience in the field. The software to be used by Respondent No. 6 is based on the IGP-ECMS Solutions. It was pointed out that Info Grid Pacific Technologies, Singapore had issued a certificate to the effect that Respondent No. 6 itself is authorized IGP:ECMS Solution Partner and a Reseller of its software applications. Merely the word "direct reseller" is not there. (5) wp3615-11 7. As regards the question of use of Open Source Technology, Respondent No. 6 has clarified that though its technology is based on Open Source Applications as detailed supra, ultimately, the Suite IGP:ECMS Solutions is a Proprietary Suite (Group of Softwares). Mr. Naik-Thigle, learned counsel for Respondent No. 6, adverted the attention of the Court to the Statement of Proprietary Software, issued by Info Grid Pacific, Singapore, which is as under : "Any claim that the Infogrid Pacific Software applications are not original and proprietary and are open source is mischievous, fraudulent and false. There is no ambiguity in the proprietary nature of our software solutions. The fact the applications are or can be used with other separately licensed open source software in no way diminishes the proprietary nature of our copyrighted software code. We reserve the right to protect our intellectual property and reputation to the full extent of the law." 8. The Purchase Committee of Respondent No. 1 (6) wp3615-11 University has considered all these facts and, therefore, came to the conclusion that the Solution offered by Respondent No. 6 works on any Operating System and, hence, there would be no additional software purchase costs. Upon a query made by the Court, learned counsel for Respondent No. 6 made a statement that the IGP:ECMS Solution is also compatible to the Windows Operating System and hence, more suitable. 9. In view of above facts and circumstances, we do not find any infirmity in the decision making process of Respondent No. 1 University. The Writ Petition is, therefore, dismissed with no order as to costs. [M.T. JOSHI, J.] [B.R. GAVAI, J.] npj/wp3615-11