IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18351 of 2009 1. HITECH HEALTH CARE THROUGH ITS PROPRIETOR SRI BISHNU THAKUR, AYACHINAGAR, BENTA, P.S- LAHERIASARAI, P.O-D.M.C., DISTT- DARBHANGA Versus 1. THE STATE OF BIHAR THROUGH COMMISSIONER, HELATH NEW SECRETARIAT, PATNA 2. THE SECRETARY, DEPARTMENT OF HEALTH, NEW SECRETARIAT, PATNA 3. THE ADDL. SECRETARY, DEPARTMENT OF HELATH, GOVT.OF BIHAR, PATNA 4. DARBHANGA MEDICAL COLLEGE & HOSPITAL LAHERIASARAI THROUGH ITS SUPERINTENDENT 5. THE SUPERINTENDENT DARBHANGA MEDICAL COLLEGE & HOSPITAL-CUM-CHAIRMAN OF THE PURCHASE COMMITTEE, LAHERISARAI, DISTT- DARBHANGA 6. THE PURCHASE COMMITTEE OF THE DARBHANGA MEDICAL COLLEGE & HOSPITAL THROUGH ITS CHAIRMAN, THE SUPERINTENDENT OF DARBHANGA MEDICAL COLLEGE & ----------- For the Petitioner :- M/S. S. S. Dwivedi, Sr. Advocate & Mr. Vinay Kirti Singh. For the State :- Mr. Prabhat Kumar Singh, S.C. XXI For the Intervenor :- Mr. S. D. Sanjay. ----- 4 19/02/2010 The petitioner has approached the High Court for a direction upon the respondents authorities including the Superintendent of Darbhanga Medical College Hospital to open his second technical bid as well as the financial bid, allow him to participate in the tender which was invited in terms of annexure-1 to the writ application. - 2 - The petitioner has cried foul in the decision making process and his contention is that for extraneous reasons and consideration his second technical bid has not been opened, as informed orally, which has the effect of ousting him from participation in the tender itself. He claims that he is eligible in every respect and his performance on that was required to be considered while taking his tender papers which included technical bid I, technical bid II and the financial bid. Impressed by the initial submissions which was made at the Bar and in absence of any material or submissions made at the initial stage of argument by respondents, the Court directed the respondents to file their counter affidavit and explain their conduct. Counter affidavit on behalf of respondent nos. 4 to 6 who are the authorities of Darbhanga Medical College Hospital for whose benefit the tender had been invited has come to be filed. In their detailed counter affidavit, they have denied each and every allegation in various paragraphs. When it comes down to the merits of the decision having been taken against the petitioner, the details are given in paragraph 8 of the said counter affidavit which reads thus: “8. That the statement contained in - 3 - para 9 of the writ application is incorrect. As the petitioner did not submit all the papers which was required in the tender term and condition. From the perusal of documentary checklist submitted by the petitioner along with his tender it is also clear that he (applicant) has not submitted the document as per requirement as follows :- I) The first requirement of the tender term was to enclose the authority letter of manufacturers or their authorised dealer, with the tender. In place of submission of above mentioned authority letter, the petitioner has enclosed the copy of Drug License, Vat Registration Certificate which were not required for the tender. II) As per the tender terms, the Audited Trading Account and Balance sheet should be enclosed after duly certified by his Chartered Accountant with the tender. In lieu of the aforesaid document, the petitioner has enclosed self attested copy of audit report with his tender which is evident from the Annexure-B (series) of present counter affidavit. III) As per tender requirement, the copy of the import license should be enclosed in case, they participate for the imported products. As the petitioner has mentioned in check list that he has enclosed the copy of import license of manufacturing Company but the fact is that neither the copy of his import license nor of manufacturing companies had been attached by him. IV) As per tender terms copy of Labour license should be attached. In place of above required document, the petitioner has mentioned in his check list that his license is “APPLIED FOR” which is also evident from the Annexure-A of the present counter affidavit. V) That it is relevant to state here that vide letter no. 3160 dated 15.9.2009, Applicants - 4 - were asked to submit any left over document relating to tender which was not enclosed with their tender form within seven days from the relevant date given. But inspite of such opportunity as aforesaid petitioner did not submit any related tender documents. VI) That it is also pertinent to mention here that petitioner has given a wrong declaration specifically in last column of the check list regarding the obstruction in supply of articles by saying that “No any type of obstruction has been made by him in supplying of the articles in D.M.C.H. is totally wrong and misleading to the facts rather, the fact is that despite of several supply orders and reminders the petitioner failed to supply the articles till date which shows the conduct of petitioner. Following are the supply orders and reminders not complied by the petitioner :- I. Order No. 944 dated 26.03.2009. II. 945 dated 26.3.09. III. 967 dated 26.3.09 IV 968 dated 26.3.09. V. 969 dated 26.3.09. VI. 970 dated 26.3.09. VII 971 dated 26.03.09. VIII 985 dated 26.03.09. IX Reminder 12 dated 31.03.09 X 13 dated 31.03.09 XI. 14 dated 31.03.09 XII Reminder 15 dated 31.03.09 XIII 16 dated 31.03.09 XIV 17 dated 31.03.09 XV 18 dated 31.03.09 XVI 19 dated 31.03.09 XVII 44 dated 24.04.09 VII) That it is also pertinent to point out here with the contention that on 31.12.08 petitioner (applicant) was ordered to the beds for the patient 78” L X 36” (Eagle export make) total 130 number vide order no. 6039 dated 31.12.08. Although he supplied the same items but not upto the satisfaction of the quality and in - 5 - size in pursuant of the supply order and concerned officer returned the same to the applicant with direction to supply the same as per supply order but no supply made by him till date which also shows the conduct of the applicant under malpractice and department lost the confidence upon him.” The above stated reasons are the reasons which ousted the petitioner from the zone of consideration and from a reading of the above stated grounds, according to the respondents, the failure is on the part of the petitioner who has failed to fulfill what was required on him to be done. It is also stated that the financial bids have been opened and an award of contract has been decided but because of pendency of the writ application final agreement or work order has not been issued. With above stated position, the Court can safely certify that there has been no wrong doing on the part of the respondents. These are substantive grounds for non opening of the second technical bid of the petitioner for he himself is to be blamed. The intervener has approached the Court on the issues which only fortify the stand taken by the official respondents in this regard. - 6 - However, before parting, this Court would surely like to record that though the respondents have succeeded in satisfying the Court with their averments and evidence on record but still it would have been better if the respondents had communicated to the petitioner the reasons for non- opening of his technical bid by way of a written communication. Instead of the petitioner coming to this Court and the respondents offering their explanation in a writ application, may be the communication made by the respondents at the stage of their decision not to open the second technical bid, may have resolved the issue at that stage. This writ application has no merit. It is dismissed. AMIN (Ajay Kumar Tripathi, J.)