Janak Healthcare Pvt. Ltd & Ors. v. Municipal Corporation of Gr. Bombay

Mr. Chirag Balsara, the learned counsel appearing for the petitioners, submitted that the decision taken by the respondent no. 1 in rejecting the bid of the petitioner by not giving the petitioner an opportunity to rectify the deficiencies, if any, which were found in the technical bid which is referred to as Packet A. It is submitted that in all eight tenderers for the aforesaid tender came to be considered by the respondent no. 1 and as required respondent no. 1 held a meeting of the standing committee of the respondent no. 1 on 17th October, 2006 which was attended by petitioner no. 2 and this fact stands duly established by the attendance sheet which shows that the petitioner 9 no. 2 attended the meeting held on 17th October, 2006 but he was not informed that there was any deficiency in the tender offer submitted by petitioner no. 1.

It is the case of the petitioners that it was only on February 14, 2007 that the petitioners for the first time came to know that there was a meeting of the standing committee of the respondent no. 1 held on February 14, 2007 and that the standing committee has not even considered the petitioners bid as it has been informed that the petitioners bid was not responsive and that prior to February 14, 2007 the petitioner at no point of time knew the aforesaid minor technical deficiency in their technical bid. The petitioner has placed reliance on the minutes of the meeting of the standing committee held on 14.2.2007 and particularly item no. 32 where the subject of tender of supply of hospital furniture for Nair Hospital vide case no. CS/22/TDR/PO3 of 2006-07 was taken up for discussion and approval of the standing committee under section 69 (c) as amended of the Mumbai Municipal Corporation Act.

7.7.2004 and the copy of the specifications and mandatory and other conditions specified in the tender document. Otherwise there was no reason why the petitioners would not have met the deficiencies i.e. non-filling of particulars in page no. 10 of the bid in Packet "A". It is submitted that if this Court examines the said document it will find that though the petitioners have complied with all the requirements, which is not disputed, probably due to inadvertence the petitioners failed to fill in the name of the proprietor/ Managing Partner/ Managing Director/ Holder of the Business and the subsequent paras relating to the declaration which was highly technical in nature. It is submitted that if the application is read as a whole 12 even such a deficiency cannot be held to be sufficient to reject the tender of the petitioner as non-responsive.

Mr. Balsara, the learned counsel for the petitioners, submitted that one of the plea now put forth by the respondent corporation is that on the date of the scrutiny of the tender document, particularly packet "A", came to be placed, the stand taken by the respondent is that the parties were orally informed of the deficiencies and discrepancies, if any, and it was expected of them to have rectified the same. It is submitted that such a plea cannot be sustained in law for the reason that there is no contemporaneous record to show that such an exercise was undertaken while the bids were scrutinised. Otherwise there was no reason why the petitioners would not have rectified such a minor deficiency. Secondly it is submitted that the respondent now cannot take advantage of the same by raising a plea of delay and laches in approaching this Court on the basis that the offer was effective only for 120 days. It is submitted that the petitioner has made a categorical statement that it is only when the matter was taken up by the standing committee for its consideration that the petitioner learnt that their tender has been rejected solely on the ground that their tender is treated as non-responsive as they have not filled page 10 of the copy of the specifications and mandatory and other conditions as per the tender 13 condition and, therefore, the impugned decision of the respondent no. 1 to treat the petitioners tender as non-responsive deserves to be quashed and set aside and the respondent no. 1 should be directed to consider the price bid i.e. Packet "B" of the petitioner.

Mr. Balsara, the learned counsel for the petitioners, has also expressed that how the respondent no. 1 can come up with the plea that the petitioner has come for redressal before this Court after Packet ’B’ consisting Price List by each Bidder is opened on

30.11.2006 and after the Corporation has sanctioned the same and that the petitioner after being aware of the price quoted by other bidders has offered that they are ready to supply at the lowest price which cannot be accepted. It is submitted that the contention of the petitioner that his quotation in so far as the price bid is concerned that the Packet "B" was submitted along with Packet "A" and whatever he has offered will be required to be taken into consideration to decide whether the petitioner’s bid is lowest or not. It is submitted that the petitioner is the model employer of repute and is lowest on various counts compared to the price bid of respondent nos. 3 to 5 and in case the petitioner is not permitted to participate in the bid, it would cause loss to the Municipal Corporation as there is a difference of 24.63% between the petitioners offer and the recommended price at which the contract is sought to be awarded by respondent no. 1 in respect of 14 the said 28 items and, therefore, it will also be not proper in the interest of public at large and particularly the respondent no. 1 to ignore the petitioners bid which calls for intervention by this Court. In support of his contention, Mr. Balsara placed reliance on the decision of the US Supreme Court Vitarelli v. Seaton, 359 U.S. 535 in the case of Vitarelli v. Seaton, 359 U.S. 535 Vitarelli v. Seaton, 359 U.S. 535 (1959) which has been followed by our Court and one such (1959) (1959) decision which is cited before us, as an authority on the subject, is the one rendered by the Supreme Court in Dr. Amarjit Singh Ahluwalia, v. The State the case of Dr. Amarjit Singh Ahluwalia, v. The State Dr. Amarjit Singh Ahluwalia, v. The State