Delhi High Court- In a writ petition filed seeking quashing of the auction for operation of ‘Janaushadhi Shop’ at Safdarjung Hospital, Delhi as the terms related to high turnover and prior experience were arbitrary and irrational, the Division Bench of Manmohan Acting C.J.*, Manmeet Pritam Singh Arora. JJ., said that the decision of tendering authority of forming such terms as higher turnover and prior experience is not arbitrary as there is presumption that an entity with higher net worth may enhanced managerial capacity to deal with a shop which has a high turnover. Therefore, Court dismissed the present petition.
Background-
In an Instant case Respondent issued Notice Inviting Tender (NIT) to establish and operate a 24×7 hours ‘Janaushadhi Shop’ for selling generic drugs approved under ‘Pradhan Mantri Bhartiya Janaushadhi Scheme’ (‘Scheme’) on 25-04-2024. This shop is to be set up at Safdarjung Hospital, Delhi. The Petitioner was aggrieved by the eligibility and technical criteria prescribed in the NIT condition nos. 2(ii) and 2 (iv). Which were-
- 2(ii)- Bidder should have a minimum of six years of experience in the pharmaceutical business and minimum a year’s experience for operating ‘(Pradhan Mantri Bhartiya Janaushadhi Kendra’ (‘PMBJK’).
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2(iv)- Technical criteria and weightage matrix for evaluation- higher marks to a bidder who had a turnover excess of Rs. 20 Crores.
Therefore, the last date to file a bid was 07-05-2024 and the assessment of the bid should be concluded by 10-05-2024. Whereas the petitioner starts the proceedings on 08-05-2024.
Analysis-
The Court, after the perusal of all the contentions and facts was of the view that there was an inexplicable delay by the Petitioner in approaching this Court. The NIT was admittedly, issued on 25-04-2024 and the last date of submission of the bids was 07-05-2024. The Petitioner, however, remained silent during the said period and has initiated the present proceedings only on 08-05-2024. The petitioner by such inordinate delay had disentitled itself from maintaining the present petition.
The Court while reviewing the petition on merits was of the view that the tendering authority has freedom to provide the eligibility criteria and a bidder cannot be permitted to challenge the bid condition which does not suit him/her and is inconvenient to him.
The Court referred to the judgement of Michigan Rubber (India) Ltd. v. State of Karnataka (2012) 8 SCC 216 wherein Supreme Court said that “Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work.”
The Court again referred to Directorate of Education v. Educomp Datamatics Ltd. (2004) 4 SCC 19 wherein Supreme Court was of the view that ‘unless the terms floated by tendering authority were not arbitrary and discriminatory, the Court shouldn’t interfere in it.’
The Court was of the view that Safdarjung Hospital’s high patient footfall required for prior managerial experience. Requirement of minimum one year’s experience was not unreasonable. For turnover, bidders must have an average of at least eight crores over three years, with higher turnover earning more marks. The authority’s preference for higher turnover was not arbitrary and it was based on the belief that companies with higher net worth can manage high-turnover shops better. As, the terms here are not arbitrary and discriminatory the Court cannot interfere with it.
[Medifirm Pharmacy LLP v. Union of India, 2024 SCC OnLine Del 3555, decided on: 10-05-2024]
*Judgement Authored by: Acting Chief Justice Manmohan
Advocates who appeared in this case:
For Petitioner: Ujjawal Jha and Rohan Gupta, Advocates.
For Respondents: Vikrant N Goyal, Jitendra Kumar Tripathi, Anushka Jaiswal, and Abhishrut Singh, Advocates.
