M.M. Das, J.
1. The Project Director, Orissa Health Systems Development Project, published a tender call notice in different newspapers under the nomenclature 'INVITATION FOR BIDS', International Competitive Bidding, inviting tenders in sealed cover for supply of X-Ray machines of different specification and other medical equipments/ machines from eligible bidders. For convenience said tender call notice is extracted hereunder :
'Government of Orissa,Orissa Health Systems Development Project,Behind Capital Hospital, Unit-6,Bhubaneswar -751001, India Supply of X-Ray MachinesandMedical Equipment Credit No. 1TF-041 IN IFB No. : OHSDP/ICB/03Ist SEPTEMBER 2003 INVITATION FOR BIDSINTERNATIONAL COMPETITIVE BIDDING
1. The Government of Orissa has received a credit from the Interim Trust Fund (ITF) administered by International Development Association in various Currencies towards the cost of Orissa Health Systems Development Project and it is intended that part of the proceeds of this credit will be applied to eligible payments under the contracts for which this Invitation for Bids is issued.
2. The Project Director, Orissa Health Systems Development Project now invites sealed bids from eligible bidders for the supply of goods and related services as listed below :
Sl. Item Description Quantity Bid Security (Rs.) No.1 X-Ray Machines, 300mA 30 4,00,000/-2 X-Ray Machines, 100mA 62 3,50,000/-3 X-Ray Machines, 60mA 30 1,00,000/-4 X-Ray Machines, Dental 32 75,000/-5 Ultra Sound Scanners 30 4,50,000/-6 Computerised Treadmills 5 1,25,000/-7 Cystoscopes 32 3,00,000/-8 Semi Auto Analysers 32 1,75,000/-9 QBC Machines 22 2,00,000/-(Hematoparasite DetectionSystems)
3. Bidding will be conducted through the international competitive building procedures specified in the World Bank's Guidelines : Procurement under IBRD Loans and IDA Credits, and is open to bidders from all countries as defined in the Guidelines.
4. Interested eligible bidders may obtain further information from the Deputy General Manager (Procurement), ELMARC Limited, Bhubaneswar and inspect the bidding documents at. the address given below from 10.30 A.M. to 4.30 P.M.
5. A complete set of bidding documents in English may be purchased from 4th September 2003 to 22nd October 2003 by interested bidders on the submission of a written application to the address below and upon payment of a non-refundable fee of Rs. 4000/- (for domestic bidders) or US $ 100 (for overseas bidders) in the form of Demand draft/Cashier's cheque/certified cheque in favour of ELMARC Limited payable at Bhubaneswar, India. Bidding documents requested by mail will be dispatched by registered/speed post/courier on payment of an extra amount of Rupees 500 (for domestic bidders) and US $ 50 (for overseas bidders). No liability will be accepted for loss or late delivery.
6. All bids must be accompanied by a bid security in the currency of the bid or US Dollars or in Indian Rupees equivalent to the Indian Rupee value specified at Clause 2 above/Section VI-Schedule of Requirements of the bidding document and must be delivered at the address given below on/ or before 15.00 hrs (IST) on 23rd October 2003. Bids will be opened at 15.15 hrs on 23rd October 2003, in the presence of the bidders or their representatives who choose to attend on the specified date and time at the office of the ELMARC Ltd. at the address given below :
Deputy General Manager (Procurement),
ELMARC Ltd., 201-202, Mancheswar
Industrial Estate,
Bhubaneswear-751010, Orissa, India
Phone: 91-674-2583689, Fax: 91-674-
2550779
Project Director,
Orissa Health Systems Development Project'
2. Pursuant to the said tender call notice, the petitioner, opp. party No. 4 and four others after purchasing the tender papers submitted their bids for supply of 30 numbers of X-Ray machines of 300m-A. It is the admitted case of the parties that out of the six bidders, four were treated as non-responsive and only the bids made by the petitioner and opp. party No. 4 were considered. The petitioner, in this writ petition, alleges that even though he fulfilled all the conditions and complied with all necessary requirements as stipulated in the NIT and tender paper and was the lowest tenderer having quoted Rs. 1,29,30,000/- against the offer of the opp. party No. 4 which was Rs. 1,49,40,000/-, contrary to the norms for consideration of tenders and by a faulty decision making process, the opp. parties 1 and 3 have placed orders for supply of the said X-Ray machines with the opp. party No. 4 on accepting his offer. The petitioner has further alleged in the petition that the action of the opp. parties 1 to 3 in accepting the offer of opp. party No. 4 is arbitrary and against public interest and the interest of the State. The petitioner has, therefore, prayed to quash the notification of award made in favour of opp. party No. 4 and declare that the petitioner being the lowest bidder is entitled to the contract for supply of X-Ray machine in question. It is an admitted case of the parties that the entire purchase of all the machines as per the tender call notice is being funded by the World Bank.
3. A counter affidavit has been filed by the opposite parties 1 and 2, inter alia, stating that the State of Orissa for its Health Systems Development Project (in short 'OHSDP') has entered into a Project Agreement with International Development Association on 13-8-1998. On the basis of the said agreement, the State of Orissa was funded for procuring the 30 numbers of X-Ray machines of 300m-A, through its appointed and approved Procurement Consultant, Electronic Maintenance and Repair Corporation of Orissa Ltd., (in short 'ELMARC'). Technical Specification with regard to the said X-Ray machines as mentioned in Col. 7 of the bid documents were stipulated by 'ELMARC It is also stated in the counter affidavit that the State of Orissa constituted a Bid Evaluation Committee to test as to whether the offers satisfy the technical specification. It is further stated that the project being funded by the World Bank, is a time bound project scheduled to be completed by 31-3-2005 and in the event the funded amount is not exhausted by the said date, then it will be declared as unsatisfactory performance of the project by the World Bank and the State will sustain total loss, which would be against public interest. It is the case of the opp. parties 1 and 2 that as the petitioner did not satisfy the technical specification with regard to the X-Ray machines in question, his bid was not accepted. The allegations regarding faulty decision making process, arbitrariness and action said to be against public interest, have been denied by the State in the counter affidavit.
4. The successful bidder, opp. party No, 4 has also filed a counter affidavit denying the allegations made by the petitioner and justifying the action of the State.
5. Mr. Bijan Ray, learned counsel appearing for the petitioner, advanced two contentions, namely, (i) the X-Ray machines proposed to be supplied by the petitioner, is technically superior to that which is proposed to be supplied by the opp. party No. 4 (ii) from the documents produced by the petitioner it would be clear that the orders have been placed with the opp. party No. 4 as a result of faulty decision making process which is arbitrary and unreasonable.
6. In order to substantiate his contentions, Mr. Ray submitted that the evaluation report for X-Ray machines 300m-A in Annexure-10 to the additional affidavit filed by the petitioner would go to show that the petitioner was the lowest tenderer and the opp. party No. 4 was the second lowest and accordingly, the case of the petitioner was recommended for procuring the X-Ray machines whereas from Annexure-B/1 to the counter affidavit filed by the State it would be seen that the recommendation in favour of the petitioner has been scored out and the opp. party No. 4 has been recommended. He further submitted that this was done at the instance of Dr. S. Samal, Professor and HOD, Radiology, S.C.B. Medical College & Hospital, who was taken into the committee by the verbal orders of the Minister only on 15-12-2003 and as such, he could not have signed Annexure-B/ 1 i.e. the recommendation in favour of opp. party No. 4 on 29-1-2003. It is further submitted on behalf of the petitioner that though in Sl. No. 8 of the tender made by the petitioner with regard to the technical specification mentioned in Clause 14.3 of the tender paper, instead of a 'Catapult Bucky', the petitioner mentioned that the X-Ray machine to be supplied by it, will have 'Oscillating Bucky' but on that ground its offer could not have been rejected as according to the petitioner, a 'Catapult Bucky' is now obsolete and an 'Oscillating Bucky', is a better technology which gives better result. For convenience Sl. No. 8 of the offer made by the petitioner is extracted below :
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Table Table 'MOTORBX' Yes
Motorised table (horizonal to verti- It is motorized all position table from Complies
cal 30 degree, 75 degree, 90 degree, horizonal to vertical and 15 degree with ten-
0 degree and 12 degree to 15 degree trendelenburg with parking facility der spec.
trendelenburg parking facility with with locking arrangement.
locking arrangement). Bucky
Backy Full counter balanced oscillating -do-
Full counter balance catapult bucky with moving brid of ratio 8:1 better
bucky electromagnetically arrestable and 10 lines/cm. Bucky is capable specifica-
with moving grid of ratio 8:1 and of travelling entire length of the tion on
40 lines/cm. Bucky capable of travel- table. Cassette upto size 14'xl7'. of grid is
ling entire length of the table. Cass- Fluoro screen assembly (SFD) is provided
ette tray to hold maximum size 17' x mounted on the table.
14' size cassette. Fluoro screen
assembly housing with the table.
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7. Mr. Ray relying on the decision of the Supreme Court in Sterling Computers Limited v. M. and N. Publications Ltd., : AIR1996SC51 contended that while awarding contracts in respect of the properties belonging to the State, the procedure adopted by the authorities is to be judged in the light of Article 14 of the Constitution. He also cited the decisions of the Supreme Court in Unique Construction Corporation v. City and Industrial Development Corporation of Maharashtra Ltd., : (1996)7SCC66 and also judgment dated 2-2-2005 passed by this Court in W.P.(C) No. 673 of 2005, Blue Star Ltd. v. State of Orissa and submitted that the terms and conditions for acceptance of tender for supply of medical equipments to the Government are to be strictly followed by the authorities so that the tender process is fair, transparent and does not include any element of arbitrariness. Relying upon the decision in the case of Ramana Dayaram Shetty v. The International Airport Authority of India, : (1979)IILLJ217SC , Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd., : (1997)1SCC53 and Balangir Trading Co. v. Bharat Sanchar Nigam Limited, 2003 (Supp.) OLR 626, Mr. Ray contended that, on the Court, finding that acceptance of tender of the opp. party No. 4, by the State is not fair and transparent, this Court should set aside the tender process in the present case.
8. Mr. B. K. Mahanti, learned Advocate General, on the other hand, contended that in the present case, the X-Ray machines and other equipments as per the NIT in Annexure-1 are to be purchased by the State for which funds have been, provided for by the World Bank and as per the terms and conditions stipulated in the agreement with the World Bank, the purchase is to be made by international bidding. Four types of X-Ray machines were to be purchased as per the N.I.T. From out of the same, the petitioner submitted the bids for two items i.e. X-Ray machines 300mA-30 Nos. and X-Ray machines 100mA-62 Nos. Mr. Mahanti submitted that uniform modality was adopted for making selection from amongst the bidders, by the same Selection Committee. Though it is true that on oral instruction of the Health Minister, Dr. Samal was taken to be a member of Selection Committee but no illegality could be attributed on that account, to the State Government, on whose behalf ELMARC was to select the appropriate bid. He brought to the notice of the Court that the same Selection Committee which included Dr. Samal, to which the petitioner has taken an exception in this case, accepted the bid of the petitioner for supply of 62 numbers of X-Ray machines of 100mA and therefore the petitioner cannot approbate and reprobate at the same time.
9. We find from the record, that the submission of the learned Advocate General, that Annexure-10, basing on which the petitioner contended that his bid was the lowest, was a draft prepared by ELMARC whereas Annexure-B/1 is the final selection made by the Selection Committee appointed for the purpose, appears to be correct. The contention of the petitioner that Dr. Samal having been inducted as a member of the Selection Committee on 15-12-2003 could not have signed Annexure-B/1 on 29-1-2003, cannot be accepted since from the documents produced it is evident that Dr. Samal was taken as a member of the Selection Committee on 28-1-2003 and not on 15-12-2003. Further, while selecting the petitioner's bid for supply of X-Ray machines of 100mA, a comparative statement is similar to Annexure-B/1 was also prepared on 29-1-2003 where Dr. Samal has also put his signature on the same day and thus, the petitioner cannot allege that the said Dr. Samal was not a member of the Selection Committee on 29-1-2003.
10. Learned Advocate General has relied upon the decisions of the Supreme Court in E.P. Royappa v. State of Tamilnadu, : (1974)ILLJ172SC , Bharat Singh v. State of Haryana, : AIR1988SC2181 , Raunaq International Ltd. v. I.V.R. Construction Ltd., : AIR1999SC393 , Balco Employees Union (Regd.) v. Union of India, : (2002)ILLJ550SC , Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd., : (1997)1SCC738 , Union of India v. S.B. Vohra, : AIR2004SC1402 , Poddar Steel Corporation v. Ganesh Engineering Works, : [1991]2SCR696 and Tata Cellular v. Union of India, : AIR1996SC11 , in support of the contention that the process of selection of bid in the present case was fair and transparent without any illegality or element of arbitrariness and further no fault can be attached to the decision of the State in selecting the opp. party No. 4 for supply of 300mA X-Ray machines as at each stage of the process of selection, starting from the NIT, prior approval of the World Bank, as required under the terms of the agreement, was obtained. He has produced copies of the documents showing that the conditions of the NIT and tender document after being framed were duly approved, by the competent authority of the World Bank. Even after selection of opp. party No. 4, the process of selection in its entirety was also approved by the said competent authority. He further contended that there is absolutely no chance of any illegality or arbitrariness or unfairness creeping into the process of selection, which had numbers of checks and balances.
11. Mr. I. Mohanty, learned counsel for the opp. party No. 4 while supporting the arguments advanced on behalf of the State submitted that the petitioner having been selected by the same Selection Committee to supply X-Ray machines of 100mA cannot challenge the process of selection of the opp. party No. 4 for supply of X-Ray machines of 300mA and such challenge made by the petitioner places him as a fence sitter.
12. In reply to the contention raised by the petitioner with regard to the question of acceptability of the petitioner's bid, on account of the fact that though it is stated in the tender paper in Sl. No. 8 with regard to technical specification mentioned in Clause 14.3 of the tender paper that the X-Ray machine which would be supplied by the petitioner will have 'Oscillating Bucky' instead of 'Catapult Bucky' as mentioned in the tender document but the X-Ray machine with Oscillating Bucky is a superior technology and Catapult Bucky is now obsolete, Mr. Mahanti, learned Advocate General submitted that experts competent to prescribe technical requirements of the X-Ray machines to be purchased for the concerned Project, taking into consideration all aspects of the Project in question fixed the requirements that the X-Ray machines to be purchased should have 'Catapult Bucky' instead of 'Oscillating Bucky' and that question should not be gone into by this Court for holding that the machines proposed to be supplied by the petitioner were technically superior to those intended to be purchased by the State.
13. The Supreme Court in the case of Asia Foundation, : (1997)1SCC738 (supra) while considering the award of contract and acceptance of the tender in a project financed by Asian Development Bank at Malina (Manila) to the Paradeep Port Trust has held as follows :
'Though the principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose. It is not within the permissible limits of interference for a Court of law, particularly when there has been no allegation malice or ulterior motive and particularly when the Court has not found any mala fides or favouritism in the grant of contract in favour of the successful bidder (in this the appellant).'
In the case of Fertilizer Corporation Kamgar Union (Regd.), Sindri v. Union of India, AIR 1981 SC 344, the Supreme Court held as follows :
'A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the Court until other ombudsman arrangement.... Emerges.... The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government Company has acted fairly, even if it has faltered in its wisdom, the Court cannot, as a super auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with norms of procedure set for it by rules of public administration.'
14. It has been repeatedly laid down by the Supreme Court that by way of judicial review, the Court is not expected at act as a Court of Appeal while examining an administrative decision and should not interfere with the said decision on the ground that such decision could have been taken otherwise in the facts and circumstances of the case. In the case of Asia Foundation, : (1997)1SCC738 (supra), the Supreme Court further held that it is difficult for the country to go ahead with such high cost project unless the financial institution like World Bank or Asian Development Bank grants loan or subsidy and when such financial institutions grant such huge loans, they always insist that any project for which the loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and the procedure for granting the contract must be duly adhered to.
15. Applying the principles of judicial review as laid down in the above decision of the Supreme Court, we find that in the facts and circumstances of the present case accepting the tender of opposite party No. 4 has been fair and free from unreasonableness and in compliance with the requirements of the tender documents. We possibly cannot enter into the process of adjudicating the question as to whether the X-Ray machines proposed to be supplied by the petitioner are superior than to those offered by the opp.party No. 4. But we have no hesitation in coming to the finding that the technical specification as mentioned in the tender document was fulfilled by opp. party No. 4 and the petitioner did not fulfil the same as it proposed to supply the X-Ray machines with a different technical specification with regard to the Buckies than that was required in the tender paper.
16. Further, we are satisfied that there is no illegality, unfairness or arbitrariness in the process of selection of tender of opp. party No. 4 for supply of X-Ray machines in question and we also find force in the contention of the learned Advocate General that the delay in execution of the project which has been financed by the World Bank would cause huge loss to the State and the project, as a whole, will be frustrated.
In the result, we find no merit in the writ application and dismiss the same.
The interim order passed earlier stands vacated.
Parties to bear their respective costs.
S.B. Roy, C.J.
17. I agree.