SHIVON INDIA REPRESENTED BY ITS CHIEF MANAGER, MR. SANJEEV MISRA Vs. PURCHASE COMMITTEE OF BMCRI/PMSSY SUPER SPECIALTY HOSPITAL REPRESENTED BY ITS CHAIRMAN, BANGALORE MEDICAL COLLEGE AND RESEARCH INSTITUTE, REPRESENTED BY ITS DIRECTOR AND M/S. R

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 28.05.2013 issued by the Director, BMCPJ, K.R. Road, Bangalore. By the said order, the tender submitted by the Respondent. No. 3 has been accepted. The brief facts are that the first respondent issued a Notification dated 10.12.2012 calling for tenders for installation of medical equipments, storage racks and other electronic items. The present petition relates to the tender submitted in respect of Storage racks. The tender documents were to be uploaded by the tenderers/suppliers on or before 17.12.2012. The tenders were open on 20.12.2012. Since according to the Respondent Nos. 1 and 2, the Respondent No. 3 has quoted lesser than the petitioner, he was classified as L1 and the order for supply of the Storage Racks was issued to the Respondent No. 3. The petitioner claiming to be aggrieved by the same is before this Court.

(2.) THE Respondent Nos. 1 and 2 as also the Respondent No. 3 have filed their respective objection statement seeking to justify the action of the respondent. The manner in which the tender documents were scrutinized and ultimately, the decision taken by the Tender Accepting Authority is sought to be justified. It is their case that the tender submitted by the petitioner was not responsive for non -compliance of the tender conditions relating to the indication of the tax component and also with regard to the concession sought by the petitioner claiming to be an SSI Unit. In that view, it is contended that the respondents were justified in accepting the Respondent No. 3 as L1 and it is also pointed out that before this Court had granted the interim order, certain supplies had already been made by the respondent. It is in that context contended that the instant petition is not maintainable and an appeal as contemplated under Section 16 of the KTPP Act ought to have been filed.

(3.) THE contention put forth on behalf of the petitioner primarily is that though the tax payable in respect of the items which were sought to be supplied was fixed at 14.5% and even though the petitioner had indicated the tax component at 6%, the difference of the tax amount payable to the concerned Department, in any event, would have been borne by the petitioner and therefore, if this aspect was also kept in view, the petitioner should have been considered as L1. It is also contended that since the petitioner is a Small Scale Industry, the benefit of reduction would have been admissible to them and therefore, the said benefit if had taken into consideration in an appropriate manner, the quotation submitted by the petitioner will have to be considered as responsive and also lesser than that of the Respondent No. 3. It is the further contention that when the tender process was in progress as admitted by the respondents in their objection statement, the Respondent No. 3 had corresponded with the Tender Accepting Authority and therefore, the Respondent No. 3 should have been disqualified and the petitioner's bid should have been considered. The learned counsel for the respondent with reference to the objection statement and also the documents annexed along with the petition would refer to the specific provisions contained in the tender documents relating to the manner in which the quotations were to be submitted by including the tax payable so as to enable the Tender Scrutiny Committee as well as the Tender Accepting Authority to evaluate the tender to arrive at a conclusion as to which of the tenderers were L1. Since in the instant case, the entire tax liability had not been quoted, certainly the case of the petitioner cannot be considered is the submission of the learned counsel for the respondents. With regard to the claim of the status as SSI and consideration thereof, it is contended that the necessary document in that regard had not been uploaded before the last date for uploading the tender documents and any document produced subsequently is of no consequence whatsoever. Further, with regard to the contention that the Respondent No. 3 had corresponded with the Tender Accepting Authority, reference is also made to the tender document to contend that the conflict in that regard could only be against influencing the tender process but it does not prevent the objections being raised with regard to improper evaluation made. In that context, it is contended that the Tender Accepting Authority has properly considered this aspect of the matter and arrived at a conclusion, which does not call for interference.