Subramonium Prasad JUDGMENT
1. Aggrieved by the rejection of its bid for e-tender No. RC 22-23/159 (hereinafter referred to as the 'said Tender') issued by Respondent No. 2 through Respondent No. 3 for supply of PVMS No. 020181, Injection Varicella Vaccine, live attenuated, monovalent, containing at least 1000 PFU per 0.5 ml; as being unlawful, illegal, arbitrary, unreasonable, unconstitutional and malafide, the Petitioner has filed the instant writ petition.
2. It is stated that Respondent No. 2 through Respondent No. 3 floated the said Tender on 02.09.2022 for supply of injections of Varicella Vaccine, live attenuated, monovalent, containing at least 1000 PFU per 0.5 ml.
3. It is stated that the Petitioner participated in the said Tender and submitted its online bid on 28.11.2022. On 15.02.2023, the technical evaluation of all the bidders was conducted and the status of the Petitioner's bid was displayed as rejected on the Defence Public Procurement Portal.
4. It is stated that the evaluation of the technical bid of the Petitioner was not published on the Defence Public Procurement Portal, nor any reason for rejection of the Petitioner's bid was given. The instant writ petition has been filed stating that the Petitioner was not informed as to why its bid was rejected.
5. Learned Counsel for the Petitioner contends that there were only two bidders, i.e., M/s MSD Pharmaceutical Private Limited and the Petitioner herein, who participated in the said Tender. He submits that there was no reason given by the Respondents as to why the Petitioner's bid has been rejected.
6. Learned Counsel for the Respondent, submits that the Petitioner's bid was rejected because the Petitioner did not submit DPIIT registration certificate which was essential to complete technical criteria.
7. A perusal of the material on record shows that Clause 10 of Part II of the Tender document provides that as per Notification dated 23.07.2020 of the Ministry of Finance, Department of Expenditure, any bidder from a country which shares a land border with India will only be eligible for the bid if it is registered with the competent authority constituted under the DPIIT and an affidavit is required to be submitted by the participant firm, which has admittedly not been submitted by the Petitioner herein. The Petitioner, imports the vaccine from China, which is a country sharing a land border with India and therefore the Petitioner was required to comply with the requirements of Clause 10 in Part II of the Tender Document.
8. The material on record shows that Petitioner, anticipating that the reasons for rejection of its bid would be for want of DPIIT registration certificate, sent letter dated 03.02.2023 to the Respondent, which read as under:-
"SUBJECT: CALL FOR OBJECTION against tender reference-RC/22-23/159Other references:-
1. 50139/DGAFMS/DG-2/RC-Inj. Varicella/18-19/225
2. 49274/DGAFMS/DG-2/RC-/nj Varicella/16-17/455
Respected Sir,
This pertains to file no.-RC/22-23/159 wherein we had participated along with MSD Pharmaceuticals Pvt. Ltd.
As per our understanding, we are required to submit DPIIT registration certificate to complete technical criteria. We would humbly like to inform you that our DPIIT registration is under consideration under the application (Enclosed) as provided in the technical bid of the tender.
We have confirmation that the same is under process and we shall receive the document very soon.
Moreover, we have been awarded the Rate Contract of this product twice (As mentioned under other references) and were proficient with supplies throughout the tenure of both rate contracts and received no complaints regarding product quality or supplies.
Novo Medi Sciences........