IN THE HIGH COURT OF KARNATAKA AT BANGALQRE
DATED THIS THE 3"" DAY or-" SEPTEMBER
BEFORE :
THE HON'BLE MRJUSTICE MoHx.N"SHAMoTAr.i@e:ouo«AI§neo A
wan PETITION No.135e1z"2ooes (eIv\eTEN)t A
Between :
M/s. Sangrose Laboratories" _
Pvt., Ltd., Industrial Estate ._ A V
Kollakadavu, Kallirnel P.O,.,.-- _ '
Mavelikara, Kera1a--..-u6905"i[0 , V'
By its Sales Offiéjer §1>{a.1*i3.Vata1ia}V
S. Vasanth b ..Petitioner
(By Sri Reuben 2 _ '
AND :
1. Kaxjuataka f)1*a1gS'& Logietics
And'.;Warehousir1g Society (Regd.},
. " {Gosrerfiinent of Karnataka
' VE'I'1tCI'pv1'1'VS. sJ_,'"PEO.1
D11 Siddaiahpufanik Road
W/Iagadi'
Bangal_o1'e_--ii*6O 079
Rep 1*;y"'Additiona1 Director
V' A'i'I1e_.«Ap£)e11ate Authority and
' Secretary to the Government
Department of Health and
Family Welfare, Anand Rao
V' Cricle. Bangalore--O9.
3. M/s. Softsules Pvt. Ltd.,
Plot No.86/A, L.B. Shastry
Marg. Mulunda [W]
Mumbai--4OO 080
Rep by its }Director.
4. The Drugs Control
Administration
State of Keraia
'I'hiruvananthapuram--35 y -.
By its Drugs Controller. ¢_ ..«.Re's3:;ond~entS.
(By Sri K. Sachindra Karanth, Aclv., for it _s . 2
Sri J. Chandrashekariaha <3: Raj eswari l3.ev1 C for
Sri NB. Viswanath, AGA., for V
This Writ Petition is" filed Ciaifticles 226 & 227 of
the Constittitiovnofl3ndia,j;prayii1g"t0quash the order dated
4-10-2008 passed: in .App'ea1. N'o.H§*?W.99.HPC.2008 by the
respondent 'Noi;'2 vifde Ann-eXure':A' and consequently allow
the said' appeal'--'i3y»._Vqi1ashii<ig the proceedings of the tender
accepting aiithorityfof't1§ie._fi.:st respondent dated 14-8-O8
(Vide AnneXure--B}. C
, Writ"Petiti0n coming on for hearing this day, the
V' "('...ou'1*t"n1.ade"i--the following :
ORDER
C’ .respondent No.1 –~ Karnataka Drugs & Logistics
Wa;re3i1ousing Society issued a tender notification on
calling for bids in respect of five medical items,
.in_cluding the item called Vitamin–A–2 lakhs l.U. Soft
I
\”””‘
_ 3 _
Geiatin Capsules. In pursuance to the said notification,
petitioner submitted its bid in respect of the said item in
two covers, one being technical bid and anothjertfbeing
commercial bid. The Tender
constituted for the purpose of sc1°utinisi’n5g’0Vithe” tendefsrdd
gave the report to the effect tthatrdthe
petitioner is non–responsive, because at the fi_rst,inst’ance,'”
the tenderer has not pi’Qduced”i5ei’foi’rnance “Certificate in
the portal. It is also ‘Cerfificate sent
through E–I\/East} byptfhe per annexure-HI
of the Tthetvrecommendation of the
Tender is accepted by the Tender
Accepting of respondent No.1 and
0Aconseduent1y,’_treated’ the bid of the petitioner as non»
xf.B:eing aggrieved by the said order, the
_ petit”1’€)ne.:’ an appeal before the 2nd respondent under
Section 310(1) of the Karnataka Transparencyyin Public
4’_’_AnA~__iE’i<ocu1*:erI1ent Act, 1999 and Rules 2000. The said appeal
0 came to be dismissed by the order dated 4.10.2008 as per
we
; is asundiier
Annexure~'A' to the writ petition. Questioning the "sarrie,
this writ petition is filed.
2.Having regard to the facts stated above,
that the tender of the petitioner is”rej-ectecl the it
ground that the petitioner has
Performance Certificate as”‘–«,p’er profoiméi V”fou”nd in
Annexure-III of the «’HOWieVer, the
petitioners have furrlishe-d_ tIi1e1’VPerfotjrri_a.nce Certificate
issued by the” wifieraia State as per
Annexuvréffj’ it is relevant to note the
contentsiof the Perior3:i1aiicei~’Certificate issued in favour of
the peti.tioI1er Controiler, Kerala State, which
‘V dV.i’.i’-EERFORMANCE CERTIFICATE
Du/i/s.Sangrose Laboratories Pvt. Ltd.,
ii”.-u.__”i.ndustriai__AEstate, Kallimel P.O. Maveiikkara, Kera1a–69O
holds Drugs Manufacturing Licence in Form No.25
_ _;_&.28 ‘Licence No. 15 25 88 did. 27.05.88 and 11 28 95
11.06.95 to manufacture drugs iisted therein.
\~/>
_5_
This is to certify that the firm has 20 years
performance in the manufacture of drugs licensed
therein.
This Certificate is issued to be produced
Karnataka State Drugs Logistics & ‘V’
Society.
M.P.G3§iORG”n3._ _ ._
DRUGS coNTi§oLLER.. _ “V _ ~
It is also relevant at thisdstage todnotei ‘the’:’profonna
of Perfonnance Certificatfe .._u.nder Anrieicure-III to
the Tender Document. produced at
Annex’dre–*§” :
” . III
‘ ‘V in H V _____ H y:Ref. Section II — Clause No.2.A-12
CERTIFICATE
._ ._ to certify that
WI / i …………………….. .. situ ated at
……… .. Are holding licence/s in form/s.
V. provisions of Drugs and Cosmetic Act 1940
and Rules there under and that their
performance for the preceding three financial
P’
years 2005-06, 2006307, 2007-08 i.e..
31.03.2006.
O\fi60\fi
for
31.03.2007 8: 3l~03–2008 is
satisfactory and that :-
i.
iii.
the Drugs in respect of which..~«~~t.hi.s__’
certificate is issued stated at P’ar’a,{?.:)”‘
below is / are manufactured on”et,hei’1*._’_:VpV
own license and not ()I’:§C1’l0E?%-Iwi .1-icensef ‘
The manufactureriias his down’ v.Qu._aiity
Control section.
During the ‘proceediéifig 0thifee’lyears there
is no instance of ‘lltsuvsperision or
a fwhole of a license
0’ issu.eci~:’to.0themanufacturer in respect of
is / are offered by the
ma’nufactui’er in the tender mentioned
in Paralwét below on account of Drugs
“Not of Standard Quality”.
1′ is
‘ fiuring the preceding three years, there
of
cancellation of license/s or a part
no instance suspension or
thereof stated in Para 1 for violation of
conditions of the license / s granted.
Y”
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V. There is no instance wherein any of the
Drugs manufactured by the
manufacturer is reported to be spurious?”-,p
or adulterated.
Vi. No administrative action or prosec_utionVi’ %
is contemplated or launched the
manufacturer under ‘—,thg’=_’= ..Dr11gs”~
Cosmetics Act, .1940 am-y1″‘Ruies’ii it; it
under in respect of offered fay zhirri
in the tender..V_mentior;neti VVii3.._Para’graph 2
below.
This certifiagate iseiied«. purpose of
tencier for Rate Contract
for*_ i’suppiyjf2.hVof_:V’-Iifiyruhgs, Chemicals 8:
Misceflaneous’4Vi’i”‘eiris.*to be Additional Director,
V’ 0 Karnataka. Vistate Drugs Logistics 8:
in Warehhousing iiii H Society, Government of
A * T_ “for the year 2008-10.
0 S1 No.-if -j Name of the drug / preparation
» At ‘T «Place:
” — _ Bate: Signature of the Certifying Authority <31 Seal
Use photocopy if the space is not sufficient"
F/S
_ 3 _
The Performance Certificate to be furnished by the
intending tenderers and Annexure»~IIl requires Various
factors to be stated in the said certificate. It
specifically mentioned in the Performance _
the performance of the tenderer for the three "
financial years 2005«~06,
satisfactory; that the drug inilcfu-estionv~ in
its own license: that the 1nanfufacturer"«has own
Quality Control sectionj"'thatl-dti–riiné"theV:proceeding three
years. there is instance' suspension or cancellation
of a part' license to the manufacturer
in respectpl V thVe".l'»«w'hich is/ are offered by the
manufacturer the tender; that during the preceding
'three ye'arsV;r.optherelllllis no instance of suspension or
of-license/s or a part thereof; that there is
_ no insta;r_icevi':Wfherein any of the Drugs manufactured by
,_manufacturer is reported to be spurious or
l_l_pr~__ad_u1terated; and that no administrative action or
T prosecution is contemplated or launched against the
N"
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manufacturer under the Drugs and Cosmetics Act, 1940
and Rules there under in respect of Drugs offered by him
in the tender.
From the above, it is amply clear that
should be above board and he AVt11e””
conditions mentioned in the P’e1’fc=_r:r3.’ance’~Certificate_,:
apart from satisfying otherdyfioilditioils as i’f0ui1’ki-…ini thefl’
Tender Notification. The req1i’irein_ents “stated in the
Performance Certificate ‘ ;~ar_ef’;=V substantive in nature.
Therefore, Terideir in bits wisdom has
directeti the “furnish the Performance
Certificatexdtiiyv the authorised agency of the
‘_Dru_g-:.:CVor1trV01 nbepartrnent certifying the aforementioned
” it
in the case on hand, the petitioner has
A “:iprodi1«ced the Performance Certificate by Drugs Controller
oi’§Kera1a State, which does not specify any material fact
I/wt
_ 19 _
as is required in the proforma Performance Certificate.
The Performance Certificate submitted by the petitioner
merely reveals that petitioner is having”~._Tdrugs
manufacturing iicense to manufacture the
thereunder and that it has 20, years of if
manufacture drugs listed thereuniderl.’_’f
factors, no other factors arestated .”in__ the “Pe’rfor1’11’ance”‘C
Certificate. Therefore,» the ATend_erV”‘Accepti11gAuthority
has rightly rejected the tender-
Mae couriiself thepetitioner submits that
the petitioi’1er,VVhas.,:’fi1>rriisi1ed “C relevant particulars along
With the Tender and therefore, nommentioning
of particu’lars____in. the Performance Certificate by the
C_ontr.olier, Keraia State, may not be fatal to the
caseof the’.Vpet’i’tioner. The said submission also cannot be
jvacceputedlgp The materials furnished by the petitioner along
A »”t~he Tender Documents do not satisfy the requirement
of the contents of the Performance Certificate contained in
V’
_ 11 _
Annexure–III to the Tender Notification. The petitioner has
not furnished any document to show that during the
preceding three years, there is no suspensi:on’~..Vyor
cancellation of part or whole of the license
manufacturer in respect of the drugson account ofdrusgs
being not of standard quality. Soxals_o,”‘no”inforInatio.n”is
furnished by the petitioner show that the ‘V
preceding three years, there,is”no’-instance “of suspension
or cancellation of license or part’ t’hereOAfrfor__vio1ation of the
conditions of *t_h_’e license. “‘7f~’-i’he other necessary
require;nent’ no instance wherein any of the
drugs petitioner is reported to be
spurious or ‘ad_ulterate-d and that no administrative action
.”oryVp’rosecnt’ion islcontemplated or launched against the
Drugs and Cosmetics Act, 1940 and
_ Rules theretrnder in respect of the drugs offered by him.
” ” * s, itis amply clear that the petitioner has not satisfied
th:e”‘tender conditions. It is by now well settled that the
T ‘terms of the invitation to tender are not open to judicial
W5
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scrutiny as the same being in the realm of contract. That
the Government must have a free hand in setting the
terms of the tender. In other words, a fair
joints is a necessary concomitant for an a_.dminis’trat}I.(e~–.p
body functioning in an administrative spherefor’ qua’s_i~
administrative sphere. The courts”‘woi_i1d: interfere
administrative poiicy decisio__n”~~._pon1y if’ “a’rbitrary}”
discriminatory, malafkie or ‘st:-;l’Ct.’!.’,-1.’V_.a:’.te’VVC’l’ by bias~. The tender
inviting authority is adjustments
which may be. sailed for by,9th.eA”‘p’articiiiar circumstances.
The dovvndythe terms of the tender
prescribed by the’Cfove~rri1nent because it feels that some
other –i:errns'”iny the tender would have been fair, wiser or
dfiiogiycald. :,.f1~§orr:ial1y«vs’peaking, the decision to accept the
terider ~er–._aw?ard the contract is reached by process of
negotiaitioris’through several tiers. More often than not,
W H ” decisions are made qualitatively by experts.
V
R131
The mandatory preconditions imposed by the “State
authority on the intending tenderers should be
strictly. Apart from possessing, the minimuni— *
requirements, the documents which’ ate drgnaterialgfor V
assessing the fact that the petitionenhasiddfiiifiiled
necessary requirements mus*t.._b-eg fur”nishe.d.’*_: V’Qvtheriwise,”‘
the intending tenderer :4 tube exc1’uded from
consideration. The and
the documents”toL_’be of the same
should be instrurnentality of the
State. dddd Winformation/documents
suppliedihiasto’ by the instrumentality of
the State. the same would result in
.fl’s11b”stant’ia1 “t’prejudiVceddor injustice and consequently. the
suffer. Where the Tender Inviting
_ AuthorityFwinstrurnentality of State has constituted and
linterpretedd the standards prescribed in a particular
manna and has acted accordingly, the Court would not
~ ‘interfere in substantive interpretation which it considers
‘/73
e 14 _
to be correct. The Court will not act as an Appellate
Authority in such matters to substitute its own
conclusion to that of the Tender Inviting Authority:
In View of the above, this Court does»;I”1’oft fii’1c4_igar:y 2
ground to grant relief to the pet:i’t.iVo:nAer
writ petition. Accordingly, therpetitior1.fai1s;TV the V
is dismissed.