1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JULY 2013
BEFORE
THE HON’BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION No.23762 OF 2013 (GM-TEN)
C/W
WRIT PETITION No.14573 OF 2013 (GM-TEN)
IN W.P No.23762/2013
BETWEEN:
Wipro GE Healthcare Private Limited
A Company incorporated under the
Companies Act, 1956
Having its registered office at
No.4, Kadugodi Industrial Area
Bangalore-560 067
Rep by its Authorised Signatory &
Government Sales Manager
(Karnataka & Andhra Pradesh)
Mr. P. Sandeep. ..Petitioner
(By Sri Naganand, Sr. Counsel for
Sri Hegde Ganapathi Narayan, DUA Associates, Advs.,)
AND :
1. National Institute of Mental Health and Neurosciences
(Deemed University)
P.B.No.2900, Hosur Road
R
2
Bangalore-560 029
Rep by its Director/Vice Chancellor
Presently Dr. P. Satishchandra.
2. Siemens Limited
A Company incorporated under
the Companies Act, 1956
Having its registered office at
130, Pandurang Budhkar Marg
Worli, Mumbai-400 013.
Having its branch office at
No.49, Jyotimahal Building
3rd Floor, St. Marks Road
Bangalore-560 001
Rep by its Director/Authorised Signatory.
3. Philips Electronics India Limited
A company incorporated under
the Companies Act, 1956
Having its registered office at
7, Justice Chandra Madhab Road
Kolkata-700020
Having its Branch Office at
Philips Innovation Campus
Manyata Tech Park
Nagawara, Bangalore-560 045
Rep by its Director/
Authorised Signatory. ..Respondents
(By Sri K.G. Ragavan, Sr. Counsel for
Sri T.S. Amarkumar, Adv., for C/R2 for M/s. Lawyers Inc.;
Sri A. Madhusudana Rao, Adv., for C/R1 and
Sri Udaya Holla, Senior Counsel for Smt. Nalina Mayegowda
for M/s. Poovayya & Co., Adv., for R3)
3
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to declare the process of
selection of the lowest bidder by the first respondent is
arbitrary and illegal and consequently quash the decision
made by the first respondent pertaining to accepting the
technical bid of the second respondent and opening of the
financial bid of the second respondent etc.,
IN W.P No.14573/2013
BETWEEN:
Philips Electronics India Limited
A company incorporated under
the provisions of the
Companies Act, 1956
Having its registered office at
7, Justice Chandra Madhab Road
Kolkata-700020
Having its Branch Office at
Philips Innovation Campus
Manyata Tech Park
Nagawara, Bangalore-560 045
Rep by Mr. V.P. Thirumalai
Regional Sales Manager. ..Petitioner
(By Sri Udaya Holla, Sr. Counsel for
Smt. Nalina Mayegowda for Poovayya & Co., Advs.,)
AND :
1. National Institute of Mental
Health and Neurosciences
(Deemed University)
P.B.No.2900, Hosur Road
4
Bangalore-560 029
Rep by its Director/Vice Chancellor
Presently Dr. P. Satishchandra.
2. Siemens Limited
Having its registered office at
130, Pandurang Budhkar Marg
Worli, Mumbai-400 013.
Having its branch office at
No.49, Jyotimahal Building
3rd Floor, St. Marks Road
Bangalore-560 001
Rep by its Authorised
Signatory/Director.
3. Wipro GE Healthcare Private Limited
Having its office at Unit No.1
4th Floor, Inventor Building
ITPL, Whitefield
Bangalore-560 066
Rep by its Authorised
Signatory/Director. ..Respondents
(By Sri K.G. Ragavan, Sr. Counsel for
Sri T.S. Amarkumar, Adv., for C/R2 for M/s. Lawyers Inc.,;
Sri A. Madhusudana Rao, Adv., for C/R1 and
Sri Naganand, Senior counsel for Sri Hegde Ganapathi
Narayan for Dua Associates, Adv., for R3)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to direct the R1 to
consider and approve the technical bid of the petitioner
dated 22.3.2013 vide Annexure-G.
5
These Writ Petitions having been heard and reserved
for Orders, coming on for pronouncement of order this day,
the Court made the following :
O R D E R
These writ petitions are filed praying for approval of
the petitioners’ technical bids in respect of the notification
issued by the National Institute of Mental Health and
Neurosciences (‘NIMHANS’ for short) for purchase of
Integrated Simultaneous/Sequential 3T MR PET Scanner
System. Consequently, the petitioners have prayed for
direction to NIMHANS to open and consider the financial
bids of the petitioners. Certain consequential reliefs are
also prayed.
2. NIMHANS is one of the premier health and research
institutes in India and is a deemed University under the
provisions of the University Grants Commission Act. The
NIMHANS invited Expression of Interest from prospective
bidders by letter dated 23.8.2012 for supply, installation,
6
commissioning etc., of “A New State of Art, Top of the Line
3T MR PET MRS Scanner System with Latest Generation
Gradient System”. Petitioners as well as Respondent -
Siemens Limited (‘SIEMENS’ for short) submitted their
responses. It is relevant to note that the petitioners and
the respondent – SIEMENS are the only companies in the
world who are said to be manufacturing and supplying the
integrated simultaneous/sequential 3T MR PET Scanner
System. The Expressions of Interest received from the
bidders were opened on 14.9.2012. Thereafter pre-bid
meeting was held on 21st October 2012 in which the
petitioners and SIEMENS were participated. The
aforementioned three bidders and NIMHANS agreed on a
common list of specifications.
The Tender Notification dated 16.1.2013 was issued
by NIMHANS for Integrated Simultaneous 3T MR PET
Scanner System. In response thereto, petitioner in Writ
Petition No.14573/2013 viz., Philips Electronics India
7
Limited (‘PHILIPS’ for short) issued letter dated 21.1.2013
to NIMHANS requesting for certain amendment to the
tender document including deletion of “The PET detectors
should be housed within the MR magnet”. Essentially, the
PHILIPS requested that while simultaneous 3T MR PET were
invited, sequential 3T MR PET be included in the scope of
the tender. Thereafter the Corrigendum was issued on
8.2.2013 (vide Annexure-C in Writ Petition No.14573/2013)
to the Tender Notification.
Pursuant to the notification dated 16.1.2013,
NIMHANS received only a single bid from SIEMENS. Since
there was a single bid, NIMHANS decided to re-notify the
tender item and as such second global tender notification
dated 19.2.2013 was published by NIMHANS inviting bids.
Technical Committee recommended certain modifications to
the specifications. Pursuant to the second notification,
only two bidders viz., WIPRO and SIEMENS participated.
Both did not qualify the technical requirements.
8
Thereafter NIMHANS issued another Tender
Notification (third Call) dated 16.3.2013 inviting bids once
again for simultaneous 3T MR PET. PHILIPS issued another
letter dated 8.3.2013 (signed on 18.3.2013) vide Annexure-
E in Writ Petition No.14573/2013, requesting NIMHANS to
include sequential 3T MR PET also. In the meanwhile,
petitioner in W.P. No.23762/2013 viz., Wipro GE Healthcare
Private Limited (‘WIPRO’ for short) also wrote letter to the
Joint Secretary to the Government of India requesting
certain changes in the tender conditions. Thereafter a
Corrigendum was issued by NIMHANS on 21.3.2013 (vide
Annexure-F in Writ Petition No.14573/2013) modifying the
tender condition viz., “Supply, Installation, Commissioning,
Demonstration of Performance, Training of Personal and
Provisions of Guarantee of Performance State of Art, Top of
the Line, Integrated Simultaneous/Sequential 3T MR PET
Scanner System”, meaning thereby NIMHANS accepted the
9
contentions of the petitioners that bidders offering
sequential technology should also be allowed to participate
in the tender.
The technical bids were opened on 23rd March 2013 in
presence of representatives of all the bidders. NIMHANS
called on the bidders by sending e-mail dated 23.3.2013 to
depute their representatives to attend the purchase
committee meeting scheduled to be held on 24th and 25th
March 2013 onwards. On 24.3.2013, representatives of all
the three bidders made detailed presentations to the
purchase committee of NIMHANS. In the evening of
24.3.2013, according to the petitioners they were informed
orally that the technical bid of SIEMENS was accepted.
They were further informed orally that the financial bid of
SIEMENS would be opened as per law.
10
3. According to the petitioners, though their bids
were technically compliant, no reasons were provided for
considering the financial bid of the SIEMENS only. In
other words, the petitioners contend that their technical
bids are rejected without assigning any reason.
Sri Naganand, learned senior advocate appearing on
behalf of WIPRO (Petitioner in W.P. No.23762/2013)
submits that NIMHANS being the instrumentality of the
State is required to act in accordance with law and provide
a level playing field so as to enable persons such as the
WIPRO to provide the best possible technologically
advanced Scanner System to a medical institute of
international repute such as the NIMHANS; the modification
of the technical requirements made by NIMHANS from
stage to stage was only to favour SIEMENS which is being
declared successful in the technical bid; The NIMHANS has
conveniently made modifications to the technical bid
requirements such that they are either diluted,
11
specifications lowered or mandatory requirements have
been made optional so as to solely benefit SIEMENS; The
NIMHANS has introduced very major change in the machine
required and has proceeded in fast track in order to award
tender in favour of SIEMENS; rejection of the bid of the
WIPRO without assigning reasons is bad in the eyes of law;
the Scanner System of the SIEMENS is not a 3 Tesla
Machine and its rating is 2.89 Tesla with an operational
frequency of 123.2 MHz; whereas Scanner System of the
WIPRO is a 3 Tesla machine with an operational frequency
of 127.72 MHz; on this very ground, the Kerala High Court
was pleased to dismiss the writ petition filed by SIEMENS
challenging the tender being awarded to WIPRO; Repeated
revisions to the tender is unfair and biased towards
SIEMENS; NIMHANS has acted unreasonably in rejecting
the technical bid of the WIPRO and it has acted in
discriminative manner; by issuing Corrigendum dated
21.3.2013 to the 3rd call for tender allowed the
12
manufacturers of simultaneous as well as sequential 3T MR
PET Scanner System to participate in the tender; Insofar
as sequential 3T MR PET Scanner System is concerned, all
the three bidders have bid for the same; however insofar as
integrated simultaneous 3T MR PET Scanner System is
concerned, only the SIEMENS has submitted the bid; this
has lead to a situation where there is competition in
sequential 3T MR PET Scanner System is concerned while at
the same time they removed competition insofar as
Integrated Simultaneous 3T MR PET Scanner System is
concerned; the NIMHANS would have considered only
Sequential Scanner System and evaluated only the
technical bids of all the three bidders with respect to
Sequential Scanner Systems; NIMHANS being the
instrumentality of the State has a duty to ensure
transparency in the public procurement so as to ensure that
the institution benefits by being able to procure the
intended equipment at the best possible price.
13
Sri Udaya Holla, learned senior advocate appearing on
behalf of the petitioner – PHILIPS in Writ Petition
No.14573/2010 reiterated almost the very grounds as were
argued by Sri Naganand mentioned supra. He submits
that the entire tender process carried out by NIMHANS is
arbitrary, unfair and unreasonable with a view to favour
SIEMENS over the petitioner; NIMHANS has been biased
against PHILIPS and has therefore rejected the petitioner’s
technical bid; despite calling for sequential 3T MR PET
Scanner System, the petitioner’s bid was rejected for the
reason that it had submitted its bid for a sequential 3T MR
PET; that despite non-compliance on the part of SIEMENS,
the technical bid of the SIEMENS has been accepted without
assigning any reason therefor; the action of NIMHANS is
against public and national interest; the arbitrariness on the
part of NIMHANS is depicted by the fact that NIMHANS has
hurried to complete the entire process within a day; the
terms of the tender are tailor-made in favour of SIEMENS;
14
he further draws the attention of the Court to the
allegations made by the PHILIPS in its rejoinder to the writ
petition.
4. Per contra, Sri K.G. Raghavan, learned senior
advocate appearing on behalf of the successful bidder,
opposing the writ petitions has contended that only
SIEMENS had submitted the bid pursuant to the Global
Tender Notification dated 16.1.2013 issued by NIMHANS
(first call); since the only bid of SIEMENS was received by
NIMHANS pursuant to the Tender Notification dated
16.1.2013, NIMHANS invited the bids once again by issuing
second Tender Notification dated 19.2.2013; in response to
the second call, SIEMENS and WIPRO participated in the
tender and submitted their bids; PHILIPS (petitioner in Writ
Petition No.14573/2013) did not participate pursuant to
the first and second tender notifications and consequently
has no locus standi to make allegation against NIMHANS as
well as SIEMENS; NIMHANS having felt that still wider
15
participation is needed for getting appropriate Scanner
System, invited bids (third call) vide Tender Notification
dated 16.3.2013 fixing the due date for submission of the
bid on 23.3.2013; in order to have a competitive bid,
Corrigendum dated 21.3.2013 was issued by NIMHANS
under which NIMHANS amended the description of
equipment viz., Integrated Simultaneous/Sequential 3T MR
PET Scanner System and in response to the same, all the
three bidders submitted their bids; the technical bids were
opened on 23.3.2013 in the presence of representatives of
all the bidders; thereafter a meeting was held on 24.3.2013
and in the said meeting, after evaluation and negotiations
on technical bids of all the parties, NIMHANS informed the
bidders that the technical bid of SIEMENS has met the
criteria and the same was accepted and consequently
NIMHANS informed both the petitioners that their technical
bids have been rejected; NIMHANS has constituted a broad
based committee of Technical Experts from within the
16
institute and from other leading institutions in the country;
the purpose of such a broad based committee was to
ensure that the Government funds are utilized to procure
the best technology to meet the clinical requirements of the
institute and to conduct whole process of procurement in a
fair and transparent manner. The committee after
analyzing the technical specification of the equipments of
the three bidders and after discussions and negotiations
with them, has found that the bid of SIEMENS meets the
criteria and accepted the same; the bids of the petitioners
have not complied with the technical requirements of the
tender document; the system proposed to be procured is a
very “Advanced Diagnostic Equipment” for diagnosis of
various types of neurological diseases and to meet the
clinical requirement, it is absolutely essential to meet with
the tender specifications under the head “PET
Specification”; He draws the attention of the Court to
various deviations in the specification found in the technical
17
bids of the petitioners in response to the third and final
tender call; He further submits that the experts in the
field have chosen the Scanner System manufactured by
SIEMENS by concluding that the Scanner System of
SIEMENS is best suited for the purpose.
The arguments advanced by Mr. Raghavan are almost
reiterated by Sri Madhusudan Rao, learned advocate
appearing on behalf of NIMHANS. Sri Madhusudan Rao
opposing the writ petitions contended that the petitioners
are not entitled to any of the reliefs in view of the fact that
the technical bids submitted by all the three bidders were
considered by the Technical Committee consisting of the
experts in the field from NIMHANS and from reputed
institutions of different parts of the country and the
recommendations of the Technical Committee revealed that
the technical bids submitted by the petitioners were not
responsive to the specifications mentioned in the tender
notification and that the technical bid submitted by
18
SIEMENS was in compliance with the specifications
mentioned in the tender notification. He further submits
that the petitioners are guilty of suppressing the material
facts and misrepresenting the facts. He has denied all the
allegations made against the NIMHANS by the petitioners.
Sri Madhusudana Rao further submits that the
common list of specifications was agreed upon in the
meeting held on 20th and 21st October 2012 in which the
Director of NIMHANS and Heads of various departments
and several experts in the field from different premier
institutions like All India Institute of Medical Sciences,
Department of Nuclear Medicine, Indian Institute of Science
etc., participated. After considering various proposals
given by the bidders, certain technical requirements were
also decided; in the pre-bid meeting, all the three bidders
were given the fullest opportunity to putforth their
presentation and the entire process was transparent and
19
consequently the specification that was drawn did not
favour any particular company; the Corrigendum dated
8.2.2013 was issued only to enable broad based
participation of any vendor who would be in a position to
obtain a certification of either of the two internationally
reputed regulatory agencies viz., FDA and CE; while the
original Tender Notification required certification from both
the authorities of the equipment to be supplied by the
vendors, the vendor who is in a position to produce the
certification by either of the two authorities also could
participate in the proceedings in view of the amendment to
the tender conditions; this was done only with a view to
enable the level playing field for all the vendors and also to
increase their participation in the bidding process; Pursuant
to the notification dated 16.1.2013, NIMHANS as such
received only single bid from SIEMENS; since there was
only a single bid, NIMHANS decided to re-notify the tender
item and as such second global tender notification dated
20
19.2.2013 was published by NIMHANS inviting bids;
Pursuant to said notification dated 19.2.2013, NIMHANS
has received only two bids from WIPRO and SIEMENS; after
receiving such bids, the purchase committee meeting
consisting of experts was convened on 15.3.2013 and in the
said meeting WIPRO and SIEMENS were invited to
participate and after their participation and detailed
discussion and scrutiny of specifications, the expert
committee concluded that neither WIPRO nor SIEMENS met
the required technical specifications as notified in the
tender; Thereafter the technical committee recommended
certain modifications to the specifications in order to
provide an opportunity for all the bidders in its meeting held
on 15th and 16th March-2013; thereafter one more tender
notification was issued (third call) on 16.3.2013; in the
meanwhile, PHILIPS addressed letter dated 8.3.2013
wherein it requested NIMHANS to include sequential 3T MR
PET Scanner System; since the Technical Committee has
21
earlier recommended for the purchase of only simultaneous
integrated 3T MR PET Scanner System with the accessories,
NIMHANS had to again consult the members of the
Technical Committee regarding the request made by
PHILIPS and also the feasibility of considering the bids in
respect of sequential 3T MR PET Scanner System; the
committee members suggested that even the sequential MR
PET Scanner also can be included for consideration; In that
regard, NIMHANS issued Corrigendum dated 21.3.2013
including even sequential 3T MR PET Scanner System also
in the tender document; It is further submitted that the
tender notification issued by NIMHANS makes it clear that
NIMHANS has a right to accept or reject the tender without
assigning any reason; the petitioners having responded to
the tender notification issued by NIMHANS containing the
aforesaid stipulation, cannot now question the decision of
NIMHANS in accepting the technical bid of the SIEMENS and
rejecting the bids of the petitioners; the bids submitted by
22
all the three bidders were considered by the Expert
Committee consisting of several experts from various
premier and eminent institutions all over the country; the
recommendation of the Technical Committee consisting of
experts have been accepted by NIMHANS and the decision
is taken to accept the technical bid of SIEMENS; the
decision of the NIMHANS based on the advice and opinion
of the technical committee referred to above cannot be
questioned by the petitioners in the Court of law inasmuch
as the expert’s opinion needs to be respected; the bids of
the petitioners were not complying the tender conditions;
the models offered by the petitioners do not satisfy the
requirements of the tender conditions. One of the
specification is that acquisition of the PET data and MR
sequences should be simultaneous/sequential and both the
modalities shall be integrated so as to achieve pixel to pixel
fusion; in the bid submitted by PHILIPS, it was only stated
that the equipment to be offered is integrated PET MR with
23
sequential imaging and the same does not refer to the
requirement of pixel to pixel fusion; as on the date of
submission of the tenders, the petitioners’ equipments were
not fully ready with the specification as asked for; He
further draws the attention of the Court to the counter filed
by NIMHANS and contends that the contentions raised by
the petitioners are incorrect. On these among other
grounds, he prayed for dismissal of the writ petitions.
5. Learned advocate appearing on behalf of the first
respondent – NIMHANS made available the original records
maintained by the Authority for the purpose of perusal of
the Court. The original records are perused.
6. Before proceeding further, it is relevant to note the
admitted facts, which are as under:
The NIMHANS invited Expression of Interest from
prospective bidders by letter dated 23.8.2012 for “a New
State of Art, Top of the line 3T MR PET MRS Scanner
24
System with latest generation gradient system”.
Petitioners as well as private respondents submitted their
responses. The Expressions of Interest received from
various bidders were opened on 14.9.2012. On 20th and
21st October 2012 pre-bid meetings were held in which all
the three bidders participated. Based on the Expressions
of Interest made by the bidders, common list of
specifications were agreed upon in the pre-bid meeting. It
is relevant to note that the meetings dated 20th and 21st
October 2012 were attended not only by the Director and
Registrar of the Respondent No.1 institution, but also by
other Heads of various departments of Respondent No.1
institution and several other experts from different premier
institutions like All India Institute of Medical Sciences, New
Delhi; Department of Nuclear Medicine, SGPGIMS,
Lucknow; Department of Physics, Indian Institute of
Science, Bangalore as also the Head of the Department of
Radiology, Manipal Hospital. All the three bidders made
25
their presentations. After considering various proposals
given by the bidders, it was decided that integrated
combined system with PET detector located within the MR
Gantry is the equipment which should be procured and
certain other technical requirements were also decided.
The whole process relating to pre-bid discussion was
transparent. This is clear from the letter dated 21.10.2012
written by the representative of PHILIPS to the first
respondent (Annexure-R1 to Writ Petition No.14573/2013)
wherein the representative of the PHILIPS has declared that
the whole process was transparent and specifications do not
favour any particular company. It is also mentioned in the
very letter that PHILIPS had discussed the specifications in
detail in presence of other potential competitors and in
presence of members of the pre-bid committee.
Thereafter Tender Notification was issued on
16.1.2013 based on the recommendations of the Technical
26
Committee. Thereafter PHILIPS addressed a letter dated
21.1.2013 requesting for certain amendments to tender
document including deletion of “the PET detector to be
housed within the MR Magnet”, which means that in
addition to inviting the bid for simultaneous 3T MR PET
Scanner, even sequential 3T MR PET also should be
included in the tender document. Corrigendum was issued
on 8.2.2013 by the first respondent whereby the words
FDA(510 K), CE was to be read as FDA/CE in the tender
document. The said Corrigendum was issued to enable
broad based participation of any vendor who would be in a
position to obtain certification of either of the aforesaid two
internationally reputed regulatory agencies. FDA is a
certificate issued by USA, whereas CE is a certificate issued
by U.K. While the original Tender Notification required
certification from both the authorities, the vendor who was
in a position to produce certification from either of the two
authorities also could participate in the proceedings in view
27
of the said amendment. This was obviously been done to
enable the level playing field for all the vendors and also to
increase their participation. It is relevant to note that
inspite of such relaxation, the first tender notification dated
16.1.2013 received only a single bid from respondent No.2
– SIEMENS.
Since there was single bid, respondent – NIMHANS
decided to re-notify the tender item and as such second
global tender notification dated 19.2.2013 was published by
the first respondent inviting the bids. Pursuant to the said
notification dated 19.2.2013, only WIPRO and SIEMENS
offered their bids. After receiving the aforementioned bids,
the purchase committee meeting consisting of technical
experts was convened on 15.3.2013. In the said meeting,
WIPRO and SIEMENS were invited to participate. After
detailed discussion and scrutiny of specification of the
WIPRO and SIEMENS, the expert committee concluded that
28
neither WIPRO nor SIEMENS met the required technical
specification as notified in the tender. The technical
committee thereafter recommended certain modifications to
the specification in order to provide an opportunity for all
the bidders.
Thereafter one more tender notification was issued
(3rd tender notification) on 16.3.2013 as produced at
Annexure-D to Writ Petition No.14573/2013. In the
meanwhile, PHILIPS addressed a letter on 18.3.2013
requesting the first respondent to include even sequential
3T MR PET Scanner System. Since the technical committee
had earlier recommended for purchase of only simultaneous
integrated 3T MR PET Scanner System with the accessories,
the first respondent had to again consult the members of
the technical committee regarding the request made by
PHILIPS and also feasibility of considering the bids in
respect of sequential 3T MR PET Scanner System. The
29
committee members agreed that even sequential MR PET
Scanner also can be included for consideration. In this
background, corrigendum dated 21.3.2013 was issued by
the first respondent to the third tender notification dated
16.3.2013 for inclusion of sequential 3T MR PET Scanner
System also in the tender document. In furtherance of the
third call dated 16.3.2013 made by the first respondent and
the Corrigendum dated 21.3.2013, all the three bidders
participated.
The aforementioned facts are not in dispute.
7. From the above, it is clear that the changes made
from time to time in the specifications of the system to be
procured were mainly at the behest of the petitioners.
Thus it is not open for the unsuccessful petitioners to
contend that the specifications were altered only to suit the
SIEMENS. Moreover the modification in respect of technical
specifications were made as per the decision of the
30
technical committee consisting of experts not only from
Respondent No.1 institution but also external experts
hailing from different reputed institutions all over the
country. It is needless to observe that the equipment to
be purchased by the first respondent could be only as per
the recommendations of the technical committee.
Absolutely no allegations of favouritism are found in the
writ petitions against any of the members of the technical
committee. In the absence of allegations of favouritism
against any of the individual members of the technical
committee, no credence whatsoever can be given to the
allegation that the specifications were altered in favour of
SIEMENS.
8. The purchase committee consisted of not only the
Director & Vice Chancellor of NIMHANS and other Heads of
departments of NIMHANS but also various reputed external
members such as (a) Head of Nuclear Medicine, AIIMS, New
31
Delhi (b) Head of Nuclear Medicine, Tata Memorial Hospital
and Molecular Imaging, Mumbai (c) Consultant, RMC, Baba
Atomic Research Centre, Tata Memorial Hospital, Mumbai
(d) Professor & Head of Department of Imagiology, Nizams
Institute of Medical Sciences, Hyderabad etc., The
purchase committee consisting of experts in the field
thought it fit to relax the terms obviously in order to get
more competition. It is relevant to note that the relaxation
was made in the public interest, that too mainly at the
behest of the petitioners.
9. It is by now well settled that on matters affecting
policy and requiring technical expertise, the Court would
leave the matter for decision of those who are qualified to
address the issues; Unless the policy or action is
inconsistent with the Constitution and the laws or arbitrary
or irrational or abuse of power, the Court will not interfere
with such matters {see FEDERATION OF RAILWAY
32
OFFICERS ASSOCIATION AND OTHERS .vs. UNION OF
INDIA – (2003)4 SCC 289}.
10. It is relevant to note that the first and the second
tender notifications were issued by the first respondent in
respect of simultaneous 3T MR PET Scanner System only.
As aforementioned, PHILIPS as well as WIPRO did not
choose to participate pursuant to the first tender
notification, but only SIEMENS had participated. However,
pursuant to the second tender notification, WIPRO and
SIEMENS only had participated, PHILIPS did not participate.
As aforementioned, 1st respondent decided to have third
call. Even the third call was in respect of simultaneous 3T
MR PET Scanner System only. However, Corrigendum
was issued by the first respondent accepting the request of
PHILIPS for change of specification. By virtue of the
Corrigendum as aforementioned, even the sequential 3T MR
PET Scanner System was also included alongwith
33
simultaneous 3T MR PET Scanner System in the tender
document.
Only thereafter PHILIPS participated. It filed its bid
for integrated sequential 3T MR PET Scanner system. So
also WIPRO submitted its bid only for sequential 3T MR PET
Scanner System (it was not for integrated model).
However, SIEMENS submitted two bids i.e., one bid for
integrated simultaneous 3T MR PET Scanner System and
another bid for integrated sequential 3T MR PET Scanner
System. It is needless to observe that neither of the
petitioners did bid for integrated simultaneous 3T MR PET
Scanner system.
It is relevant to note that WIPRO had bid for
simultaneous 3T MR PET Scanner system pursuant to the
second tender notification. However, it did not choose to
submit its bid for integrated simultaneous 3T MR PET
Scanner System pursuant to the third tender notification.
34
The very fact that the area was enlarged by including
sequential 3T MR PET Scanner system as also by providing
option to the bidders to obtain certification of either of the
two internationally reputed regulatory agencies viz., FDA
and CE would clearly reveal that it is not a case of
exclusion, but it is a case of inclusion. The first respondent
in order to have broader participation of all the three
manufacturers and in order to consider all the bids
submitted by the bidders, had made aforementioned
changes, that too mainly at the instance of the petitioners
herein. Thus this Court does not find any defect in the
decision making process.
Though the tender was invited for integrated
sequential/simultaneous model, WIPRO had not submitted
its tender for integrated model. However, as
aforementioned PHILIPS had submitted its bid pursuant to
the third tender notification in respect of integrated
35
sequential model, whereas SIEMENS had submitted two
bids i.e., one bid for integrated simultaneous model and
another bid for integrated sequential model.
11. Sri Madhusudana Rao, learned advocate appearing
on behalf of the 1st respondent has contended that reasons
for rejection of the technical bid could not be furnished to
the bidders as writ petition was filed by PHILIPS on
25.3.2013 i.e., on the very next day of the decision. The
meeting was held on 24.3.2013 and on the very next day
i.e., 25.3.2013, Writ Petition No.14573/2013 was filed by
PHILIPS. Therefore this Court is of the opinion that the
advocate for Respondent No.1 is justified in contending that
the reasons could not be furnished to the unsuccessful
bidders for rejection of their technical bid, because of the
aforementioned reason.
36
12. It is relevant to note that the technical bids were
opened on 23.3.2013 in presence of the representatives of
the bidders and the meeting was held on 24.3.2013. In
the said meeting, all the three bidders were represented
and their representatives made detailed presentations
before the committee. After considering the technical bids
of all the three bidders and the presentations made by their
respective representatives and taking into account
advantages and disadvantages of the equipment to be
offered by the bidders, the Committee accepted the
technical bid of the SIEMENS. The decision was
pronounced on 24.3.2013 itself in presence of
representatives of three bidders. According to the first
respondent, representatives of the bidders who were
present in the meeting were fully aware of the
circumstances in which the technical bid of the SIEMENS
was accepted and the reasons as to why the technical bids
of both the petitioners were rejected. Moreover it is made
37
clear in the tender document itself that Respondent No.1
has right to accept or reject one or all the tenders without
assigning any reason. The petitioner having accepted the
conditions of the tender, cannot question the decision of the
first respondent in accepting the technical bid of SIEMENS
and rejecting the bids of the petitioners, that too when the
decision is based on experts’ opinion. As aforementioned,
the bids were considered by the Technical Committee
consisting of several experts who were drawn from various
premier and eminent institutions all over the country. The
technical committee on considering various aspects of the
system to be procured, recommended to accept the bid of
SIEMENS. The recommendation of the technical
committee has been accepted by the first respondent and
the decision was taken to accept the technical bid of
SIEMENS.
38
13. Learned advocates appearing on behalf of all the
three bidders tried to point out the deficiencies in the bids
submitted by other tenderers. Ultimately, the technical
committee against whom no allegation is made had taken
decision to purchase the integrated simultaneous 3T MR
PET Scanner System in the interest of the public at large.
The first respondent is a premier health and research
institute in India and it caters to the needs of the patients
having neurological problems. Keeping the interest of the
public at large and interest of the first respondent
institution, the technical committee has taken decision to
purchase integrated simultaneous 3T MR PET Scanner
System. As aforementioned, on matters affecting policy
and requiring technical expertise, the Court would leave the
matter for decision of those who are qualified to address
the issues. Even if some defect is found in the decision
making process, the Court must exercise its discretionary
powers under Article 226 of the Constitution with great
39
caution and should exercise only in furtherance of the public
interest and not merely on making out a legal point. The
Court should always keep the larger public interest in mind
in order to decide whether its intervention is called for or
not. Only when it comes to a conclusion that
overwhelming public interest requires interference, the
Court should interfere. In the matter on hand, this Court
finds that the public interest is not affected at all. On the
other hand, the Experts Committee has created level
playing field by enlarging the scope of the tender
notification and thereafter has taken decision keeping
interest of the public at large. Since the experts have
taken decision to purchase a particular model, this Court
cannot substitute its view treating itself as an appellate
authority in such matters. The public interest cannot be
jeopardized at the instance of a manufacturer who claims to
have a similar product. The commercial interest of the
manufacturer should yield to the greater public interest.
40
Ultimately, the interest of the public is paramount. The
Courts would interfere with the administrative policy
decision only if it is arbitrary, discriminatory, mala fide or
actuated by bias. In the matter on hand, this Court does
not find any of them. The public interest demands that the
first respondent should purchase the best-suited model/
system, keeping in mind the interests of patients. Since
experts in the field have chosen the system/model offered
by SIEMENS keeping in mind the public interest, the action
is neither arbitrary, discriminatory, mala fide nor actuated
by bias. Law should take back seat to give way to the
larger public interest. In the matter on hand, the first
respondent has taken decision on the basis of the
recommendation of the technical expert committee. As
aforementioned, the committee consisted of number of
experts in the field. Therefore it is not open for the
manufacturer to contend that the decision taken by the
expert committee is bad in the eyes of law. It is also not
41
open for the petitioners to contend that sequential model
ought to have been preferred to the simultaneous model.
14. As can be seen from the statement of objections
filed by the first respondent, it is clear that the models
offered by the petitioners did not satisfy the requirement of
the first respondent. One of the specifications is acquisition
of the PET data and MR sequences should be
simultaneous/sequential and both the modalities shall be
integrated so as to achieve pixel to pixel fusion. In the bid
submitted by PHILIPS it was only stated that the equipment
to be offered is integrated PET MR with sequential imaging
and the same does not refer to the requirement of pixel to
pixel fusion. Whereas the bid submitted by WIPRO was not
for integrated model, but it was only for sequential 3T MR
PET Scanner System. What was needed by the first
respondent was an integrated model to achieve pixel to
pixel fusion.
42
15. It is contended on behalf of the petitioners that
the model offered by SIEMENS was of 2.89 Tesla MRI and
not 3.00 Tesla MRI and whereas the model offered by the
petitioners is of 3.00 Tesla MRI. In other words, the
learned counsel for the petitioners argued that the models
offered by the petitioners would provide more accurate
result as compared to the model offered by SIEMENS. In
the tender notification, the specification of 3.00 Tesla MRI is
stated to be approximate and it was not specified that it is
an absolute requirement. It is no doubt true that the
models offered by the petitioners are of 3.00 Tesla MRI and
the model offered by SIEMENS is of 2.89 Tesla MRI. Since
the tender does not require that the model should have
3.00 Tesla MRI, it is not open for the petitioners to contend
that the model offered by SIEMENS should be rejected.
Moreover it is for the experts in the field to decide as to
which of the model is suitable for the purpose for which the
system is being purchased. Taking into account the various
43
technical specifications and the advantages, which were
found to be in existence in the model offered by the
SIEMENS, the technical committee suggested that 2.89
Tesla MRI offered by the SIEMENS is sufficient and that the
same does not compromise with the quality of imaging.
16. It is relevant to note that the first respondent is
not either in favour of or against any of the bidders. It is
brought to the notice of the Court by the learned advocate
for the first respondent that the first respondent had
already purchased MR PET Scanner systems from both the
petitioners at an earlier point of time. It is also submitted
that the first respondent if need be may purchase the
Scanner System from any of the bidders including the
petitioners in future also as per law.
17. Looking to the totality of the facts and
circumstances, this Court finds that the decision making
process of the first respondent – NIMHANS in the matter
44
on hand is just and proper. The decision is taken in most
transparent manner by the first respondent on the basis of
the recommendations of the Technical Committee
consisting of experts in the field not only from within the
first respondent institution but also from the reputed
institutions all over the country.
In view of the above, no interference is called for.
Petitions fail and the same stand dismissed.
Sd/-
JUDGE
Gss/-