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of <h1>BVG India Limited's technical bid rejection overturned for violating NIT Clause 2.2 requirements</h1> <h3>BVG India Ltd., Sammaan Foundation and M/s Ziqitza Health Care Ltd. Versus The State of Bihar, The Executive Director, State Health Society, Bihar, M/s Pashupatinath Distributors Private Limited, M/s GUK Emergency Management and Research Institute and Ziquitza Health Care Ltd.</h3> The Patna HC set aside the rejection of BVG India Limited's technical bid, finding it contrary to NIT Clause 2.2 which did not require internal audited ... Maintainability of petitioners’ writ petition filed by the BVG Limited and two others - maintainability of petition filed by M/s Ziqitza Healthcare Limited on the ground of delay - rejection of bid application of Petitioner – BVG India Limited and two others - eligibility criteria under Clause 2.2 and Clause 2.3 of NIT - eligibility of bid application. Whether the writ petition filed by BVG India Limited and others is maintainable? - HELD THAT:- Petitioner – BVG India Limited and two others have made out a prima facie case that rejection of their technical bid is contrary to factual aspects and contrary to Clause 2.2 of NIT. Clause 2.2 does not stipulate or instruct respective bidders to furnish internal material information from the Audited Balance Sheet read with the statement of profit and loss like Notes. Therefore, impugned decision in disqualifying the petitioner BVG India Limited and others stands set aside. Whether the petition filed by M/s Ziqitza Healthcare Limited is maintainable on the grounds of delay? - HELD THAT:- Society - second respondent should have rejected its bid, however, Society being one of the State institution should have been fair in bid process without there being a violation of Article 14 and arbitrariness in the bid process. On these counts, the fourth respondent’s technical bid evaluation and further proceedings of financial bid and declaring as L1 and further award of contract are liable to be set aside. Further, process of revisiting the remaining bid application are required to be examined from the stage of technical evaluation till award of contract. Whether the rejection of the bid application of BVG India Limited and others was justified? - HELD THAT:- Fourth respondent as a sole bidder does not fulfill the turnover INR 100 crore and so also experience. Further it is to be noted that as on the last date of submission of bid application, whatever experience gained by the respective bidders were to be taken into consideration, same could not be beyond the last date of submission of bid application for the purpose of gaining or considering the experience of a particular bidder. If the last date of submission of bid application is taken into consideration, the fourth respondent does not fulfill the experience criteria. Therefore, cited decisions namely New Horizon Ltd and M/s N.G. Projects Limited cited supra have no application or assisting the fourth respondent’s eligibility criteria of experience as contended by him. Therefore, the fourth respondent has not made out a case so as to affirm the decision of the second respondent – Society insofar as declaring that the fourth respondent to be qualified in the technical bid, financial bid, declaration of L1 and further award of work in his favour - petitioner BVG India Limited has made out a case to the extent that disqualifying or rejecting his bid application at technical stage vide order dated 22.11.2022 stands set aside. Whether the bid application of M/s Pashupatinath Distributors Private Limited met the eligibility criteria under Clauses 2.2 and 2.3 of the NIT? - HELD THAT:- Perusal of the records, it is evident that, there is no fairness on the part of the second respondent insofar as rejection of the petitioners – BVG bid application for want of internal materials of the Audited Balance Sheet like Notes. Similarly, while handling bid application of the fourth respondent – Pashupatinath Distributor Private Limited have failed to take note of eligibility of the fourth respondent insofar as Clause 2.2 read with Clause 2.3 of the NIT, which has been analyzed in earlier paragraph, therefore, the impugned action of the second respondent Society is unreasonable, arbitrary and in violation of Article 14 of the constitution of India. Whether M/s Ziqitza Healthcare Limited should be declared as L1 if M/s Pashupatinath Distributors Private Limited's bid is found to be non-compliant? - HELD THAT:- Respondent No. 2 – Society is hereby directed to revisit from the stage of technical evaluation among the remaining bidders including petitioner – BVG India Limited and petitioner – Ziqitza and others, if any and proceed to evaluate technical bid afresh and thereafter undertake further proceedings. The above exercise shall be completed within a period of two months from the date of receipt of copy of this order. Till then, the interim arrangement made by this Court shall continue. Conclusion - The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The rejection of BVG India Limited's bid and the award of the contract to M/s Pashupatinath Distributors Private Limited rejected, directing a reevaluation of the bids. Petition allowed. 1. ISSUES PRESENTED and CONSIDEREDThe judgment addresses the following core legal questions:Whether the writ petition filed by BVG India Limited and others is maintainable.Whether the petition filed by M/s Ziqitza Healthcare Limited is maintainable on the grounds of delay.Whether the rejection of the bid application of BVG India Limited and others was justified.Whether the bid application of M/s Pashupatinath Distributors Private Limited met the eligibility criteria under Clauses 2.2 and 2.3 of the NIT.Whether M/s Ziqitza Healthcare Limited should be declared as L1 if M/s Pashupatinath Distributors Private Limited's bid is found to be non-compliant.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Maintainability of BVG India Limited's Writ PetitionLegal Framework: The petitioners argued that the consortium agreement was valid for questioning the disqualification.Court's Reasoning: The court found no defect in the affidavit or Vakalatnama and held the petition maintainable.Conclusion: The preliminary objection regarding maintainability was rejected.Issue 2: Maintainability of M/s Ziqitza Healthcare Limited's PetitionLegal Framework: The respondents argued delay in filing the petition.Court's Reasoning: The court accepted the explanation for the delay, noting the ongoing proceedings involving BVG India Limited.Conclusion: The preliminary objection regarding delay was rejected.Issue 3: Rejection of BVG India Limited's BidLegal Framework: Clause 2.2 of the NIT and the requirement for audited balance sheets.Court's Reasoning: The court found that the requirement for notes in the audited balance sheet was not explicitly stated in the NIT.Conclusion: The rejection of the bid was deemed arbitrary and set aside.Issue 4: Eligibility of M/s Pashupatinath Distributors Private LimitedLegal Framework: Clauses 2.2 and 2.3 of the NIT regarding turnover and experience.Court's Reasoning: The court found discrepancies in the turnover and experience claims of the fourth respondent.Conclusion: The bid was found non-compliant, and the award of the contract was set aside.Issue 5: Declaration of M/s Ziqitza Healthcare Limited as L1Legal Framework: The principle of awarding the contract to the next eligible bidder.Court's Reasoning: The court did not automatically declare M/s Ziqitza as L1 but directed a reevaluation of bids.Conclusion: The court directed a reevaluation of the remaining bids.3. SIGNIFICANT HOLDINGSCore Principles Established: The court emphasized the need for transparency and fairness in the tender process, as well as adherence to the stated criteria in the NIT.Final Determinations: The court set aside the rejection of BVG India Limited's bid and the award of the contract to M/s Pashupatinath Distributors Private Limited, directing a reevaluation of the bids.Verbatim Quotes: 'The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted.'The court's decision underscores the importance of following the tender process's rules and ensuring that all bidders are evaluated fairly and transparently. The judgment mandates a reevaluation of the bids to ensure compliance with the eligibility criteria outlined in the NIT.
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