KALPESH SATYENDRA JHAVERI,J. - (1.) By way of this appeal, the appellant has assailed the judgment and order of the learned Single Judge whereby learned Single Judge has dismissed the writ petition filed by the petitioner-appellant herein confirming the order of the First Appellate Authority and Second Appellate Authority.
(2.) The facts of the case are that respondent No.2 (a Government Company) issued Notice Inviting Bids (NIB) for supply of surgical equipment and sutures including "Regular Sutures", "Synthetic Absorbable Sutures" and "Synthetic Absorbable Antibacterial Triclosan Coated Sutures". Items at Serial No. R-9, R-11, R-12, R-13, R-15, R-17, R-18 R-19, R-64, R-65 and R- 67 related to "Synthetic Absorbable Sutures". Items at serial No. R-68 to R-74 related to "Synthetic Absorbable Antibacterial Triclosan Coated Sutures". E-bids were required to be submitted in two parts namely Technical Bid and Price Bid. The controversy in the present case relates to antibacterial coated sutures. The bidders were required to be either manufacturer having valid manufacturing licence or direct importer holding valid import licence. All bidders were required to have at least three years Market Standing as manufacturer/importer. All bidders were required to submit attested copy of requisite licence as well as Market Standing Certificate duly issued by the Competent Authority.
(3.) The petitioner-appellant herein has mainly raised the controversy on the ground that samples of the appellant were sent to a laboratory of ISO whereas sample of respondent no.6 is sent to University and they were not allowed to play on equivalent play ground. The product of the appellant was found to be on better footing over and above the required criteria which reads as under: The following samples were tested SA-323, SA- 324, SA-325, SA-326, SA-327, SA-328 and SA- 329. Overall, the results show that the sutures are effective and have bacteriostatic properties. The sutures exhibit higher effectiveness towards S. aureus (+20%) than towards E. coli (-3%) as compared to controls. 3. 1 It is alleged that the product of respondent no.6 was matching with the product of the appellant so the appellant claim its product to be better placed than respondent no.6. 3. 2 Counsel for the appellant has taken us to provisions of Section 13 and 32 of the Rajasthan Transparency Public Procurement Act, 2012 and Rule 5 of the Rajasthan Transparency in Public Procurement Rules 2013 which reads as under:- 13. Single part and two part bids.- (1) Subject to the provisions of this Act and the rules and guidelines made thereunder, a procuring entity may choose to- (a) call for bids in which the technical, quality and performance aspects, commercial terms and conditions and the financial aspects including the price are contained in a single envelope; or (b) if it is of the opinion that it is essential to evaluate the technical aspects of a bid before considering its financial aspect, call for bids in two envelopes, namely:- (i) the techno-commercial bid containing the technical, quality and performance aspects, commercial terms and conditions; and (ii) the financial bid containing financial aspects including the price. (2) In case the procuring entity calls for bids in terms of clause (b) of sub-section (1), the techno-commercial bid shall be opened and evaluated first and the financial bid of only those bids which have been found technically acceptable, shall be opened and evaluated. 32. Two stage bidding.- (1) A procuring entity may choose to procure the subject matter of procurement by the method of two stage bidding, if- (a) it is feasible for the procuring entity to formulate detailed specifications or identify specific characteristics for the subject matter of procurement, without receiving inputs regarding its technical aspects from bidders; or (b) the character of the subject matter of procurement is subject to such rapid technological advances and market fluctuations to make open competitive bidding unfeasible; or (c) the procuring entity seeks to enter into a contract for the purpose of research, experiment, study or development, except where the contract includes the production of items in quantities sufficient to establish their commercial viability or to recover research and development costs; or (d) the bidder is expected to carry out a detailed survey or investigation and undertake a comprehensive assessment of risks, costs and obligations associated with the particular procurement. (2) Subject to the rules as may be made in this behalf, the procedure for two stage bidding shall include the following, namely:- (a) in the first stage of the bidding process, the procuring entity shall invite bids containing the technical aspects and contractual terms and conditions of the proposed procurement without a bid price; (b) all first stage bids, which are otherwise eligible, shall be evaluated in accordance with the procedure laid down in the rules through an appropriate committee constituted by the procuring entity; (c) the committee may hold discussions with the bidders and if any such discussion is held, equal opportunity shall be given to all bidders to participate in the discussions; (d) in revising the relevant terms and conditions of the procurement, the procuring entity shall modify the fundamental nature of the procurement itself, but may add, amend or delete any specifications of the subject matter of procurement or criterion for evaluation; (e) notwithstanding anything contained in sections 29 and 30, in the second stage of the bidding process, the procuring entity shall invite bids from all those bidders whose bids at the first stage were rejected, to present final bid with bid prices in response to a revised set of terms and conditions of the procurement; (f) any bidder, invited to bid but in a position to supply the subject matter of procurement due to changes in the specifications, may withdraw from the bidding proceedings without forfeiting any bid security that he may have been required to provide or being penalised in any way, by declaring his intention to withdraw from the procurement proceedings with adequate justification. 3. 3 He further contended that the authority has committed a serious error in considering the difference between the two products and the respondent no.6 was fulfilling the technical bid and was having license for importing the product and all the authorities including the learned Single Judge have considered the case of the appellant in correct perspective. 3. 4 He has also taken us to Rule 7 of the tender document which reads as under: 7. Opening of Technical Bid and Technical Evaluation (a) The Bid will be scrutinized by Bid evaluation committee and inspection of manufacturing unit for compliance of GMP may be carried out by technical committee. Price Bid (BOO) of the Bidder found eligible on satisfying the criteria for technical evaluation and inspection, will only be opened. (b) Technical Evaluation:- Technical Evaluation of the Bid will be done in two stages. (I) Technical Evaluation on the basis of documents. This is to examine whether the bidder qualifies as per given eligibility and other prescribed conditions. (ii) Evaluation/Examination Testing of samples of Items. Bids of the item, samples found technically fit in such evaluation will be declared as rejected/non-responsive. 3. 5 Counsel for the appellant contended that opening of technical bid is contrary to tender condition and therefore contract awarded to respondent no.6 is contrary to tender condition and in view of decision of Supreme Court the same is required to be quashed and set aside. 3. 6 Counsel for the appellant has taken us to the order of First Appellate Authority dated 21.4.2017 where the Authority has observed as under:- 3. 7 He has also taken us to the observations made by the Second Appellate Authority holding as under:- "Antibacterial Coating is broad term which mean antibacterial efficacy either by bactericidal or bacteriostatic properties. Bactericidal agents are used to Kill microorganisms inhibiting the synthesis of cell wall whereas Bactriostatic agents are used to limit the growth and reproduction of microorganisms by interfering with their protein production and DNA replication. The testing of two firm's (1 M/s Johnson and Johnson Pvt. Ltd. 2. M/s Futura Surgicare Pvt. Ltd.) product are bactericidal (zone of Inhibition) and third firm (M/s Covidien Healthcare India Pvt. Ltd.) have bacteriostatic properties. Testing by both methods considered antibacterial by the technical/clinical evaluation committee". 3. 8 Counsel for the appellant contended that both the authorities have dealt with the arguments which were raised by the appellant. 3. 9 He has also invited our attention to ground-J taken by him in appeal before the second appellate authority which reads as under;- J. Because the learned respondent no.1 erred in considering the fact that none of the existing product documents (import License, IFU, product label, etc.) of Covidien contain claim of antibacterial coating. It was submitted by the appellant that the CHIPL was trying to make a new claim on their existing product, which as per provisions of Rule 122A read with 122E(b) of Drugs and Cosmetics Rules, 1945 under the Drugs and Cosmetics Act 1940 is required to be approved by the Drug Regulator. None such regulatory approval document has been submitted for the new claim. It was also submitted by the appellant that CHIPL has complied with the qualification requirement for R68-R74 of submitting a valid drug licence which includes their claim of being an "antibacterial coated suture". The finding of the First Appellate Authority is clearly demonstrative of the fact that it is just a ruse so as to give a perverse order against the Appellant." 3. 9 He contended that the said aspect has been properly appreciated by the authorities and in a stereo type manner, the authorities without considering the contention of present appellant rejected the appeal. 3. 10 Counsel for the appellant has also taken us to the analysis which was done in the Oasis test house wherein it was found as under: Result of Test:- Anti-bacterial efficacy of coated sutures via zone of inhibition: "Anti-microbial efficacy was determined on agar plate by diffusion plate test by using the strain Staphylococcus aureus (ATCC 6538P), Escherichia coli (ATCC 8739), Staphylococcus epidermidis (ATCC 12228) and Salmonelia abony (NCTC 6017). The zone of inhibition was measured from the middle of the thread. The suture containing triclosan showed following zone of inhibition after 24 hours at 370 C. JUDGEMENT_135_LAWS(RAJ)7_2018_1.html In the opinion of the undersigned, the sample referred to above (coated suture containing triclosan) is having Anti-bacterial efficacy for the reasons given above. #Antibacterial with Triclosan Sterilized Surgical Needled Suture (Braided Coated Polygiactin 910 Violet), 1m, 40mm 1/2 Circle Heavy Round Bodied, 1 (4 Metric) 3. 11 Counsel for the appellant has raised an arguments that both the authorities have dealt with each contention of the appellant and wrongly rejected the appeal by a cryptic order without assigning reasons and rejecting the contention raised by the appellant. The same is position with the learned Single Judge. The learned Single Judge has considered all the contentions which has been raised though referred in the judgment. 3. 12 Counsel for the appellant has further contended that the respondent has no import licence, therefore, his bid ought to be considered on the ground of lowest price.;