SIEMENS HEALTHCARE PRIVATE LIMITED & ANR  Vs DIRECTORATE GENERAL OF HEALTH SERVICES, CENTRAL PROCUREMENT AGENCY & ORS

W.P.(C.) No. 3452/2020 Page 1 of 11 $~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 19.01.2021
% W.P.(C) 3452/2020 & CM APPL. 12240/2020
SIEMENS HEALTHCARE PRIVATE LIMITED & ANR
….. Petitioner s
Through: Mr. Govind Rishi, Advocate.

versus

DIRECTORATE GENE RAL OF HEALTH SERVICES, CENTRAL
PROCUREMENT AGENCY & ORS ….. Respondent s
Through: Mr. Gautam Narayan, ASC.
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J. (ORAL )

1. The petitioner has preferred the pres ent writ petition seeking the
following reliefs:
“a) Allow present Writ Petition under Article 226 & 227 read
with Article 14 & 21 of the Constitution of India and Issue a
writ thereby quashing/modification of the impugned
order/decision dated 03.04.2020 a nd 08.04.2020 (Annexure P-
8 ) passed by Respondent No.1 thereby unilaterally
disqualifying the Petitioner and not opening the financial bid of
Petitioner.
b) And directions may please be issued to allow the Petitioner‟s
financial bid may kindly be opened a nd petitioners also be
allowed to participate further in the said tender and if bid of
petitioner is Lowest, petitioners may be awarded the work.
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W.P.(C.) No. 3452/2020 Page 2 of 11 c) AND Allow present Writ Petition under Article 226 & 227
read with Article 14 & 21 of the Constitution of In dia and
further it is prayed that the operation of the opening of the
financial bid may kindly be stayed till the present writ petition
is pending before this Hon‟ble Court as the same will
automatically come into operation after opening of the
technical b id.”
2. The case of the petitioners is that the respondents initiated an e- tender
process for the purpose of procuring 3 units of 1000mA Digital Flat Panel
Fluoroscopy Radiography System and related services by way of a tender
document bearing tender ID 2019 _DHS_181723_1; Ref no: TN 19_10
1000mA DFRS Covering 1000 MA DIGITAL FLAT PANEL
FLUOROSCOPY RADIOGRAPHY SYSTEM.
3. The petitioner no.1, an affiliate company of petitioner no.2,
participated in the tender process and its technical bid was found to be in
order . However, soon thereafter on 03.04.2020 , the petitioner no.1 was
informed that it was disqualified from the tender process , without being
provided any reasons therefor. The petitioner then made several
representations to the respondents requesting that th e reasons for its
disqualification be disclosed , which went unanswered . Finally on
29.05.2020, the petitioner received an email from the respondents –
communicating the reasons for its disqualification. The said email
communication reads as follows;
“Sir
With reference to information sought by Kumar, Rakesh
rakesh.kumar@siemenshealthineers.com via email on dated
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W.P.(C.) No. 3452/2020 Page 3 of 11 12.05.2020, as directed and approved by the Competent
Authority the clarification in t his matter is as under –
M/s Siemens Healthineers had participated in Tender ID :
2019_DHS_181723_1 ; Ref no : TN19_10 1000mA DFRS
Covering 1000 MA DIGITAL FLAT PANEL FLUOROSCOPY
RADIOGRAPHY SYSTEM and PQ Evaluation Committee has
disqualified to the said fi rm due to submission of undertaking
which was not verified / notarized as per Tender requirement .
Then, the file was sent to the Technical Evaluation Committee
and file was received back with the note of the committee,
declaring all the bidders technically compliant.
But, since the M/s Siemens Healthineers was already
disqualified at the PQ stage, therefore, permission to open the
price bid of the PQ and TQ qualified bidder was taken from
Competent Authority.
Regards
Prabhat Kumar ” (emphasis suppl ied)
4. Upon receiving the aforesaid reasons, the petitioner preferred the
present writ petition which was taken up by the Court on 10.06.2020. While
issuing notice in the petition on that date, this Court directed the respondents
to refrain from taking any f urther steps to finalise the L1 Bidder in respect of
the tender in question , till the next date . That interim order has been
extended thereafter and continues to operate. The respondents have filed
their counter -affidavit and their written submissions alo ng with several
decisions, on which reliance is sought to be placed.
5. We have heard the learned counsel s, and proceed to judgment.
6. The submission of learned counsel for the petitioner is that the reason
for disqualifying the petitioner is stated to be t he petitioner’s failure to
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W.P.(C.) No. 3452/2020 Page 4 of 11 submit an undertaking duly verified/ notarised as per the tender
requirements. The requirement for submission of tender document s along
with the duly notarised undertaking is stipulated in Section 1 of the tender
document titled “Introduction & Notice Inviting Tender ” Clause 6 there of
provides that “ E-Tenders (both Technical bid and Price Bid) will be
received at the e -procurement site as per the date & time specified above.
EMD and Notarised Undertaking must be submitted physica lly as well .”
(emphasis supplied) Further, Clause 11 sets down the documents comprising
the tender . Clause 11 .1(A)(f) addresses the documents pertaining to
Technical Bid , and requires the bidder to present an undertaking as per the
Annexure U notarized on Rs. 100 stamp paper – to be submitted physical ly
as well as online , at the e -procurement site against the tender ID of the
tender concerned .
7. The case of the petitioner is that in compliance of the said tender
conditions, it submitted the undertaking in te rms of Annexure -U on a stamp
paper of Rs. 100 notarised on 20.11.2019 by a Public Notary , namely , Ms.
Shama Rani having registration No. 2682. A copy of this undertaking has
been placed on record by the respondent no.1 as Annexure R -2 to its reply
dated 30 .07.2020 . It can be seen that the first page of the document – which
is the certificate of stamp duty payment, is the page on which the
petitioner’s undertaking as per Annexure -U begins , and continues into the
next 2 pages and the first page bears the stam p, seal and signatures of the
aforesaid notary public . It also bears the signatures of Mr. Yogesh Batra,
Senior General Manager of the petitioner. The fact that the document runs
into three pages is also evident from the print out itself, which carries the
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W.P.(C.) No. 3452/2020 Page 5 of 11 pagination of the document at the bottom of the page in the form of “page
1of 3”, “page 2 of 3” and “page 3of 3”.
8. The submission of learned counsel for the respondent , Mr Narayan is
that undertaking as per Annexure U submitted by the petitioner cannot be
considered as duly verified/ notarized as per the tender requirement s,
because the seal and signature of the notary public was affixed only on the
first page of the document, and not on the second and third page s which
contained all the material undert akings and declarations. Mr. Narayan
submits that the issue is of ownership of the document containing the
undertaking. Since the sec ond and the third pages of the u ndertaking were
not duly attested, notarized, the petitioner would be able to easily wrig gle
out of the undertaking contained in the unattested pages, in case any issue
arises therefrom in the future. He submits that pages 2 and 3 of the
document submitted by the petitioner contains all the material terms,
conditions, undertakings and declara tions and the first page merely contains
the formal recitals.
9. A further submission of learned counsel for the respondent is that the
tender in question is governed by the Manual for Procurement of Goods,
2019, which in Clause 3.2 contains the Code of Int egrity for Public
Procurement. He submits that the requisite terms contained in the format of
Annexure -U incorporate requirements of the Code of Integrity for Public
Procurement and, therefore, all statements by the petitioner in that regard
had to be dul y notarized .
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W.P.(C.) No. 3452/2020 Page 6 of 11 10. Mr. Narayan has also submitted that though the petitioner was
communicated the factum of its bid being disqualified on or about
08.04.2020, the present petition came to be filed only about two months
later. He, therefore, submits that the pe titioner is not entitled to seek any
discretionary relief s from this Court in the exercise of its writ jurisdiction.
In support of this submission, he places reliance on State of M.P. and Ors.
v. Nandlal Jaiswal and Ors ., (1986) 4 SCC 566 , where in the Sup reme Court
held that it was well settled that the power of High Court to issue an
appropriate writ under Article 226 of the Constitution of India is
discretionary and , in the exercise of such discretion , the High Court does not
ordinarily assist the tardy , the indolent , the acquiescent , or the lethargic.
11. Mr. Narayan has also relied on the decision of a Coordinate Bench of
this Court in Kalyani Health Care Products & Pharmaceuticals through
Yogesh Jindal v. Govt. of NCT of Delhi & Ors. , W.P. (C) No. 7010 of
2019 , decided on 03.07.2019. In the said case, the petitioner bidder had
failed to submit the relevant documents with its pre-qualification bid and
had uploaded/ submitted the same subsequently with the technical bid . The
submission of the petitioner therein was that it was immaterial whether the
requisite documents were uploaded with the pre -qualification bid, or with
the technical bid . As long as the documents were duly uploaded ; a technical
approach should not come in the way of the petitioner seeki ng justice . This
submission of the petitioner in that case was rejected by the Division Bench
by observing in paragraph 18 of its judgment that it was not for the Court to
re-write the terms of the tender documents which stood purely in the domain
of the tender issuing authority . Once the tender conditions required certain
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W.P.(C.) No. 3452/2020 Page 7 of 11 documents to be uploaded at the prequalification bid, it was not open for the
petitioner to upload them with the technical bid.
12. In the light of these submissions, two issues arise for ou r
consideration. The first is whether the undertaking in Annexure U
submitted by the petitioner can be said to not be duly attested or verified, as
claimed by the respondents, and, secondly, even if there was some technical
infirmity – as claimed by the r espondent, whether the same justified
rejection of the petitioner’s bid by disqualifying the petitioner. To examine
the second submission, we may note Clause 27 of the Tender Conditions,
which reads as follows:
“27. Minor Infirmity/Irregularity/Non -Confo rmity
27.1 If during the evaluation, the TIA found any minor
informality (ie. which has no material deviation and financial
impact on the bid and also do not prejudice or affect the
ranking order of the tenders) and/or irregularity and/or
nonconformity in a tender, the TIA may convey its observation
on such „minor‟ issues to the bidder by e -mail asking the bidder
to respond by a specified date, which shall not ordinarily be
more than seven working days (except in unavoidable
circumstances). If the bidder d oes not reply by the specified
date or gives evasive reply without clarifying the point at issue
in clear terms, that tender will be liable to be ignored. ”
13. The submission of learned counsel for the petitioner in relation to the
first issue is that the Not ary Public, in terms of the Notaries Act, 1952, is,
inter alia, authorized to “ verify, authenticate, certify or attest the execution
of any instrument ”. The submission is that, in the present case, the Notary
Public Ms. Shama Rani had verified the executi on of the petitioner’s
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W.P.(C.) No. 3452/2020 Page 8 of 11 Annexure U undertaking , since its executive Mr. Batra had signed the said
document in her presence , whereafter she had affixed her stamp, seal and
signatures on the first page of the document. Mere failure on her part to
attest the complete document would not mean that the document is not
attested, or that she has not verified the execution there of.
14. On the aforesaid aspect , the submission of Mr. Narayan is that the
Notary Public should have attested each and every page of the docum ent on
which the executant had affixed his signature s. Moreover, the last page of
the undertaking bears the signature of another officer of the petitioner,
namely Chandra Shekhar, the General Manager – Commercial. The Notary
Public could certainly not ha ve verified or attested the signatures of the said
Mr. Chandra Shekhar and thus, according to Mr. Narayan, the undertaking
could not be treated as being duly attested.
15. Upon a perusal of the tender conditions , we find that there was no
requirement for two authorized officers of the bidder to execute the
undertaking as per Annexure U. The document of undertaking furnished by
the petitioner bears the signature of Mr. Batra, the Senior General Manager
on all the three pages, including on page 1 , on which the a ttestation of the
Notary Public is found . If the submission of Mr. Narayan were to be
accepted, it would mean that only page 1 of the 3 pages of the undertaking
as per Annexure U were presented before the Notary Public , and she
proceeded to attest the same without bothering to see whether pages 2 and 3
of the said document existed; and were signed by the petitioner’s officer
who was the executant of the undertaking . This – despite the fact that each
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W.P.(C.) No. 3452/2020 Page 9 of 11 page of the undertaking discloses the fact that it is a 3 page document.
There is no reason for us to assume that the Notary Public did not know her
job, or that she did not perform her duty in the manner expected of her. We
cannot assume that despite the undertaking being a 3 page document, she
witnessed the e xecution of only the first page and not the other two pages by
Mr. Batra – the Senior General Manager of the petitioner. Mere failure on
her part to put her stamp, seal and signatures on the remaining two pages of
the document would not lead to the infere nce that the entire document has
not been verified, signed and attested by the Notary Public. We, therefore,
reject this submission of the respondent.
16. In any event of the matter, Clause 27 of the Tender Conditions taken
note of hereinabove , was incorpor ated precisely to deal with such like
situations. Thus, in our view, non-affixation of the stamp and signature of
the Notary Public on pages 2 and 3 of the document Annexure U, at the
highest , was a minor non -conformity, or irregularity, or infirmity. Th e
intention of the petitioner to submit the undertaking as per Annexure U with
due attestation is clear from the fact that the document as submitted by it
bears the attestation of the Notary Public , though only at the first page.
Even if the Evaluation Co mmittee of the respondents felt that the
undertaking in Annexure U Format should bear the attestation on all the
pages, they could and should have called upon the petitioner to make good
the said so -called deficiency or infirmity.
17. In our view, the respon dents have resorted to hairsplitting , and taken a
hyper technical view of the matter to non -suit the petitioner . The approach
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W.P.(C.) No. 3452/2020 Page 10 of 11 of the respondents cannot be described as either fair or reasonable. The
respondent cannot sit with a magnifying glass while exa mining the bid
document, with the objective of disqualifying the bidders on some or the
other ground, howsoever petty or whimsical it may be. If there is a clear
non-compliance of a mandatory condition, the Tender Evaluation
Committee would be justified i n rejecting the bid. At the same time, it
cannot adopt an approach to unreasonably disqualify an otherwise qualified
bidder. The purpose of scrutiny of a tender document submitted by a bidder
should not be to non -suit the bidder on such hyper technical i ssues. Such
exclusion on hyper technical approach would not be in public interest as it
would curtail competition. The whole purpose of procuring goods and
services by public authorities through the process of tender/ auction is to get
the most competiti ve bids for the best product offer ed. Pertinently, in the
present case, apart from the bidder, there was only one other tenderer , and
exclusion of the petitioner was certainly not in public interest, since the said
exclusion was founded upon completely un justified grounds.
18. Reliance placed by Mr. Narayan on the Manual for Procurement of
Goods, 2017 is neither here nor there , as the same does not deal with the
issue at hand . In our view, the undertaking Annexure U, as submitted,
firstly is duly notarized and, secondly, the minor infirmity therein, if any,
warranted the invocation of Clause 27 by the respondents. Reliance placed
on Nandlal Jaiswal (supra) is misplaced for the reason that in the present
case, there is no delay on the petitioner’s part in ap proaching this Court .
Even though the petitioner was informed of its disqualification in April,
2020 , its repeated queries to seek the reasons for its disqualification were
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W.P.(C.) No. 3452/2020 Page 11 of 11 answered only as late as on 29.05.2020. Soon, thereafter, the writ petition
was pr eferred on 08.06.2020 . Moreover, the respondent, apart from opening
the financial bid of the only other bidder, did not proceed to award the
tender till the petitioner approached this Court. Therefore, it does not lie in
the mouth of the respondent to cl aim that the petitioner was ignorant, tardy,
indolent or lethargic in seeking legal redressal. Similarly, reliance placed on
Kalyani Health Care Products (supra) is misplaced , since that was a case
where the petitioner had failed to submit/ upload the req uisite documents
within the qualification period before the close of the tender. It is not the
respondent’s case that the petitioner has not submitted the undertaking
Annexure U within the stipulated time .
19. In view of the aforesaid, we allow this petitio n and quash the
disqualification of the petitioner in respect of the tender in question. In case,
the respondent s desire to call upon the petitioner to make good the infirmity
in terms of Clause 27 by submitting any other undertaking in terms of
Annexure U, the respondents shall grant an opportunity to the petitioner to
do the needful , and then proceed to deal with the petitioner’s tender in
accordance with law. The parties are left to bear their respective costs.

VIPIN SANGHI, J

REKHA PA LLI, J
JANUARY 19, 2021
N.Khanna
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