Through this single order , I propose to decide instant petition and Constitutional petition bearing W.P. 13614/2020, wherein decisions of the Technical Evalu ation Committee and Grievance Redressal Committee were impugned.
Both the petitions raise identical questions of law .
2. The subject matter controversy has its origin in the bids invited by procuring agency-Medical Superintendent Nishtar Hospital Multan for purchase of Drugs/Medicines for Nishtar Medical University & Hospital Multan for the financial year 2020-2021 identified as Tender Enquiry No. IPL - 4547 dated 07.06.2020. Petitioners and other interested bidders submitted bids - quoting respective drugs and medicines - in accordance with the terms and conditions prescribed in the bidding docu ments. Nothing is evident from the record that pre-bidding objection was raised qua any term or condition, and even if any objection was raised, such issue has no relevance for the decision of instant petitions. As far as the petitioners were concerned, they submitted bids without objection. Bids submitted were evaluated and petitioner was informed that Firm is responsive for further process for all of its quoted items, except item Nos. 53,54,60,61,62,98 & 99 (Recommendation letters of end users are attached for consideration as per terms & conditions clause No. 87 by Medical Superintendent Nishtar Hospital Multan for F.Y 2020-2021 and to be proceeded as per rules ). Likewise, petitioner Firm in W.P. No. 13614/2020 was also informed that said Firm was found responsive with respect to few quoted items, except some of the items as mentioned in the decision. Petitioners filed grievance petition and also approached this Court by submitting constitutional petitions bearing W.P. No. 13192/2020 & W.P No. 13191/2020, which were disposed of vide order dated 06.10.2020 with direction to Grievance Redressal Committee, Nishtar Hospital Multan to adjudicate upon and decide complaint(s). Grievance Committ ee dismissed the complaint and affirmed the decision of the Technical Evaluation Committee. Hence, these petitions.
3. Report/Para-wise comments were filed by the respondents and rejoinder was also filed by the petitioner thereto.
4. Learned counsel for the petitioners submits that evaluation by Technical Committee was illegal, being violative of Bio-Study Rules, 2017. Further submits that no clinical trial or clinical study without a duly issued license can be carried out; that declaration of non-respo nsive with regard to few of the drugs is of no legal effect when DTL's tests/analysis reports - Form-7 - provided by Government Analysts Punjab in terms of Rule 11 (1) of the. Punjab Drugs Rules, 2007 were provided to the procuring agency . Adds that actually no clinical efficacy/drug usefulness examination was conducted and in absence of such tests no sanctity could be attributed to decision of the Technical Evaluation Committee. Submits that Grievance Committee proceeded to decide the matter in violation of Circular dated 18.10.2017, in terms whereof technical expert from private sector shall form part of the Grievance Redressal Committee in cases of procu rements worth Rs. 100 million. Learned counsel referred to judgments reported as "Mohammad Taki Khan vs. Jang Singh " (AIR 1935 All 529), "Miyana Hasan Abdulla And Anr. vs. State of Gujarat " (AIR 1962 Guj 214, (1962) GLR 107), "Messrs Nawabsons Laboratories (Put). Limited through Managing Director vs. Government of Punjab, Health Department, through Secretary , Civil Secretariat, Lahore and 5 others " (PLD 2003 Lahore 115) and "Muhammad Jamil and another us. The State through Provincial Drug Inspector . Quetta " (PLD 2012 Balochistan 140), " Hafiz Khalil vs. The State" (1996 P .Cr.L.J 1 183).
5. Conversely , learned counsel appearing for Nishtar Hospital, and learned Law Officer, submits that procurement was carried out in accordance with the mandate of Punjab Procurement Rules, 2014 (Rules) and as per the terms and conditions advertised/prescribed in bidding documents. It is emphasized that clinical efficacy/usefulness of the quoted drugs have to be ascertained by end-users/technical committee -- refers to condition 87 of the terms of bidding. Further submits that adequate opportunities were provided to the petitioners to present its case before the Grievance Redressal Committee; allegat ions of discrimination are without any basis; compliance of condition of Circular is not mandatory condition, as absolute compliance of procurement rules was ensured.
6. Arguments heard. Record perused.
7. This Court in the exercise of constitutional jurisdiction will confine itself to determination of questions of law, i.e., to see if any illegality is committed; if element of procedural unfairness is evident and/or particular bias was demonstrated against the petitioners. And technical aspects of the matter , i.e, appraisal or analysis of report or decision reached by the Technical Evaluation Committee, which issues require appreciation of facts, are not interfered with.
8. The heart of the controversy is condit ion 87 of the bidding documents, which, for convenience, is reproduced hereunder: "87. Clinical Efficacy/Usefulness of quoted items will be evaluated by the end-user(s)/technical committee and shall be given 100 % weight age. If the product is failed to satisfy the clinical parameters and not approved by the end -- user(s)/technical committee on clinical grounds, it will be rejected in-spite of qualifying other parameters."
9. There is no cavil to the fact that condition spells out core requirem ent of evaluating the clinical efficacy/usefulness of quoted items by the end-user(s)/technical committee for satisfying itself regarding clinical parameters/clinical grounds. It is evident from the text of the Technical Evaluation Committee decision that said exercise was carried out, reference to recommendation letters is an adequa te testimony to said fact. The recommendation letters enclosed manifest evaluation qua efficacy and usefulness. The mechanism adopted, veracity of recommendation letters - enclosed with the report/para-wise comments - opinions expressed, and determination qua the results procured are all technical matters and are not subject of exercise of judicial review jurisdiction. The submission that provisioning of DTL's certificates, confirming that items quoted are of standard quality and have passed a test, is sufficient compliance of conditions of bidding documents and such tests be per se taken as proof of clinical efficacy/usefulness, is fallacious and bound to fail, when examined in the context of the details of results of tests/analysis -provided against serial 8 of DTL's certificate. The submission regarding violation of Bio-Study Rules, 2017 is misconceived, which rules are not applicable in view of conditions of bidding, nor impede evaluation regarding efficacy/use fulness of quoted drugs/medicines. The efficacy/usefulness of quoted items was ascertained in accordance with condition 87 of bidding documents, despite inclusion of which condition petitioners participated in the bidding process. It is pertinent to mention that responsibility and ownership qua declaration of efficacy/usefulness of drugs, declared responsive and non-responsive, in terms of. condition 87, vested with the Technical Evaluation Committee, which assumed and exercised responsibility , being conscious of its sensitivity and impact on human life. This Court will not interfere to adjudge technical aspects of the decision of Technical Evaluation Committee. The allegation of discrimination is without force, which is an afterthought and ill- intentioned attempt to thwart procurement process.
10. It is evident from the documents provided that contract was awarded to the petitioners with respect to responsive items, which may have been accepted and acted upon by now, without objection. Reference is made to Award of contract letters dated 23.10.2020. So on the one hand the petitioners object to the determination of clinical efficacy/usefulness evaluation - with respect to items declared non- ' responsive - and on the other reaping benefits of the procurement process. Clinical efficacy/usefulness of the quoted drugs -declared responsive -was determined in terms of condition 87, if petitioners have not objected to said evaluation, how could same express reservations when same exercise was undertaken to declare certain items non-responsive. Nothing is placed on record, while. submitting rejoinder that petitioner has declined to accept the.award with respect to responsive drugs/medicines. The petitioner has participated with other bidders, accepting terms and conditions of bidding which in terms of Rule 31 of the Punjab procurement Rules, 2014 are formulated for prescribing evaluation criterion- and now no objection can be raised regarding condition 87 to the disadvantage/prejudice of other bidders, successful or otherwise. The judgments referred by learned counsel are distinguis hable and none is applicable to the facts of the case.
11. I have examined the record and do not find any illegality , procedural defect, unfairness or any perverse act/conduct, to the prejudice of the petitioners. This tendency of initiating litigation after being unsuccessful upon the completion of competitive bidding process is deprecated and it is believed that procuring agencies shall take into consideration such undesirable conduct while evaluating bids by such entities in future.
12. In view of above, these petitions are without any merit and same are, therefore, dismissed.