Case Note & Summary
The petitioners, Bharat Biotech International Ltd, challenged the grant of a contract by the Municipal Corporation of Greater Mumbai (MCGM) for the supply of Rabies Vaccine to respondent no.3, a distributor of respondent no.4 (manufacturer). The tender was issued on 30th November 2011 for supply of injections and sera vaccines to municipal hospitals. The petitioners contended that respondent no.3 was not qualified because the Performance Certificate submitted was not in the prescribed proforma, which they argued was a mandatory condition. The court examined the tender documents and found that while a proforma was provided, the condition did not explicitly state that non-compliance would lead to disqualification. The court noted that respondent no.3 had submitted a certificate from a previous purchaser confirming supply of 1,00,000 doses, which satisfied the essential requirement of past experience. The court held that the condition regarding the proforma was directory, not mandatory, as the purpose was to ensure the bidder had relevant experience, which was demonstrated. The court also considered the public interest in ensuring uninterrupted supply of life-saving vaccines to municipal hospitals. The petition was dismissed, upholding the contract award to respondent no.3.
Headnote
A) Tender Law - Mandatory vs. Directory Conditions - Performance Certificate Proforma - The condition requiring Performance Certificate in a prescribed proforma is not mandatory but directory, as the essential information regarding past supply was provided and the tender was for supply of life-saving vaccines to municipal hospitals. The Court held that strict compliance with proforma is not required where the substance of the condition is met and public interest in timely supply of vaccines outweighs technical non-compliance. (Paras 3-10) B) Tender Law - Substantial Compliance - Public Interest - The Court held that where a tender condition is not essential to the eligibility of the bidder and the bidder has substantially complied by providing necessary details, the condition is directory. The award of contract to respondent no.3 was upheld in the interest of public health, as the vaccine supply was urgently needed. (Paras 11-15)
Issue of Consideration
Whether the Performance Certificate submitted by respondent no.3, not in the prescribed proforma, is a mandatory condition of the tender, and whether the contract awarded to them is valid.
Final Decision
The petition is dismissed. The contract awarded to respondent no.3 is upheld.
Law Points
- Tender law
- Mandatory vs. directory conditions
- Performance certificate proforma
- Substantial compliance
- Public interest in health
