Bombay High Court: In the present case, challenge was made to a tender dated 4-1-2024 issued by the Commissioner, Health Service and Mission Director, National Health Mission, Mumbai (‘the Commissioner’) for design, build, finance, operate, and transfer (PPP-DBFOT Hybrid Model) Maharashtra Emergency Medical Services (MEMS) Project 2024 (‘the subject tender’). The challenge was even made to the Government Resolution dated 15-3-2024 issued by the Secretary, Public Health Department, State of Maharashtra, and a direction was sought to conduct a full-fledged inquiry, regarding the illegal transactions leading to the subject tender and the subsequent transactions which led to Government Resolution dated 15-3-2024. Further, a direction was sought to issue guidelines for award of Maharashtra Emergency Medical Services (MEMS) project and to lay down standard guidelines pertaining to supply of manpower.
The Division Bench of Alok Aradhe*, C.J., and M.S. Karnik, JJ., opined that the entire tender process adopted was fair, transparent, and reasonable and could not be termed as arbitrary, irrational, or mala fide. The Court dismissed the petition and opined that the subject tender was to provide emergency medical services with ambulances across the State of Maharashtra and the said project, being in the public interest, must progress without interruption and the Court’s intervention should be minimal.
Background
In 2011, the Government of Maharashtra, with intent to launch MEMS project with 937 life support ambulances (Advance Life Support-235 & Basic Life Support-702) on Turnkey basis, floated a tender to develop and operate Emergency Response Service/Ambulance Service for providing an emergency response ambulance service. Thereafter, BVG India Ltd. was awarded the contract for a period from 1-2-2014 to 31-1-2019 and was extended from 1-2-2019 to 31-1-2024. On 3-4-2023, the Commissioner sent a proposal to the Public Health Department seeking approval for procurement of different types of ambulances along with medical equipments and information technological hardware/software to upgrade the existing infrastructure.
The State of Maharashtra needed 1529 ambulances and an expert committee for Bio-Medical Equipment Specifications, was formed and the said committee laid specifications of Type C Basic Life Support (BLS) Ambulances, Two-Wheeler Scooters which needed to be upgraded and procured for new MEMS tender. Another expert committee was constituted for information technology specifications of hardware and software for the new MEMS project. The tender committee drafted and finalized the request for proposal document and the Cabinet, in its meeting held on 21-7-2023, decided to conduct and operate MEMS a new service provider would be appointed for 10 years on public private partnership (PPP) basis and financial and technical approval was accorded.
The State Government, on 4-8-2023 issued a Government Resolution approving an annual expenditure of Rs 759,56,51,190 for around 1786 life support ambulances and laid down terms and conditions to be followed with the help of officers of Public Health Department. The tender document was uploaded on Maharashtra e-portal website inviting bids for MEMS services. The validity of tender was till 28-12-2023 and on account of software used by the web portal, the tender disappeared from MAHATENDER web portal on 28-12-2023. The Commissioner thus issued a fresh tender i.e., the impugned tender while incorporating all the corrigendums and therefore, no provision for pre-bid meeting was envisaged.
A consortium, comprising of Sumeet Facilities Ltd., BVG India Ltd. and SSG Transporte Sanitario submitted its bid and the competent authority, issued an administrative approval. Thus, the contract was awarded to the consortium on 15-3-2024. The consortium viz. Sumeet SSG BVG Maharashtra EMS Pvt. Ltd. filed a writ petition seeking directions to Respondents 1 to 4 to forthwith execute the concessionaire agreement with the consortium in terms of Letter of Allotment dated 15-3-2024.
Analysis, Law, and Decision
The Court relied on Siemens Aktiengeselischaft & Siemens Ltd. v. DMRC Ltd., (2014) 11 SCC 288, wherein the Supreme Court held that the tenders floated by the Government were amenable to judicial review only to prevent arbitrariness and favoritism and protect the financial interest of the State and public interest. Thus, the scope of judicial review was confined as to whether there was any illegality, irrationality, or procedural impropriety committed by the decision-making authority. The Court also relied on Centre for Public Interest Litigation v. Union of India, (2016) 6 SCC 408, wherein it was held that minimal interference was called for by Courts in exercise of judicial review of a decision taken by the technical experts after due deliberations inasmuch as the Courts were not well equipped to fathom into such domain which was left to the discretion of the executive.
The Court opined that it was evident that the entire tender process was extended over a period of nearly one year and was considered at various levels by the expert committees and the tender committee and the prospective bidders participated in the pre-bid meeting and based on the inputs, necessary changes were made in the bid terms. The Court noted that no challenge to the tender process was made by any private party. Thus, the Court opined that the entire tender process adopted was fair, transparent, and reasonable and could not be termed as arbitrary, irrational, or mala fide.
The Court in relation to the involvement of Sumeet Facilities Ltd. in the tender process, it was noted that the MoU dated 16-1-2023 was executed between the State of Maharashtra and Sumeet Facilities Ltd. and one OST Inc (USA) on 16-1-2023 for techno feasibility study on integrated emergency services communication service project. The Court stated that there was no material on record to indicate the involvement of Sumeet Facilities Ltd. in the subject tender except the purported forensic audit. Thus, a conclusion could be drawn that Sumeet Facilities Ltd. did not participate in any manner in the preparation and design of the subject tender.
The Court took note of the submission that forensic audit was pending against BVG India Ltd. and therefore, the consortium of which BVG was a member, ought not to have been awarded the contract. The Court stated that the State Government was yet to conclude the forensic audit and merely based on the pendency of forensic audit, BVG India Ltd. could not be prevented from participating in the tender. The Court opined that the decision to award the contract to the consortium of which BVG India Ltd. was a member, did not suffer from any infirmity.
The Court in relation to the issue regarding the increase of 87% in the number of ambulances (1756) as opposed to the rise in population (14% to 15%), opined that the State Government was required to follow the guidelines laid down by National Health Mission Conditionalities Framework 2022-2024 and increase the number of ambulances as per the population norms.
The Court opined that the subject tender was to provide emergency medical services with a fleet of 937 ambulances across the State of Maharashtra, which was in public interest. The project, in the public interest, must progress without interruption and thus, the intervention of the Court in such cases should be minimal. Thus, the Court dismissed the petition and held that no interference was needed in the present petition, and it was open for the State Government to take an appropriate decision about the execution of the concessionaire agreement with the consortium.
[Contract for Emergency Medical Services v. State of Maharashtra, Public Interest Litigation No. 62 of 2024, decided on 8-4-2025]
*Judgment authored by: Chief Justice Alok Aradhe
Advocates who appeared in this case :
Amicus Curiae: Vyankatesh Dhond, Senior Advocate
For the Respondents: Ravi Kadam, Senior Advocate with Seoul Shah, Chinmay Patil and Siddharth Chavde for the Petitioner in WP/13113/2024 and for Respondent 7 in PIL No. 62/24; Birendra Saraf. Advocate General with Neha S. Bhide, Govt. Pleader with O.A. Chandurkar, Additional Government Pleader with Kushal Amin, ‘B’ Panel Counsel with G.R. Raghuwanshi, AGP for Respondents 1 to 4 in WP/PIL Ashutosh A. Kumbhakoni, Senior Advocate with Ashutosh M. Kulkarni i/b. Sarthak S. Diwan for Respondent 6 in PIL
