Neutral Citation No. - 2025:AHC:50725-DB Court No. - 29 Case :- WRIT - C No. - 10128 of 2025 Petitioner :- M/S Mbs India Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Pratik Chandra Counsel for Respondent :- A.S.G.I.,C.S.C.,Rohit Pandey Hon'ble Ashwani Kumar Mishra,J. Hon'ble Donadi Ramesh,J. Petitioner is aggrieved by rejection of its bid for award of contract to supply ICU Ventilator to the respondent- University. Bids were invited by the respondent- University on Gem Portal on 18.02.2025. The conditions of bid are specified in the tender document. One of the conditions required in the bid document is that the supplier must have U.S. FDA and European CE approved by four digit notified body and must be certified by ISO. Clause- 10 of the tender document requiring such eligibility is reproduced hereinafter:- "10. Should be US FDA and European CE approved by four digit notified body and ISO certified." The petitioner submitted its bid but has been technically disqualified for not possessing such technical qualification. The basis of petitioner's challenge to the impugned action is a office memorandum issued by the Ministry of Health and Family Welfare dated 20.02.2018, which is reproduced hereinafter:- "Subject: Guidelines regarding requirement/ non-requirement of USFDA/ CE certification, etc. in procurement of medical devices-Reg. The undersigned is directed to refer to the D.O. letter No.X.11035/379/2015- DFQC dated 18.07.2016 issued to the authorities as per the list attached (copy enclosed), written by Shri K.B. Agarwal, former Additional Secretary, Department of Health and Family Welfare on the subject mentioned above. 2. All the Hospitals/ Health Institutes/ Organizations under Department of Health and Family Welfare are requested to ensure that in all cases of procurement of medical devices/ medical equipment, the following shall be complied with: (I) Medical devices/ equipment where Indian standards are available: Wherever the Indian standards are available, these would be sufficient and the indenting organization shall not insist on any specification or standards like USFDA or CE certification etc. (II) Medical devices/ equipment where Indian standards are not available: In order to ensure quality of the devices/ equipment being purchased, the indenting organization would be free to lay down the standards of ISO or USFDA or CE certification, in such cases. Encl: A/a (D.N Sahoo) Deputy Secretary to the Govt. of India Telefax: 23061656" A separate office memorandum to similar effect is also relied upon. Learned counsel for the petitioner submits that at the time of submission of bid an objection was taken by it to the requirement specified in the tender of possessing certificates in terms of tender clause, in view of the circular issued by the Central Government which has laid down a different criteria. It is submitted that by virtue of the office memorandum dated 20.02.2018 it is not necessary for the petitioner to possess all certificates. It is urged that petitioner has the European CE approval and is also ISO certified and therefore, non-possessing of U.S. FDA certificate cannot be a ground to deny award of contract to the petitioner. Learned counsel for the respondents, however, submits that the tender conditions are specific and there was no challenge to it laid by the petitioner while submitting the bids. Mere making of a representation would not suffice. It is submitted that the employer would have the right to insist upon higher requirements also and it is not necessary that the office memorandum of Central Government is necessarily made the basis for evaluation of contract. Shri Rohit Pandey, learned counsel for the respondent-University states that Clause-10 of the conditions of the tender has been uniformly applied and bids have been awarded to respondent no.5 which possess all the certificates as are mentioned in the tender document. It is submitted that since the orders have now been placed in favour of the fifth-respondent, therefore, no interference in the writ petition would be called for. We have heard learned counsel for the parties and perused the materials placed on record. It is undisputed that the conditions of tender specify that the intending bidder must have U.S. FDA and European CE approved vendor and must have ISO certification. It is undisputed that all such conditions are not met by the petitioner. The question as to whether such condition could have been insisted upon in view of the office memorandum of the Central Government need not necessary detain us in view of settled proposition of law that the employer can always fix higher standards as eligibility for award of contract. It is undisputed that such higher conditions have been uniformly made applicable upon all bidders and undisputedly the fifth-respondent possess all such certificates. The tender conditions otherwise were not challenged and mere making of a representation later would not suffice. In such circumstances, we find no illegality in the decision of the respondent- University in holding the petitioner to be technically disqualified or to award contract in favour of the fifth-respondent. The argument that office memorandum is binding on all organizations including the University would not be a valid argument to object fixation of higher criteria by the University for the award of contract, accordingly, the writ petition is dismissed. Order Date :- 8.4.2025 A Gautam Digitally signed by :- ADITYA GAUTAM High Court of Judicature at Allahabad