Holding

The Supreme Court held that the tender opening violated CVC guidelines, Nirlac was not technically qualified as it failed condition ‘j’, and therefore the award to Bionet was set aside, with Haffkine restrained from further purchases from Bionet and directed to procure from Nirlac and to conduct a fresh e‑tender.

Summary

Haffkine Bio‑Pharmaceutical Corporation Ltd., a Maharashtra government undertaking, issued a tender for bulk polio vaccine drugs which was awarded to Bionet despite the technical bid of Nirlac not being opened in the presence of its representatives, violating Central Vigilance Commission (CVC) guidelines. The High Court set aside the award and allowed Haffkine to continue purchasing from Bionet pending a fresh tender, but the Supreme Court found the tender opening process vitiated and held that Nirlac did not satisfy condition ‘j’ requiring generation of business for 70 million doses, rendering its bid technically unqualified. Consequently, the award to Bionet was deemed improper, Haffkine was restrained from further purchases from Bionet, and directed to procure the pending 120 million doses from Nirlac at its quoted price. The Court also ordered Haffkine to float a new e‑tender with clear terms and to ensure any buy‑back clause is expressly stated. The appeals were disposed of in accordance with these directions.

Issues considered

Whether non‑compliance with CVC guidelines on tender opening vitiates the entire tender process.
Whether the unsuccessful bidder Nirlac satisfied all technical conditions, particularly condition ‘j’ concerning generation of business for 70 million doses.
Whether the High Court erred in setting aside the award and permitting continued procurement from the successful bidder pending a fresh tender.
What appropriate relief should be granted to rectify the procurement process.

Subjects

tenderCentral Vigilance Commission guidelinestechnical qualificationbid openinge‑tenderpublic procurementcontract awardrestoration of justicegovernment undertaking

Judgment

[2017] 8 S.C.R. 450

A HAFFKINE BIO-PHARMACEUTICAL CORPORATION LTD.,
A GOVERNMENT OF MAHARASHTRA UNDERTAKING
THROUGH MANAGER
v.
MIS. NIRLAC CHEMICALS THROUGH ITS MANAGER &
B ORS.
(Civil Appeal No. 9836 of 2017)
JULY27,2017
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.J
c Tender:
Validity of tender - Challenged by unsuccessful bidder - On
the ground that technical-cum-commercial bid was not opened in
the presence of its representatives - High Court set aside the award
of tender - On appeal, held: Opening of the the tender of the
D successful bidder in absence of the challenging bidder, is in violation
of Central Vigilance Commission Guidelines - However, since the
unsuccessful bidder did not fulfill all the tender conditions, its tender
was also not technically qualified - Jn the interest of justice, the
tendering company is restrained from purchasing any further, from
E the successful bidder and is further directed to place order with the
unsuccessful bidder in respect of the pending orders - The tendering
company is permitted to float fresh tender as e-tender with clear
and unambiguous terms and conditions - Contract.
Disposing of the appeals, the Court
F HELD: 1. A bare reading of the Central Vigilance
Commission (CVC) guidelines clearly shows that the tender must
be opened in the presence of the bidders or representatives of
the bidders who are present at the time when the bid is opened.
The High Court, after going through the entire record, came to
G the conclusion that the bid of the successful bidder had not been
opened in the presence of the representatives of unsuccessful
bidder. In fact, this was admitted by the appellant before the
High Court. Even before this Court, no record could be produced
to show that the bid of the successful bidder was opened in the
presence of the representatives of the unsuccessful bidder. In
H
450
HAFFKINE BIO-PHARMACEUTICAL CORP. LTQ. v. NIRLAC 451
CHEMICALS THR ITS MANAGER ·

this view of the matter, the entire tender opening process is ·A
vitiated since the CVC guidelines have not been followed. [Paras
9, 10)[457-B-C, Er
2. Opening of the tender without showing the documents
is also meaningless. When. a technical bid is .opened, it is the
right of the rival bidders to see whether the documents attached B
by a bidder meet the technical requirements or liot. This can
only .be done if the documents attached to the bid are shown to
the other side. [Para 10)(457-FJ'
3. The case of the unsuccessful bidder is that till 22.06.2016
they were not aware of the rejection of their bid. This assertion c
is patently false. The comparative analysis chart prepared by the
appellant was admittedly shown to the representatives of the
unsuccessful bidder on the evening of 12.02.2016 itself. This is
also apparent from the facts that on 12.02.2016, the unsuccessful
bidder sent a letter to the tendering Company protesting against
the rejection of their bid. In this letter they have mentioned that D
at about 5.45 p,m., a comparative analysis sheet was shown to
the representatives ·of the unsuccessful bidder. They have listed
out several conditions of the tender bid. With regard to 7 points,
they have objected that they bad given all the requisite information
and their bid had been wrongly rejected. They have given detailed E
reasons for the same; Therefore,. it cannot be said that the
unsuccessful bidder was not aware of the fact that their bid had
not been found to be technically qualified. [Para 11)1457-G-H;
458-F-G)
4. It is not correct to say that the unsuccessful bidder should F
be compensated for the loss suffered by it. A party can only claim
restitution when its bid is technically qualified and wrongly
rejected. The High Court erred in holding that the unsuccessful
bidder satisfied all the tender conditions. Condition 'j' of the
Tender Notice clearly postulates that the bidder should be able
to generate business for the tendering Company for sale of G
minimum 70 million doses. It may be correct that there is no
mention of any buy back arrangement but it is apparent that the ·
tendering Company wanted that the person supplying the bulk
drug should also generate business for sale of 70 million doses
H
452 SUPREME COURT REPORTS [2017] 8 S.C.R.

A of the finished product. This is the only interpretation which can
be given to condition 'j'. Since the unsuccessful bidder did not
fulfil this condition, its tender was not found to be technically
qualified. It is for the party issuing a tender to decide what
conditions should be incorporated in the tender. The party floating
B a· tender is the best judge of its own requirements and there is
nothing wrong if the tendering Company wanted that the
successful tenderer, who supplied the raw material, should take
responsibility to sell or generate business for sale of some portion
of the finished product. The tender was wrongly awarded to the
successful bidder. However, the tender could not have been
C awarded to the unsuccessful bidder and as such, there is no merit
in the appeal of the unsuccessful bidder. [Paras 12, 14, 16 and
181[459-C, G-H; 460-A-B, E-F, H; 461-AI
5. The tendering Company has stated that it was to procure
bulk drug from the successful bidder to produce 600 million doses.
D Supplies have been made for about 540 million doses. It has orders
for about 53 million doses of finished vaccines. As per the contract
entered into between the tendering Company and the successful
bidder, the latter was to buy back 70 million doses out of which 4
million doses have already been supplied to them. A confirmed
E order has been placed for supply of remaining 66 million doses.
Therefore, the total number of doses for which orders are pending
with the tendering Company, amount to 119 million doses, which
can be rounded off to 120 million doses. The interest of justice
will be met if the bulk supply of drugs including Monovalent Bulk
of Poliomyelitis Type 1 (Oral) Sabin Strain and Monovalent Bulk
F of Poliomyelitis Type 3 (Oral) Sabin Strain is made by the
unsuccessful bidder, as per the price quoted by it for the
manufacture of 120 million doses of oral polio vaccine. Therefore,
the tendering Company is directed to place sufficient quantity of
order for supply of bulk supply of drugs including Monovalent
G Bulk of Poliomyelitis Type 1 (Oral) Sabin Strain and Monovalent
Bulk of Poliomyelitis Type 3 (Oral) Sabin Strain for manufacture
of 120 million doses on the aforesaid terms. The tendering
Company is restrained from purchasing any further bulk drug
from the successful bidder, pursuant to the contract in dispute.
It is also directed that the tendering Company must supply and
H
HAFFKINE BIO-PHARMACEUTICAL CORP. LTD. v. NIRLAC 453
CHEMICALS THR ITS MANAGER

the successful bidder must purchase 66 million doses of oral A
vaccine as per the confirmed order. [Paras 19, 20)[461-C-GI

6. The High Court erred in directing that the fresh tender
should be floated by the Government of Maharashtra. The
tendering Company may be a Government of Maharashtra
undertaking but it is a. separate entity. The tendering Company B
is therefore permitted to float fresh tender for supply of bulk
drugs including Monovalent Bulk of Poliomyelitis Type 1 (Oral)
Sabin Strain and Monovalent Bulk of Poliomyelitis Type 3 (Oral)
Sabin Strain. However, it is made clear that the tender to be now
floated, should be floated as e-tender to avoid any allegations of C
the type made in the appeals. The terms of the tender should be
clear and unambiguous setting out the period of tender and
approximate qu'antities of both drugs required. If the tendering
Company wants any buy back or business generation clause, it
must clearly mention the rate at which finished product, i.e. the
oral polio vaccine must be purchased by the successful tenderer D
from the tendering Company. (Para 21)(461-G-H; 462-A-B(

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9836
of2017.

From the Judgment and Order dated 07.10.2016 of the High Court· E
of Judicature at Bombay in Writ Petition No. 1911 of2016

WITH

C.A. Nos. 9839 and 9875 of2017.

Gaurab Banerji, Harin P. Raval, Sr. Advs., Nitin S. Tambwekar, F
Seshatalpa Sai Bandaru, Sahil Tagotra, Ms. Neha Sangwan, Devansh
A. Mohta, Sanjay Kumar Visen, A. P. Arora, Ms. Kamini Jaiswal, Advs.
for the Appellant.

Dushyant Dave, Sr. Adv., Prashant Bhushan, Ms. Kanmini Jaiswal,
Rohit Kr. Singh, Harshil Parekh, Advs. for the Respondents. G

The Judgment of the Court was delivered by
DEEPAK GUPTA, J. 1. Delay condoned in Special Leave
Petition (C) .... CC No(s).9316 of2017 ..
H
454 SUPREME COURT REPORTS [2017] 8 S.C.R.

A 2. Leave granted.
3. All the appeals are being disposed of by this common judgment.
4. Mis. Haffkine Bio-Pharmaceutical Corporation Ltd.
(hereinafter referred to as "Haffkine") is a Government of Maharashtra
undertaking. It is engaged in the business of manufacture of vaccines
B and other pharmaceuticals and biological products. One of the main
businesses of Haffkine is the manufacture of polio vaccines. It is the
admitted case of the parties that oral polio vaccine is manufactured by
formulation of various bulk drugs including Monovalent Bulk of
Poliomyelitis Type I (Oral) Sabin Strain and Monovalent Bulk of
c Poliomyelitis Type 3 (Oral) Sabin Strain respectively. These drugs are
combined and formulated along with other materials by Haffkine and
oral polio vaccine is prepared. Mis. Haffkine issued a tender notice on
20.01.2016, for supply of bulk drugs including Monovalent Bulk of
Poliomyelitis Type I (Oral) Sabin Strain and Monovalent Bulk of
Poliomyelitis Type 3 (Oral) Sabin Strain. The bids were to be submitted
D in two parts. The first part was the techno-commercial bid and the
second part was price bid. The techno-commercial bid was to be opened
on 10.02.2016 at 4.30 p.m. and the date for opening of the price bid was
to be fixed thereafter. It is pertinent to mention that the tender provided
that the polio bulk drug should be manufactured by Mis. P. T. Biofarma,
E Indonesia, a World Health Organisation (WHO) prequalified bulk
manufacturer, for the supply of Bivalent Oral Polio Vaccine Bulk (bOPV).
5. Mis. Nirlac Chemicals (hereinafter referred to as 'Nirlac') is a
registered partnership firm, which is an Indian partner ofM/s. Universal
Exim FZE, an enterprise organised and existing under the laws of United
F Arab Emirates (UAE). This firm had been supplying the bulk drugs to
Haffkine as a distributer ofMJs. P.T. Biofarma, Indonesia for the last 15
years. On 25.01.2016, Nirlac sent a letter to Haffkine protesting against
the issuance of tender. However, they took part in the tender. The date
of opening of tender was changed to 12.02.2016.

G
On 12.02.2016, the representatives ofHaffkine were present in
the office ofHaffkine and according to Nirlac though the bid of Universal
Exim FZE represented by Nirlac was opened, the meeting was adjourned
after lunch without opening the tender of M/s. Bionet Asia Co. Ltd.,
Thailand (for short 'Bionet'). According to Nirlac, the tender ofBionet

H
HAFFKINE BIO-PHARMACEUTICAL CORP. LTD. v. NIRLAC 455
CHEMICALSTHR ITS MANAGER [DEEPAK GUPTA, J.]

was not opened in their presence. However, later in the evening, they A ·
were shown a comparative chart of analysis wh~rein it was mentioned
that the bid of Nirlac had not been found to be technic11Ily qualified.
Nirlac immediately sent objections on the same day and one of the main
grounds taken was that the bid of Bionet had not been ope~ed in their
presence. It was also complained that the tender conditions had been B
tailor-made to suit the requirements of Bionet. Nirlac also sent two
other representations to the Minister ofFood, Civil Supplies, Consumer
Protection, Food and Drug Administration, Government of Maharashtra.
According to Nirlac, they were informed about the rejection of their bid
only on 22.06.2016 and thereafter they filed writ petition in the High
Court ofBombay challenging the rejection of their bid and the aw~rd of C
the tender in favour ofBionet.
6. The main ground raised was thatthe Central Vigilance
Commission ('CVC' for short} guidelines had been violated in as much
as the tender of Bionet was not opened in the presence ·of the .•
representatives ofNirlac who were present. The High Court allowed .I)
the writ petition. It not only held that Haffkine had violated the CVC
guidelines but also came to the conclusion that Nirlac complied with all
the tender conditions and, therefore, the tender ofNirlac had been wrongly
rejected. The tender dated 20.01.2016 was quashed, letter dated
22.06.2016 was also quashed and the contract/tender awarded in favour
of Bionet was set aside. However, since the procurement of the bulk E
drug was necessary in public interest, the High Court permitted Haffkine
to purchase the bulk drug from Bionet till a fresh tender was finalised.
The State Government, through the Department cifPublic Health, was '
directed to float a fresh tender within a period of eight weeks. ·
7. Aggrieved by this judgment, Haffkine arid Bionet have filed F .
petitions challenging the setting aside of the tender issued by Haffkine
as also setting aside of the contract entered into by Haffkine ih favour of·
Bionet. Nirlac has also filed an appeal in which they have claimed that
since they were found eligible, the tender should have been awarded to
Nirlac instead of directing that a fresh tender be floated. G
8. We have heard learned senior counsel/learned counsel for the
parties. At the outset, it rnay be mentioned that it has not been disputed
before us that the CVC guidelines are applicable. We may refer to the

H
456 SUPREME COURT REPORTS [2017] 8 S.C.R.

A relevant CVC guidelines referred to by the High Court which read as
follows:
"12.l In some organisations, the tenders are not opened in the
presence of the bidders' representatives on the plea of maintaining
absolute secrecy. Such a practice of not opening tenders in public
B and of not disclosing the rates quoted by all bidders to other firms
is against the sanctity of the tendering system, and is a non-
transparent method of handling tenders. The possibility of
tampering and interpolation of offers, after opening of tenders, in
such cases cannot be ruled out. Some organisations do not even
maintain tender opening registers. The rates at times are not
c quoted both in figures and words, cuttings/overwritings are not
attested by bidders.
The opening of tenders in presence of the bidders'
representatives needs to be scrupulously followed. While opening
the tenders it needs to be ensured that each page of tender,
D particularly the price and important terms and conditions should
be encircled and initialled with the date. Any cutting/overwriting
should be encircled and initialled in red ink by the tender opening
officer/committee. The tender opening officer/committee should
also prepare an 'on the spot statement' giving details of the
E quotations received and other particulars like the prices, taxes/
duties, EMD, any rebates etc. as read out during the opening of
tenders. A proper tender opening register in a printed format
should be maintained containing information viz. date of opening
including extensions, if any, names and signatures of all the persons
present to witness the tender opening which should include the
F bidders representatives also.
12.2 In cases involving the two bid system, it has been noticed
that after opening of the technical bids, the price bids, which are
to be opened subsequently, are kept as loose envelopes. In such
cases, the possibility of tampering of bids prior to tender opening
G cannot be ruled out.
In order to make the system fool-proof, it needs to be ensured
that the tender opening officer/committee should sign on the
envelope containing the price bids and the due date of opening of

H
HAFFKINE BIO-PHARMACEUTICAL CORP. LTD. v. NIRLAC 457
CHEMICALS THR ITS MANAGER [DEEPAK GUPTA, J.]

price bids should be clearly mentioned on the envelopes and should A
again be placed in the tender box."
9. A bare reading of these guidelines clearly shows that the tender
must be opened in the presence of the bidders or representatives of the
bidders who are present at the time when the bid is opened. Shri Gourab
Banerji, learned senior counsel appearing for Haftkine urged that, in B
fact, the bid ofBionet was opened in the presence of the representatives
ofNirlac. According to him, the documents attached with the bid were
not shown but only the bid was shown. The High Court, after going
through the entire record, came to the conclusion that the bid of Bionet
had not been opened in the presence of the representatives ofNirlac. In ·
fact, this was admitted by Haffkine before the High Court. In the C
impugned judgment, the High Court has recorded:
"Be that as it may, at about 1.00 p.m. (on 12'h February, 2016) the
Petitioners' techno-commercial bid was opened and the Petitioners
were informed that they would have to return after the lunch
break. What is important to note and which fact is now admitted D
before us, is that the bid submitted by Respondent No.3 was not
opened by Respondent No. 1 in the presence of the Petitioners
and the Petitioners were asked to return after the lunch break
without opening the tender of Respondent No. 3."
10. Even before us no record could be produced to show that the E
bid ofBionet was opened in the presence of the representatives ofNirlac.
In this view of the matter, we are clearly of the opinion that the entire
tender opening process is vitiated since the eve guidelines have not
been followed. We may also add that opening of the tender without
showing the documents is also meaningless. When a technical bid is F
opened, it is the right of the rival bidders to see whether the documents.
attached by a bidder meet the technical requiremi;;.nts or not. This can
only be done ifthe documents attached to the bid are.shown to the other
side. According to us, the violation ofCVC guidelines is itself sufficient
to vitiate the entire tender process. We, therefore, find no merit in the
appeals filed by Haffkine and Bionet. G
11. Now we come to the appeal ofNirlac. The case ofNirlac is
that till 22.06.2016 they were not aware of the rejection of their bid.
This assertion is patently false. The High Court has, on perusal of the

H
l; ..
-
458 · ·· SUPREME COURT REPORTS··
...
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.· c20111 s s.c.~.:
I
l
j
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I
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l
1
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This chart was admittedly shoWn to the representatives ofNirlac
on the evening of 12.02.201 Gitself. This is also apparent from the facts
F that on 12.02.2016, Nirlac sent a letter to Haffkine protesting again5tthe
rejection of their bid. In this letter they have mentioned that at about·
5.45 p.m:·, a comparative analysis sheet was shown to the representatives
of Nirlac. They have listed out several conditions of the tender bid.
With regard to 7 points, they have objected that they had given all the
requisite information and their bid had been wrongly rejected. They
G have given detaiied reasons for the same. Therefore, it cannot be said
that Nirlac was not aware of the fact that their bid had not been found to
be technically qualified. Nirlac sent letter dated 16.02.2016 to the Minister
of Food and Civil Supply, Government of Maharashtra, followed by
another letter dated 24.02.2016. Thereafter, Nirlac kept silent till letter
•
H
't
HAFFKINE BIO-PHARMACEUTICAL CORP. LTD. v. NIRLAC 459
CHEMICALS THR ITS MANAGER [DEEPAK GUPTA, J.]

dated 22.06.2016 was issued whereby a communication was sent to A
them that their bid was found to be technically deficient and then they
filed writ petition. It may be true that Haffkine was remiss in not replying
to the letter dated 12.02.2016 but Nirlac never followed up after
24.02.2016. They raised the matter only with the Minister but did not
deem it fit to approach the Court.
B
12. Mr. Dushyant Dave, learned senior counsel and Mr. Prashant
Bhushan, learned counsel, appearing for Nirlac have urged tliat entire
process of tender by Haffkine was fraudulent and Nirlac should be
compensated for the loss suffered by it. Aparty can only claim restitution
when its bid is technically qualified and wrongly rejected. According to C
us, the High Court erred in holding that Nirlac satisfied all the tender
conditions; We need not go into the other aspects in detail but we may
refer fo condition 'j' of the tender notice. The same is reproduced as
follows:
"j) Should also be able to generate business for the Corporation,
minimum 70 million doses." D
13. It has been submitted by Nirlac that clause 'j' is meaningless
an_d this clause does not contemplate any buy back agreement. As far
as this clause is co·ncemed Nirlac in their tender have mentioned as
follows:
E
j) Should also be .We can supplybOPVBulk
able to generate quantity 70 million doses as
business for the required in the tender
Corporation documents, however same
minimum 70 can be increased subject to
million doses. availability of stocks at the F
time ofreceipt of your
additional rea uirements.

14. According to Nirlac, condition 'j' could only mean that sufficient G
bulk quantity of oral vaccine should be supplied for manufacture of 70
million doses of oral polio vaccine. The High Court has accepted this
submission. We are clearly of the view that this is not the correct
interpretation of condition 'j '. This condition clearly postulates that the
bidder should be able to generate business for Haffkine for sale of
H
460 SUPREME COURT REPORTS [2017] 8 S.C.R.

A minimum 70 million doses. It may be correct that there is no mention of
any buy back arrangement but it is apparent that Haftkine wanted that
the person supplying the bulk drug should also generate business for sale
of70 million doses of the finished product. This is the only interpretation
which can be given to condition 'j '. Here we may refer to the letter
sent by Nirlac on 12.02.2016 itself wherein with respect to this condition
B
it has mentioned as follows:
"6) Supply of minimum 70 million doses: Please refer to page No.
2 of covering letter point U) under which we have agreed to supply
70 million doses ofbOPV Bulk as per your tender requirement
which can be increased at the time of receipt of your additional
c requirements subject to availability of stocks with us. However,
we have not commented on generating business for the corporation
of minimum 70 million doses as the same is not related to the
supply ofbOPV Bulk Type 1 and Type 3 for the current Tender."
15. It is clear that they understood that the business had to be
D generated but according to them, the said condition was not related to
the supply of bulk drug.
16. It has been urged by Mr. Banerji, learned senior counsel that
Haffkine has about 550 employees and at the time of floating of tender
it had virtually no orders. Therefore, it wanted that the bulk supplier
E should be able to give some commitment with regard to repurchase of
the finished products, that is, oral polio vaccine. Therefore, this condition
was incorporated and since Nirlac did not fulfil this condition, its tender
was not found to be technically qualified. We find merit in this submission.
It is for the party issuing a tender to decide what conditions should be
F incorporated in the tender. The party floating a tender is the best judge
of its own requirements and there is nothing wrong if Haftkine wanted
that the successful tenderer, who supplied the raw material, should take
responsibility to sell or generate business for sale of some portion of the
finished product.

G
17. We may add that many other allegations and counter allegations
have been made but we do not want to enter into those because, according
to us, the issuance of tender stood vitiated due to violation of the eve
guidelines and Nirlac was not qualified because it did not even satisfy
condition 'j'.
18. From the above discussion it is obvious that the tender was
H
HAFFKINE BIO-PHARMACEUTICAL CORP. LTD. v. NIRLAC 461
CHEMICALS THR ITS MANAGER [DEEPAK G)JPTA, J.]

wrongly awarded to Bionet. However, we are clearly of the view that A
the tender could not have been awarded to Nirlac and as such, we find
no merit in the appeal ofNirlac.
19. At the same time, we feel that the manner in which the tender
has been awarded by Haffkine in favour of Bionet was not proper and
therefore, we must mould the relief accordingly. Bulk polio drug is required B
to manufacture polio vaccine, which is essential for the health of the
children. It is for this reason that the High Court permitted Haffkine to
take supplies from Bionet till fresh tender is awarded. Before us Haffkine
has stated that it was to procure bulk drug from Bionet to produce 600
million doses. Supplies have been made for about 540 million doses. C
According to the affidavit filed by Haffkine, it has orders for about 53
million doses of finished vaccines. As per the contract entered into
between Haffkine and Bionet, Bionet was to buy back 70 million doses
out of which 4 million doses have already been supplied to them. Mr.
Harin P. Raval, learned senior counsel appearing for Bionet stated before
us that a confirmed order has been placed for supply of remaining 66 D
million doses. Therefore, the total number of doses for which orders are
pending with Haffkine amount to 119 million doses, which can be rounded
off to 120 million doses.
20. We feel that the interest of justice will be met if the bulk
supply of drugs including Monovalent Bulk of Poliomyelitis Type 1 (Oral) E
Sabin Strain and Monovalent Bulk of Poliomyelitis Type 3 (Oral) Sabin
Strain is made by Nirlac as per the prict: quoted by Nirlac for the
manufacture of 120 million doses of oral polio vaccine. Therefore,
Haffkine is directed to place. sufficient quantity of order for supply of
bulk SUP,ply of drugs including Monovalent Bulk ofPoliomyelitis Type l
(Oral) Sabin Strain and Monovalent Bulk of Poliomyelitis Type 3 (Oral) F
Sabin Strain for manufacture of 120 million doses on the aforesaid terms.
Haffkine is restrained from purchasing any further bulk drug from Bionet
pursuant to the contract in dispute. It is also directed that Haffkine must
supply and Bionet must purchase 66 million doses Of oral vaccine as per
the confirmed order. G
21. We are of the view that the High Court erred in directing that
the fresh tender should be floated by the Government of Maharashtra.
Haffkine may be aGovernment .of Maharashtra undertaking but it is a
separate entity. Haffkine is therefore permitted to float fresh tender for
supply of bulk drugs including Monovalent Bulk ofPoliomyelitis Type l H
462 SUPREME COURT REPORTS [2017] 8 S.C.R.

A (Oral) Sabin Strain and Monovalent Bulk of Poliomyelitis Type 3 (Oral)
Sabin Strain. However, it is made clear that the tender to be now floated,
should be floated as e-tender to avoid any allegations of the type made
in the appeals. We, further direct that the terms of the tender should be
clear and unambiguous setting out the period of tender and approximate
B quantities of both drugs required. If Haffkine wants any buy back or
business generation clause, it must clearly mention the rate at which
finished product, i.e. the oral polio vaccine must be purchased by the
successful tenderer from Haffkine.
The appeals are disposed of in the aforesaid terms. Pending
C application(s), ifany, also stand(s) disposed of.

Kalpana K. Tripathy Appeals disposed of.