ORDER : 1. The petitioner-Company in the instant petition has challenged the order dated 13.04.2018 passed by the Second Appellate Authority – Principal Secretary to the Government. The Second Appellate Authority has set aside the order dated 23.03.2018 passed by the First Appellate Authority in favour of the petitioner-Company in the matter of open Tender (e-Tender) No.F.6/MC/Store/NIT-15/2017-18/2920 for supplying Cardiac Catheterrization Laboratory. The petitioner-Company has further prayed in the writ petition for direction against the official respondents – Principal & Controller, Dr. S.N. Medical College, Jodhpur to proceed as per the Tender, Agreement dated 31.03.2018 (Annex.18), said to be executed after order of the First Appellate Authority and further, compliance of Supply Order dated 30.03.2018 (Annex.17) has been sought in the instant petition. 2. The brief facts of the case are that the office of the Principal & Controller, Dr. S.N. Medical College & Associated Group of Hospitals, Jodhpur (hereinafter referred to as “respondent No.1”) had issued a Short Term Supply Tender Notice No. 15/2017-18 (e-Tender) and on-line bids were invited from the manufacturers/authorized distributors/dealers/Indian Agent for supply of Single Plane Cardiac Catheterization Lab (hereinafter referred to as “Cath Lab”) and quantity of such cath lab was one and estimated cost was Rs.50,000,000/- (Rupees Five Crores only). The instructions were issued to the bidders for online bidding (e-Tender). The respondent No.1 provided technical compliance statement for equipment and instrument & technical specifications were given for said supply of cath lab. The technical qualification and specifications for cath lab was with the bid document, the relevant portion of the same is quoted hereunder:- “SPECIFICATIONS FOR SINGLE PLANE CARDIAC CATHETERIZATION LAB “Latest state of the art, single plane cardiac catheterization lab with DSA with flat detector technology digital imaging system whit latest with latest image processing and does reduction technologies for diagnostic and interventional cardiovascular procedures, valvuloplasty and peripheral vascular angiography. The system must be US FDA/European CE approved and include all packages for cardiac applications. 1.0 C-Arm/G Arm Multi-directional floor/ceiling mounted system of latest design 1.1 All movements should be motorized with C-Arm angulations of minimum RAO/LAO +1-110 deg. CRAN/CAUD +/- 45 deg at head end position 1.2 The system should have at least 20 user defined position of the C-arm and table. 1.3 Manual/motorized parking of C-Arm in case of catastrophe for resusciating the patient 1.4 Motorized peripheral position for peripheral and vascular intervention should be available. CRAN/CAUD +/- 45 deg at head end position 1.2 The system should have at least 20 user defined position of the C-arm and table. 1.3 Manual/motorized parking of C-Arm in case of catastrophe for resusciating the patient 1.4 Motorized peripheral position for peripheral and vascular intervention should be available. 1.5 It should be possible to have complete head to toe coverage without patient repositioning. C-arm positioning on both sides of table should be possible. 1.6 the C arm should have auto collision protection with patient & the table. 1.7 the gantry should have fast speed for angulations at least 18 degree/sec. In LAO/RAO and CRAN/CAUD movement. 2.0 Table 2.1 Floor mounted table with carbon fiber table top of at least 280 cm length and 45 cm width with easy patient transportation capability and able rotation. It should be capable of handling patient weight of at least 150 kg and additional weight for at least 50 kg during resusciatation. 2.2 Should have motorized vertical movement. Transverse travel at least +/- 10 cm Longitudinal travel at least 100 cm. Facility for bolus chase must be there. 2.3 Accessories for the table should include head fixing aids, mattress, four radiolucent carbon fiber arm supports, drip sand and radial catheterization arm support. 3.0 X-Ray Generator: 3.1 Generator should be of least technology. Max power of 100 KW or more compatible with high resolution imaging. 3.2 Generator should be at least 50 Kz frequency Higher frequency generator will be preferred 3.3 Radiographic K Vp range to be 40-125 K Vp or more Fluoroscopy K Vp range to be 60-120 K Vp or more. 3.4 Should have automatic exposure control device for radiographic fluoroscopy and angio mode. 4.0 X-Ray Tube: 4.1 X-Ray tube should be with fine focal spot (small & large) with high cooling fate to ensure continuous operation. The large focus power output should be 80 KW or more. 4.2 The X-Ray tube should have Anode heat storage capacity of at least 3.0 MHU or more to run continuously for 6-8 hours without shutting off and with advanced cooling mechanism.” 3. The technical specifications at serial number 5 was in respect of Radiation Protection and relevant portion is quoted hereunder:- “5. Radiation Protection: 5.1 The system should have integrated computer controlled (preferably automatic) X-Ray beam filtering with copper filters of various size from 0.1 mm to 0.6 mm in fluoro and acquisition mode. The technical specifications at serial number 5 was in respect of Radiation Protection and relevant portion is quoted hereunder:- “5. Radiation Protection: 5.1 The system should have integrated computer controlled (preferably automatic) X-Ray beam filtering with copper filters of various size from 0.1 mm to 0.6 mm in fluoro and acquisition mode. Please list the special filters available 5.2 The system should have positioning of collimator blades without radiation 5.3 The system should have monitoring and display of X-ray dose during the patient examination. It should be possible to create a DICOM based dose report of the patient. 5.4 System should meet all National & International safety standards & comply with BARC & AERB guidelines. 5.5 System should be offered with radiation safety package like CARE & CLEAR/Clarity IQ or equivalent.” 4. The petitioner-Company finding itself to be fully eligible for participating in the tender process submitted its bid. The Technical Committee for purchase of cath lab machine vide communication dated 22.02.2018 published the report for evaluation of specifications submitted by the petitioner-Company and the private respondent - M/s Siemens Healthcare Private Limited. The Committee found that technical specifications of M/s Siemens Healthcare Private Limited are approved and the technical specifications of the petitioner-Company - M/s. Philips India Limited were rejected as they had not offered required radiation safety package and Clarity-IQ, as mentioned in the specifications vide Point No. 5.5. The relevant portion of the order dated 22.02.2018 is quoted hereunder:- “Technical committee for purchase of Cath Lab Machine, MDM Hospital Jodhpur S.N. 28                                                                                                Date : 22.2.18 To, The Principal, Dr. S.N. Medical College, Jodhpur. Ref: Your letter ,Q 6 Hk.Mkj@vkefr@tks@fufonk&15@2017&18@3818 fna 12@2@18 Sir, Please find enclosed the report of technical committee for evaluation of specification submitted by M/s Phillips Electronic India Limited and Siemens Health Care Pvt. Ltd. 1. The technical specifications of Siemens Health Care Pvt. Ltd. Are approved. 2. The technical specifications of Phillips Electronic India Limited are rejected as they have not offered required radiation safety package (clarity I Q) as mentioned in specification wide Point No. 5.5. sd/- sd/- sd/- (Dr. Rohit Mathur) (Dr. Deepak Gupta) (Dr. Sanjeev Sanghvi) Encloser:- 1. Your letter ,Q 6 Hk.Mkj@vkefr@tks@fufonk&15@2017&18@3818 fna 12@2@18 2. File of specifications submitted by both the companies. 3. Clarification asked by technical committee and the reply given by Phillips Electronic India Limited.” 5. sd/- sd/- sd/- (Dr. Rohit Mathur) (Dr. Deepak Gupta) (Dr. Sanjeev Sanghvi) Encloser:- 1. Your letter ,Q 6 Hk.Mkj@vkefr@tks@fufonk&15@2017&18@3818 fna 12@2@18 2. File of specifications submitted by both the companies. 3. Clarification asked by technical committee and the reply given by Phillips Electronic India Limited.” 5. The petitioner-Company felt aggrieved against rejection of their technical bid and filed first appeal as provided under The Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as “the Act of 2012”). The first appeal was filed before the Director, Medical Education, Jaipur. The First Appellate Authority, after filing of the appeal by the petitioner- Company, issued notice to the private respondent and all the parties were heard and eventually, an order dated 23.03.2018 was passed wherein, it was recorded that the procurement entity had wrongly rejected the technical bid of the petitioner-Company and the Technical Evaluation Committee was wrong in assessing the eligibility of the petitioner-Company. It was recorded that said Evaluation Committee failed to consider Dose-wise Specifications were equivalent to Clarity IQ or not. It was further recorded that the Technical Committee, while considering the specifications, considered the proprietary nature and not the general specifications. The Technical Committee further recorded that the petitioner-Company had offered its model was different than the model offered by the private respondent as Care and Clear System. It was further recorded that the Technical Committee, while considering the specifications, considered the proprietary nature and not the general specifications. The Technical Committee further recorded that the petitioner-Company had offered its model was different than the model offered by the private respondent as Care and Clear System. The relevant portion of the order of the First Appellate Authority is quoted hereunder:- **lEcfUèkr leLr i{kksa dks ;qfDr;qDr lquokbZ dk volj iznku dj dSFk ysc ls lEcfU/kr dz; ds izdj.k esa fuEukuqlkj fu.kZ; fy;k tkdj vkns'k tkjh fd;s tkrs gSa%& esfMdy dkWyst] tks/kiqj }kjk rdfudh LisflfQds'ku esa ¼fcUnq 5-5½ “System should be offered with radiation safety package Care & Clear/Clarity IQ or Equivalent” dk Clause fofgr fd;k x;k FkkA bl laca/k esa M/s. Phillips India Ltd. }kjk fnukad 05-03-2018 dks fy[ks x;s i= esa Li"V fd;k x;k fd C Phillips Equivalent Technology of Care & Clear is “Dose Wise” Where as Clarity IQ “is a Separate Cathlab Model” blls iwoZ QeZ }kjk fnukad 12-01-2018 ds i= esa mDr LisflfQds'ku ds laca/k esa vko';d la'kks/ku dhysa dj izLrko e; vk/kkj izLrqr djrs gq, voxr djk;k x;k Fkk fd Clarity IQ “Proprietary” izd`fr dk gSA rdfudh lfefr }kjk fnukad 16-02-2018 dks izLrqr fjiksVZ esa fuEufyf[kr vk/kkj ij M/s. Phillips India Ltd. dh fufonk dks rdfudh :i ls vLohd`r fd;k x;kA They have not offered radiation safety package (clarity IQ) as mentioned in specification vide Point no. 5.5” tcfd rdfudh lfefr }kjk ;g fl) ugha fd;k x;k “Dose wise” specifications okafNr specifications (Clarity IQ or Equivalent) ds led{k gS vFkok ughaA rdfudh lfefr dks specifications es “Proprietary” Nature ds ekinaM ugha n'kkZ,a tkdj okafNr ifj.kke izkfIr gsrq lkekU; izd`fr General Specifications ds :i esa n'kkZ;k tkuk pkfg, Fkk A rdfudh lfefr }kjk QeZ dk nkok dh (clarity IQ) fHkUu ekWMy gS rFkk Care & Clear System ls fHkUu o mPp gS ds laca/k esa Hkh fLFkfr Li"V ugha dh xbZ gSA vr% M/s. Phillips India Ltd. dh cksyh dks rdfudh :i ls fujLr fd;s tkus ls iwoZ] ikjnf'kZrk dks n`f"Vxr j[krs gq, QeZ ds Representation rFkk Claims dks xyr fl) fd;k tkuk Fkk tks i=koyh esa ugha ik;k x;kA M/s. Phillips India Ltd. Gurugram }kjk nkf[ky izFke vihy esa ftu fcUnqvksa dk mYys[k fd;k x;k gS mudk ijh{k.k izLrqr nLrkost ,oa izkIr Li"Vhdj.k ds vk/kkj ij M/s. Phillips India Ltd. dh vihy vkSfpR;iw.kZ @ lehphu ekuh tkrh gSA mDr fu.kZ; ds QyLi:i esfMdy dkWyst] tks/kiqj dks rnkuqlkj fu;ekUrxZr dk;Zokgh fd;s tkus ds funsZ'k fn;s tkrs gSaA^^ 6. The official respondents, after order being passed by the First Appellate Authority, called the petitioner-Company for considering their Technical Bid and further considered the price offered by the petitioner-Company. The petitioner-Company had given the details, quoted the price, discount and discounted price to the official respondents. The Company vide communication dated 27.03.2018 (Annex.16) further specifically wrote that apart from the special discount, they will be supplying Alura Clarity IQ System which was costing the Company an additional cost of Rs. 45.00 lacs in place of their quoted system at no additional cost. The relevant portion of the letter written by the petitioner- Company dated 27.03.2018 is quoted as hereunder:- “Sub: Price Negotiation Meeting held on March 27, 2018. REF: Tender No. NIT 15 (2017-18) Cath Lab 2920 and e Tender ID 2018_SNMCJ_89864_1 Dear Sir, With reference to the above mentioned tender for supply Single Plane Cardiac Catheterization Lab System and the negotiation meeting held in your office on 27.03.2018, we are pleased to confirm the following special discounts on our quoted prices as mentioned below. REF: Tender No. NIT 15 (2017-18) Cath Lab 2920 and e Tender ID 2018_SNMCJ_89864_1 Dear Sir, With reference to the above mentioned tender for supply Single Plane Cardiac Catheterization Lab System and the negotiation meeting held in your office on 27.03.2018, we are pleased to confirm the following special discounts on our quoted prices as mentioned below. Detail Quoted Price Discount Discounted Price Main Equipment Price(Imported Item) (Custom Duty & iGST will be extra at actuals USD 511,269/- Nil USD 511,269/- Local Supplied Items (including taxes) INR 7,37,247/- INR 3,76,255/- INR 73,60,992/- Turnkey (including taxes) INR 36,20,853/- INR 3,76,255/- INR 32,44,598/- Custom Duty & iGST on Main Equipment (Imported item) as per our quotation USD 94,729 Nil USD 94,729/- Total Total INR 50,050,000/- Rupees Five Crore Fifty Thousand Only (calculating US Dollar items at exchange rate of INR 65.09/- for calculation purpose) USD 511,269/-+ INR 1,13,58,100/-+ USD 94,729/- INR 7,52,510/- USD 511,269/-+INR 1,06,05,590/-+USD 94,729/- Apart from above special discount we will be supplying Allura Clarity IQ system which is costing Phillips additional INR 45,00,000/- in place of our quoted system at no additional cost.” 7. The official respondents, after considering the offer and price and further supplying of Allura Clarity IQ System, issued an order dated 30.03.2018 (Annex.17) asking the petitioner-Company for supply of Single Plane Cardiac Catheterization Lab. The said order is said to be a work order as per the petitioner. 8. The petitioner has also annexed an agreement which was prepared between the respondent No.1 and the petitioner- Company dated 31.03.2018 for supply of cath lab, though the said agreement was got typed but the same was not executed. 9. The private respondent - M/s Siemens Healthcare Private Limited feeling aggrieved against the order passed by the First Appellate Authority, filed second appeal before the Principal Secretary to the Government as per the provisions contained under the Act of 2012. 10. The Second Appellate Authority allowed the appeal of the private respondent and the order dated 23.03.2018 passed by the First Appellate Authority and action taken in furtherance of the impugned order were quashed and further, the original orders of Principal & Controller have been restored. 10. The Second Appellate Authority allowed the appeal of the private respondent and the order dated 23.03.2018 passed by the First Appellate Authority and action taken in furtherance of the impugned order were quashed and further, the original orders of Principal & Controller have been restored. The relevant portion of the order of the Second Appellate Authority is quoted hereunder:- “While going through the facts presented by both the parties it seems that in clause 5.5 of the tender specification, the companies quoting were asked to offer latest state of the art radiation safety package like care and clear/clarity IQ or equivalent. As is explained above M/s Siemens Healthcare was required to offer “care and clear”. M/s. Phillips India Ltd. Was required to offer “clarity IQ” and any non- Phillips, Non-Siemens Company would offer equivalent software. Among the two companies quoting for the above said tender M/s. Phillips India Ltd. Have two such systems viz “clarity IQ” and “Dose wise”. Clarity IQ system is superior in efficiency and latest in reducing radiation than “Dose Wise” which is older and of inferior quality against the required ‘latest state of the art’ as per specifications. M/s. Siemens Healthcare offered “care and clear” as radiation safety package as per specifications. Offer of M/s. Phillips India Ltd with “dose wise package” and not “clarity IQ” in their tender shows that their intention was to offer inferior quality system so that the low cost quotation could be adjusted. After getting opportunity to open financial bid when M/S Phillips found that their system is of lower standard after which they offered their superior system “clarity IQ” in negotiation which should have been offered initially. This indicates intention of misinterpretation of terms and conditions by M/s Phillips to get the award. In view of the above, the orders dated: 23/3/2018 passed by the First Appellate Authority and action taken in furtherance to the impugned order stands quashed and original orders of Principal and Controller restored but he has to fulfill other conditions under RTPP Act to proceed further in the matter.” 11. The petitioner-Company in view of the order passed by the Second Appellate Authority has approached this Court challenging the said order and further, seeking compliance of the work order and agreement entered between the Company and the respondent No.1. 12. The learned counsel Mr. The petitioner-Company in view of the order passed by the Second Appellate Authority has approached this Court challenging the said order and further, seeking compliance of the work order and agreement entered between the Company and the respondent No.1. 12. The learned counsel Mr. Ashish Singh appearing for the petitioner-Company has made the following submissions in support of the writ petition:- (i) That the impugned order initially passed by the Technical Evaluation Committee dated 22.02.2018 did not assign any reason specifically, as to why the petitioner’s bid was not technically qualified ? The learned counsel submitted that if the petitioner had initially offered Allura Dose Reduction Method, as per the technical specifications provided in Clause 5.5, the Bid Evaluation Committee, without considering the product offered by the petitioner-Company, rejected the bid in arbitrary manner. The learned counsel submitted that the bid document required that the system offered with radiation safety package could be like Care and Clear/Clarity IQ or equivalent. The learned counsel submitted that the Allura Dose Reduction System was equivalent to the radiation safety package and without considering the equivalence of radiation safety package, the Technical Evaluation Committee, without considering such aspect of the matter, passed the impugned order. (ii) The learned counsel submitted that once the procuring entity – Technical Evaluation Committee itself provided that radiation safety package could not only be confined to two types like care & clear/clarity IQ, the word equivalent will become otiose and if a bidder, who meets with the radiation safety package, such bidder cannot be rendered technically disqualified. (iii) The learned counsel submitted that after the order of the First Appellate Authority allowing the appeal of the petitioner-Company, if the petitioner-Company had come-forward to bring the offer, i.e. clarity IQ radiation safety package, the same ought to have been considered. The learned counsel submitted that even the price which was offered by the private respondent was on the higher side and with the same technology of radiation safety and clarity IQ with lower price, the official respondents ought to have awarded the contract in favour of the petitioner-Company. (iv) The Second Appellate Authority’s order suffers from serious legal infirmities. The learned counsel submitted that even the price which was offered by the private respondent was on the higher side and with the same technology of radiation safety and clarity IQ with lower price, the official respondents ought to have awarded the contract in favour of the petitioner-Company. (iv) The Second Appellate Authority’s order suffers from serious legal infirmities. The learned counsel submitted that the Second Appellate Authority could not have recorded a finding with regard to difference of two systems, i.e., Clarity IQ and Dose Wise like Clarity IQ system is very effective in reducing the radiation than Dose Wise system. The learned counsel submitted that the Second Appellate Authority has given erroneous findings to decide the appeal in favour of the private respondent. (v) The learned counsel submitted that the Second Appellate Authority could not have given any such finding of comparison of technology in absence of opinion of the expert on the subject or the job which could have been done by the professionals could not have done by the Second Appellate Authority. (vi) The learned counsel submitted that the procedure adopted by the respondent No.1, after exclusion of the petitioner-Company, the single bidder i.e. the private respondent should not have been awarded the contract and the proper process was required to be followed but the same was not followed and the conditions while accepting the single bidder should have been adhered too as per the provisions of the Act of 2012. (vii) The learned counsel submitted that the official respondent No.1 once accepted the version/finding of the First Appellate Authority and accordingly, issued work order, the official respondents could not have withdrawn these orders and they were supposed to adhere to the work order and execute the agreement which got prepared between the parties. 13. Per contra, Mr. Pankaj Sharma, the learned Additional Advocate General appearing on behalf of the official respondents- State submitted that the decision taken by the Technical Evaluation Committee vide order dated 22.02.2018 is a perfect and valid order and the same order could not have been set aside by the First Appellate Authority. 14. The learned Additional Advocate General submitted that a bare reading of the technical specifications clearly provided that the latest state-of-art cath lab machine was the requirement of the procuring entity. 14. The learned Additional Advocate General submitted that a bare reading of the technical specifications clearly provided that the latest state-of-art cath lab machine was the requirement of the procuring entity. The learned counsel pointed out that the Allura Dose Wise technology offered by the petitioner-Company was not the latest technology and the said technology has become stale in changing circumstances and accordingly, the procuring entity not only mentioned specifically that latest cath lab is required but also made it very explicit in Clause 5.5 of the tender document that the system which is to be offered with radiation safety package should have “Care & clear/ Clarity IQ. 15. The learned counsel submitted that Care & Clear/ Clarity IQ is the latest technology which is required in the interest of patients and since the petitioner-Company, admittedly, did not offer the said technology while quoting and participating in the tender process, the petitioner-Company was rightly found technically disqualified by the Technical Evaluation Committee. 16. The learned counsel submitted that the terms and conditions of the tender conditions were very specific and the petitioner- Company, in fact, had sought amendment in the original tender specifications and a request was made vide letter dated 12.01.2018 by the petitioner-Company, where they requested the procuring entity that there should be amendment in the conditions of radiation safety and reasons for amendment as given by the petitioner-Company was equivalent technology of care and clear dose; clarity is the name of cath lab model and none of the vendors had equivalent of the same and would be proprietary as of now. The relevant portion of the letter dated 12.01.2018 written by the petitioner-Company is quoted here as under:- S.No. Specification as per the tender Amendment required Pt.5.5 pg21 System should be offered with radiation safety package like CARE & CLEAR/Clarity IQ or equivalent System should have Latest Low dose Radiation safety feature for safety of Operator and Patient Reason for amendment : Equivalent technology of Care & Clear is Dose wise. Also Clarity is name of Cath lab model and none of the vendor have equivalent of the same. This would be a proprietary as of now. Pt. 6.12 Please add the following lines: The Latest complete software and hardware for visualising stent enhancement with relation to Lumen (Fade in fade out) with extra high resolution from table side control. Pt. Also Clarity is name of Cath lab model and none of the vendor have equivalent of the same. This would be a proprietary as of now. Pt. 6.12 Please add the following lines: The Latest complete software and hardware for visualising stent enhancement with relation to Lumen (Fade in fade out) with extra high resolution from table side control. Pt. 6.13 Disc Storage capacity of at least 95000 uncompressed images of 1024x1024 matrix at a minimum of 10-bit pixel. It should have minimum image storage capacity of 1000000 images in 1024 x 1024 matrix at 10/12 bits on the main system disk. User selected flouro loops should be possible to store in the disc. These loops should be retrievable instantly for review from both rooms. 17. The learned counsel for the State submitted that the Pre Bid Conference which was held, specifically rejected the request of the petitioner-Company and such report has been placed on record as Annexure-6 along with the writ petition filed by the petitioner. 18. The learned counsel for the State further submitted that while preparing the statement and considering the technical specifications by the Committee, it was clearly recorded in respect of the Clause 5 – Radiation Protection against Point No. 5.5 that the petitioner-Company had not given the “Clarity IQ” technology and had given “Dose Wise” radiation safety package. 19. The learned counsel for the State submitted that the preparation of the chart by the Technical Evaluation Committee and the Statement so prepared has been filed by the petitioner- Company in his writ petition as Annexure-10 and it clearly records that the Dose Wise technology was offered by the petitioner- Company and the same was not of Clarity IQ. 20. The learned counsel submitted that once the pre-bid meeting was held and the decision was communicated and the offer of the petitioner-Company was rejected, the petitioner-Company did not feel aggrieved at that point of time and such decision was not challenged and as such, the learned counsel for the State submitted that the petitioner-Company be estopped to challenge the Technical Evaluation Committee’s report and communication dated 22.02.2018. 21. The learned counsel further submitted that at that time, the petitioner-Company had offered Allura Dose Wise Radiation Package. 21. The learned counsel further submitted that at that time, the petitioner-Company had offered Allura Dose Wise Radiation Package. The learned counsel has referred to the document furnished by the petitioner-Company along with the tender document bearing the date of 30.07.2004 where summary was given and against the column of Device Trade Names, the technology of Allura Xper FD10 has been mentioned. The learned counsel submitted that the comparison between the technology offered by the petitioner-Company and what was desired by the procuring entity is clear by way of comparison which is placed on record by the petitioner-Company itself (page 152 of the writ petition). It is highlighted by the learned Additional Advocate General that Clarity IQ technology reduced patient dose by 62% compared to an Allura Xper system. The learned counsel further submitted that in all procedures, like in diagnostic neuro procedures, interventional neuro procedures, diagnostic coronary angiography and in iliac DSA, Clarity IQ technology reduces patient dose substantially. The learned counsel submitted that the said report itself filed by the petitioner-Company clearly records a finding that now with an Allura Clarity, one can decide with confidence, at dramatically lower X-ray dose levels, without changing the way of working. 22. The learned counsel submitted that the subsequent offer given by the petitioner by way of negotiation in respect of the price, might have been changed the product, was of no consequence and in particularly, after second appeal of the private respondent being allowed, the procuring entity is bound to proceed as per the directions given by the Second Appellate Authority. 23. The learned counsel submitted that the work order and the alleged agreement which was to be executed between the petitioner-Company and the Respondent No.1, was due to passing of an order by the First Appellate Authority and the same cannot bind the official respondents and the petitioner-Company cannot seek a mandamus that the work order must be given effect to and the agreement should be executed. 24. The learned counsel for the State further placed reliance on a document filed with the reply of the State where it was emphasized that Allura Clarity family with Clarity IQ technology is the latest breakthrough in commitment to minimize radiation exposure for patients and clinical staff. It sets a new standard by pushing the boundaries of ALARA (As Low As Reasonably Achievable). 25. It sets a new standard by pushing the boundaries of ALARA (As Low As Reasonably Achievable). 25. The learned counsel for the State further submitted that the even the petitioner-Company, who has technology of Allura XperFD10 model can upgrade to the Allura Clarity system via smart path program. This paves the way to a wealth of potential benefits. The learned counsel has referred to the report filed with the reply which has been down loaded from the web-site. 26. The learned Senior Counsel Mr. Ravi Bhansali assisted by the learned counsel Mr. Aakash Bajaj, Mr. Abhishek Mehta and Mr. Vipul Dharnia appearing on behalf of the private respondent - M/s Siemens Healthcare Private Limited submitted that the Second Appellate Authority has rightly decided the appeal filed by the private respondent and no fault can be found with any of the findings which have been given. 27. The learned counsel submitted that the petitioner-Company, admittedly, did not initially offer the radiation package technology of Clarity IQ and it could not have been permitted to even substitute or change the offer after decision by the First Appellate Authority. The learned counsel submitted that since the private respondent was only the technically qualified bidder as the Company was having Care & Clear technology for radiation safety, the Technical Evaluation Committee rightly found the private respondent as technically qualified and correctly passed the order treating the petitioner-Company as technically disqualified. The learned counsel further submitted that Rule 54(3) of The Rajsthan Transparency in Public Procurement Rules, 2013 (hereinafter referred to as “the Rules of 2013”) which clearly provides that once a bid is given, the bid cannot be withdrawn, substituted or modified after the last time fixed for receipt of the bids. The learned counsel submitted that the last date for submitting the bid in question was 29.01.2018 and the private respondent was declared technically qualified, its financial bid was opened on 07.03.2018. The learned counsel submitted that the offer of changing technology which was given by the petitioner-Company on 27.03.2018 and as such, as per Rule 54(3) of the Rules of 2013, the offer of the petitioner-Company could not have been even considered by the official respondents. 28. The learned counsel submitted that the offer of changing technology which was given by the petitioner-Company on 27.03.2018 and as such, as per Rule 54(3) of the Rules of 2013, the offer of the petitioner-Company could not have been even considered by the official respondents. 28. The learned counsel for the private respondent submitted that the latest technology which was the basic purpose of the procuring entity to have the cath lab, can further be gathered from the fact of issuing tender document by Government of India and to support such contention, the private respondent has placed on record a document (Annex. R/2/2) wherein in Clause 23, it has been specifically provided that the system must have all software/hardware packages for radiation safety of operator and patient like care and clear/Allura Clarity or equivalent. The learned counsel submitted that the petitioner-Company itself has participated in such tender process floated by the Government of India and it has offered Allura Clarity which is known as Clarity IQ as well. 29. The learned counsel submitted that in the present case, the petitioner-Company has offered Allura Xper FD10 technology and this document is of the year 2004 (page 243 of the writ petition) and accordingly, the petitioner-Company was rightly not found technically qualified. The learned counsel for the private respondent submitted that the petitioner-Company is guilty of concealment and suppression of certain facts, as the document which was filed along with the tender by the petitioner-Company of having its technology of Allura Xper FD10 was issued in the year 2004 and in the writ petition, the document has been filed which is issued in the year 2013. 30. The learned counsel further submitted that the scope of the judicial review in the tender matters is very limited and judicial review is only permitted where, the action of the procuring entity is arbitrary/malafide or procedure has been adopted to favour someone. The learned counsel further submitted that Hon’ble the Apex Court in the case of Monte Carlo Limited Vs. National Thermal Power Corporation Limited, reported in (2016) 15 SCC 272 has laid down the parameters as to how judicial review is permitted in the tender matters. The learned counsel has placed reliance on paragraphs No. 25 and 26 of the said judgment and for ready reference, they are quoted hereunder:- “25. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. The learned counsel has placed reliance on paragraphs No. 25 and 26 of the said judgment and for ready reference, they are quoted hereunder:- “25. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. a two-Judge Bench eloquently exposited the test which is to the following effect: “We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may given an interpretation to the tender document that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” 26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner’s organisation is taken. This ensures objectivity. Bidder’s expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This area which we have referred required technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.” 31. The learned counsel for the private respondent has further placed reliance on the judgment reported in [2016] 9 Scale 62 – Shobikaa Impex Pvt. Ltd. VS Central Medical Services Society and learned counsel has submitted on the strength of the said judgment that if there are essential conditions in the tender document, the same are required to be adhered too. 32. In the rejoinder, learned counsel for the petitioner-Company has submitted that the petitioner-Company, while initially had offered the radiation safety package, it was not an old technology, a new version of 8.2.1 was offered and it had fulfilled the requirement of the procuring entity. The learned counsel submitted that none of the authorities have considered the technology which was equivalent to the other safety technologies like Care & Clear/Clarity IQ. The learned counsel submitted that it is not the old technology of Allura XperFD10 but it was a new version which had made the petitioner-Company eligible and it has wrongly been technically disqualified. 33. The learned counsel submitted that none of the authorities have considered the technology which was equivalent to the other safety technologies like Care & Clear/Clarity IQ. The learned counsel submitted that it is not the old technology of Allura XperFD10 but it was a new version which had made the petitioner-Company eligible and it has wrongly been technically disqualified. 33. The learned counsel has submitted that the respondent No.1 being a procuring entity has to keep in mind the best comparative prices which were offered and in the interest of general public, if the offer of the petitioner-Company was found to be lower with the same technology than the offer of the private respondent, the Government ought to have, as a prudent person, accepted the offer of the petitioner-Company. 34. The learned Senior Counsel Mr. Ravi Bhansali assisted by Mr. Aakash Bajaj, Mr. Abhishek Mehta and Mr. Vipul Dharnia appearing on behalf of the private respondent - M/s Siemens Healthcare Private Limited disputed the said statement by saying that the difference of offer between the petitioner-Company and the private respondent was hardly of Rs.4,000/- and as such, no substantial difference can be made as is suggested by the learned counsel for the petitioner-Company. 35. I have heard learned counsel for the parties and scanned through the material available on record. 36. This Court on a bare reading of terms and conditions and technical specifications for supply of the cath lab, finds that radiation protection was one of the essential condition and as per condition No. 5.5, the system which was to be offered with radiation safety was to be of more importance. The tender document required the safety package in the nature of Care & Clear/Clarity IQ or equivalent. This Court finds that the petitioner- Company, admittedly, had not offered Care & Clear or Clarity IQ system. The submission of the learned counsel for the petitioner that the Technical Evaluation Committee has acted arbitrary in rejecting the bid of the petitioner, this Court finds that the statement which has been prepared by the Technical Evaluation Committee clearly records the comparison between the private respondent - M/s Siemens Healthcare Private Limited and M/s. Philips India Limited (the petitioner). This Court finds that in the column of radiation protection as per Clause 5.5, the petitioner- Company has offered the technology of Dose Wise and Clarity IQ has not been given. This Court finds that in the column of radiation protection as per Clause 5.5, the petitioner- Company has offered the technology of Dose Wise and Clarity IQ has not been given. A perusal of the said statement clearly shows that the private respondent was found to have given the information of the system as per Care & Clear, which qualified them as per the technical qualification. 37. This Court further finds from the facts of the case which have emerged from the pleadings that the petitioner-Company itself at one point of time had sought amendment in the tender document and a request was made to amend the clause of the technical specifications with respect to radiation protection and the said request of the petitioner-Company was discussed in Pre Bid Meeting and the same was specifically rejected. 38. This Court further finds that the decision which was taken by the Pre Bid Committee was accepted by the petitioner-Company as the same was not questioned before any appropriate forum. 39. This Court further finds that the petitioner-Company, after decision by the First Appellate Authority, participated in the process with the official respondents and had itself agreed to upgrade the technology of the product by making an offer of technology with Clarity IQ. 40. The submission of the learned counsel for the petitioner- Company that once the First Appellate Authority has set aside the order of the Technical Evaluation Committee, all the things would be required to be considered afresh, this Court is afraid to accept such submission of the learned counsel for the petitioner- Company. This Court finds that the Rule 54(3) of the Rules of 2013 puts a restriction to make any substitution or modification in the bid and as such, even if the petitioner-Company came finally with an offer or better technology or latest technology of safety, the same could not have been taken into account by the procuring entity. 41. This Court is conscious of the fact that the first appeal was allowed by the First Appellate Authority vide order dated 23.03.2018, however, the procuring entity was required to consider, as to whether the petitioner-Company has offered the same product for radiation safety or it has changed the product itself. 42. 41. This Court is conscious of the fact that the first appeal was allowed by the First Appellate Authority vide order dated 23.03.2018, however, the procuring entity was required to consider, as to whether the petitioner-Company has offered the same product for radiation safety or it has changed the product itself. 42. The submission of the learned counsel for the petitioner- Company that the order passed by the Technical Evaluation Committee did not assign any reason, this Court finds that the request of the petitioner-Company was already rejected in Pre Bid Meeting and as such, the Technical Evaluation Committee had to proceed as per the terms and conditions and specifications required in the tender document. 43. The submission of the learned counsel for the petitioner- Company that at least the authorities were required to consider equivalence of the technologies offered by the petitioner- Company, this Court finds that, admittedly, the petitioner- Company initially had offered and has pleaded in the writ petition that it had given Allura Xper FD10 technology “Dose Wise” for radiation safety and the same could not have been kept on the same pedestal as has been given to the technology of Care and Clear System or Clarity IQ. 44. This Court is further constrained to take the view that as the petitioner-Company is said to have participated in the tender process where initially the petitioner-Company had offered the technology/system of radiation safety in the nature of Allura Clarity/Clarity IQ, the petitioner-Company was well aware of the fact that Allura Dose Reduction and Allura Clarity are two distinct systems and for the tender process in which they participated in the State of Rajasthan if they have not offered Allura Clarity/ Clarity IQ, no fault can be found with the decision of the Technical Evaluation Committee in disqualifying the petitioner-Company. 45. The submission of the learned counsel for the petitioner- Company that the Second Appellate Authority could not have decided with respect to the quality or superiority or a particular system, suffice it to say by this Court that those observations are of no consequence in the instant case. The petitioner-Company was found to have offered the Dose Wise System and the same was found to be of sub-standard and not as per Clause 5.5. The petitioner-Company was found to have offered the Dose Wise System and the same was found to be of sub-standard and not as per Clause 5.5. The Second Appellate Authority has only been guided by the requirements of the procuring entity where it specifically emphasized that the latest state of the art technology was to be provided. This Court finds that if for the benefit of a patient by latest technology, if dose is given in lessor quantity, the same is beneficial for the said patient and public at large. 46. The submission of the learned counsel for the petitioner- Company that if at all the respondent No. 2 was the only successful bidder in technical comparison than the same could not have been awarded the contract and the proper course for the procuring entity was to initiate fresh and new process for the tender in question, this Court finds that in a given case, if the single bidder remains successful and it conform to the requirements of the procuring entity, no illegality can be attached to the said decision. 47. Though this Court finds that in the matter of Government Contracts/Tenders, the writ jurisdiction can be exercised in some contingencies and judicial review is not altogether excluded. It is trite law that the power of judicial review can be exercised in tender matters if the procuring entity acts arbitrarily/mala fidely or the procedure adopted is to favour someone. This Court in the instant case finds that the decision of the procuring entity cannot be faulted with, as the same has not been taken mala fidely or to favour someone. 48. This Court finds that the present writ petition is devoid of any merit and the same is accordingly dismissed.