Allowed

Cisb Services Pvt. Ltd. v. Union of India & Ors.

Delhi HC12 Feb 2024W.P.(C)/16756/2023

Case brief

AI extract

What is this about?

Challenge to two GeM e-tenders where Respondent No. 4 was wrongly treated as an MSE and awarded the tenders despite being ineligible. All four technically qualified bidders were L1. The court directed Respondents 1 and 3 to award both tenders in equal shares among the four eligible bidders.

What did the court decide?

Respondents 1 and 3 directed to award both tenders in equal shares to all four eligible bidders.

Cisb Services Pvt. Ltd. Vs Union of India & Ors. — Public Procurement and Tenders | Delhi HC (2024)

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$~41 and 42

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 16755/2023, CM APPL. 67486-67487/2023 & CM APPL. 7329/2024

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CISB SERVICES PVT LTD ..... Petitioner Through: Mr. Ashish Mohan and Mr. Arush Bhandari, Mr. Santosh Kushwaha, Advocates versus UNION OF INDIA & ORS. ..... Respondent Through: Mr. Vikram Jetly, CGSC with Ms. Shreya Jetly, Advocate for R-1/UOI Ms. Shweta Bharti, Ms. Ankita and Mr. Kushagra Verma, Advocates for R-2. Mr. Rajiv Kapur, Mr. Akshit Kapur, Mr. Aditya Saxena, Advocates for R- 3/SBI with Mr. Suram Chand, AGM, ATM Deptt, SBI. Mr. Rajesh Yadav, Senior Advocate with Mr. Amit Choudhary, Advocate for R-4 42 + W.P.(C) 16756/2023, CM APPL. 67488-67489/2023 & CM APPL. 7261/2024 CISB SERVICES PVT LTD ..... Petitioner Through: Mr. Ashish Mohan and Mr. Arush Bhandari, Mr. Santosh Kushwaha, Advocates versus

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UNION OF INDIA & ORS. ..... Respondent

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W.P.(C) 16755/2023 and W.P.(C) 16756/2023 Page 1 of 5

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Signature Not Verified

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Signed By:MAHIMA SHARMA Signing Da te:1 5.02.2024 17:32:14

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Through: Mr. Vikram Jetly, CGSC with Ms. Shreya Jetly, Advocate for R-1/UOI Ms. Shweta Bharti, Ms. Ankita and Mr. Kushagra Verma, Advocates for R-2.

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Mr. Rajiv Kapur, Mr. Akshit Kapur, Mr. Aditya Saxena, Advocates for R- 3/SBI with Mr. Suram Chand, AGM, ATM Deptt, SBI.

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Mr. Rajesh Yadav, Senior Advocate with Mr. Amit Choudhary, Advocate for R-4

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% Date of Decision: 12^th February, 2024.

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HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

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JUDGMENT

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MANMOHAN, ACJ: (ORAL)

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The subject matter of the present writ petitions is E-tender bearing no. GEM/2023/B/3871653 dated 24^th August, 2023 and E-tender bearing no. GEM/2023/B/3949428 dated 12^th September, 2023 respectively.

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The aforesaid tenders have been issued by Respondent No. 1 for services to be utilized by Respondent No. 3. The said tendering process has been conducted through the Government e-market place i.e., Respondent No. 2, platform.

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It is a matter of record that on 19^th December, 2023 technical bid of the tenders was opened and four (4) bidders including Petitioner and Respondent No. 4 were technically qualified. Further, on 20^th December,

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Signature Not Verified

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Signed By:MAHIMA SHARMA Signing Da te:1 5.02.2024 17:32:14

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W.P.(C) 16755/2023 and W.P.(C) 16756/2023 Page 2 of 5

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2023, when the price bid was opened all the four (4) qualified bidders were declared as L1.

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The present writ petitions were filed as the Petitioner was aggrieved of the Respondent Nos. 1 and 3’s action of considering Respondent No. 4 as a Micro and Small Enterprise (‘MSE’) and choosing to award the tenders in entirety to Respondent No. 4 on this assumption. The Petitioner contends that firstly, Respondent No. 4 is not an MSE as it has a turnover of more than Rs. 210 crores; and secondly, contends that since the eligibility criteria mandatorily required the annual turn-over of the bidder to be at Rs. 150 crores and Rs. 90 crores respectively in both the tenders, an MSE even otherwise could not have been eligible to submit a bid in these tenders.

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Learned senior counsel for Respondent No. 4 fairly states that the contention of the Petitioner to the effect that Respondent No. 4 is not an MSE, is correct. He states that Respondent No. 4 is a recognized medium enterprise. He states that Respondent No. 4 has duly disclosed this fact while uploading its documents. 6. Learned counsel for Respondent No. 3 states that an error crept in during the uploading of the submission process on the GEM portal, as Respondent No. 3 by mistake selected ‘MSE Purchased Preference’ in an affirmative. He states that Respondent No. 3 should have selected ‘No’ on the GEM portal as a MSE is not eligible for participating in these tenders. He states that it has taken six (6) months for this tender process to be completed and therefore, Respondent No. 3 wrote an email on 03^rd January, 2024 to Respondent No. 2 acknowledging the said mistake and requesting them to restart the present tenders, from the stage of, the financial bidding process among the selected four (4) qualified technical bidders. He states

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Signature Not Verified

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Signed By:MAHIMA SHARMA Signing Da te:1 5.02.2024 17:32:14

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W.P.(C) 16755/2023 and W.P.(C) 16756/2023 Page 3 of 5

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that since all the four (4) qualified technical bidders are L1 bidders, the work can be equally divided amongst all the four (4) bidders.

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Learned counsel for Respondent No. 2 states that on the GEM portal, there is no human intervention and Respondent No. 2 would be unable to process the request of Respondent No. 3. She states that the entire process of bidding would have to be re-started.

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Learned counsels for Petitioner and Respondent Nos. 1 and 4 have no objection to the submission of Respondent No. 3 that the tender work can be divided equally amongst all the four (4) technically qualified bidders as they are all L1.

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The list of the four (4) technically qualified bidders which includes the Petitioner and Respondent No. 4 has been filed as Annexure P-5. The said bidders have also emerged as the L1 bidders. Respondent Nos. 1 to 3 admit that each of the four (4) bidders is eligible for being awarded the tenders. However, Respondent No. 2 has expressed its inability to award the tender to the eligible bidders through its e-platform due to the initial wrong selection of ‘MSE Purchase Preference’ by Respondent No. 3. Respondent No. 2 has expressed its inability to process the request of Respondent No. 3 to proceed with the award of contract to the eligible bidders due to the inbuilt restrictions in the program used for operating the e-platform. Respondent No. 2 contends that it cannot modify the tender terms to correct the said mistake and states that the entire process would have to be reinitiated.

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Keeping in view the fact that it took six (6) months for the present bidding process to come to a completion and Respondent Nos. 1 and 3 are duly satisfied with the eligibility of the four (4) successful bidders, we are of

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Signature Not Verified

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Signed By:MAHIMA SHARMA Signing Da te:1 5.02.2024 17:32:14

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W.P.(C) 16755/2023 and W.P.(C) 16756/2023 Page 4 of 5

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the considered opinion that it would be in the public interest to direct Respondent Nos. 1 and 3 to award the tenders in equal shares to all the four (4) eligible bidders.

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With the aforesaid directions, the present writ petitions are allowed. Pending applications stand disposed of.

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ACTING CHIEF JUSTICE

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MANMEET PRITAM SINGH ARORA, J

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FEBRUARY 12, 2024/ hp/ms Click here to check corrigendum, if any

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Signature Not Verified

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Signed By:MAHIMA SHARMA Signing Da te:1 5.02.2024 17:32:14

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W.P.(C) 16755/2023 and W.P.(C) 16756/2023 Page 5 of 5

Cisb Services Pvt. Ltd. v. Union of India & Ors.

Case brief

What is this about?

What did the court decide?

Cisb Services Pvt. Ltd. v. Union of India & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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