Petition challenged an e-procurement notice for welfare schemes, alleging eligibility criteria excluded MSMEs. The court noted no evidence of MSME registration and rejected the claim as the notice predated the petition's filing.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Page No.# 1/3
GAHC010014002019
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 441/2019
1:PRAVEEN BAISHYA AND ANR.
S/O- SRI PHANINDRA KR. BAISHYA, VILL- BHASKAR NAGAR, BAMUNIMAIDAN, P.O. NOONMATI, DIST- KAMRUP (M), PIN- 781021
2: JUGAL KISHORE BANIA S/O- SRI BIRASAR BANIA VILL- SIPAJHAR P.O. SIPAJHAR P.S. SIPAJHAR DIST- DARRANG, PIN- 78414
VERSUS
1:THE STATE OF ASSAM AND 2 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, DEPTT. OF WELFARE OF PLAIN TRIBES AND BACKWARD CLASSES, GHY- 6
2:THE DIRECTOR WELFARE OF SCHEDULED CASTE ASSAM, SARUMOTORIA DISPUR, GHY-6
3:THE MANAGING DIRECTOR
ASSAM STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTE LTD. SWARAJNAGAR SARUMOTORIA, GHY-3
Advocate for the Petitioner : MD. M H CHOUDHURY
Advocate for the Respondent : GA, ASSAM
Page No.# 2/3
BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
Date : 08-02-2019
Heard Ms. M. Deori, learned counsel for the petitioner and Mr. R. Dhar, learned Govt. Advocate, Assam for the respondents.
By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of e-procurement notice issued by the Director, Welfare of Scheduled Castes, Assam on 24.12.2018.
As per e-procurement notice, the said Director invited bids in e-tendering system for supply of the following items:-
Grievance of the petitioners pertain to Clause-2.1 of the bid document as well as “some clauses” of bid document whereby requirement has been inserted that the company has to be profit making for the last 3 years and has to be registered at least for last 5 years prior to submission of bid. It is contended that petitioner is a Micro Small and Medium Enterprise (MSME) and for MSMEs, such conditions are not required.
Clause 2.1 of the eligibility criteria as per Instructions to Bidders reads as under:-
“ 2.1 The eligible bidders for the purpose of this Bid are the manufacturer or their authorized Company/Distributor/Dealer having authorization from manufacturer specifically for this bidding process. In this regard authorization from the manufacturer for more than one bidder will not be accepted. However, in the authorisation form, the principal must clearly indicate all the authorized service centre of the manufacturer.”
On 25.01.2019, learned Govt. Advocate was directed to obtain instruction as to the
Page No.# 3/3
rationale behind Clause 2.1 of the eligibility criteria of the e-procurement notice dated 24.12.2018.
Today, when the matter is called upon, Mr. Dhar submits on the basis of written instruction that Clause-2.1 is a general clause which is inserted in almost all the tenders for the benefit of the beneficiaries belonging to the targetted groups, like persons belonging to scheduled castes etc. Such condition has been inserted only to ensure that the beneficiaries get continuous after sales service from the company as without such authorisation from the company, the beneficiary may not get after sales service. Bidders of the technical and mechanical entry items need not be the manufacturers. Therefore, to bind the manufacturers to extend continuous support to the bidders as well as to protect the beneficiaries, this clause has been inserted in the tender.
Explanation furnished appears to be reasonable.
In so far the other contention of the petitioner is concerned, it is seen that as per Clause7 of the e-procurement notice, a bidder is required to deposit earnest money amounting to Rs.4,00,000.00 if he belongs to the general category and Rs.2,00,000.00 if he belongs to the scheduled castes/scheduled tribes/other backward classes. Such deposit of earnest money by a bidder with reduced rate for the reserved category bidder cannot be said to be an unreasonable condition, oppressive to the bidders. Further, the documents filed alongwith the writ petition do not indicate any provision whereby such deposit of earnest money is waived in respect of MSME enterprises.
That apart, there is no document on record to show that petitioner is a registered MSME contractor. Besides, the e-procurement notice was issued on 24.12.2018 with last date of bid submission fixed on 08.01.2019; writ petition was filed much later on 22.01.2019.
In such circumstances, Court is not inclined to entertain the writ petition which is accordingly dismissed.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the eligibility conditions in an e-procurement notice, requiring bidders to have existed for five years and be profit-making for three years, are unreasonably oppressive to a Micro, Small and
Whether a bid document's requirement for mandatory deposit of earnest money by all bidders amounts to an unreasonable condition in a writ petition challenging reserved category concessions.
1 provisions across 1 enactments
Praveen Baishya and Another
The State of Assam and Others
Ujjal Bhuayan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
