S.G.F. Infra Private Limited Vs the Union of India and 10 Ors.

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GAHC010260512025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6694/2025

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S.G.F. INFRA PRIVATE LIMITED

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A COMPANY REGISTERED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT H.NO. F-961 GURAH BAKSHI NAGAR, JAMMU, THROUGH ITS AUTHORIZED SIGNATORY NAMELY SRI SANTOSH SAHANI, AGED ABOUT 27 YEARS, SON OF LATE SH. HARILAL SAHANI, RESIDENT OF 46, SINDURIALI PATH, BATORI 24, NABIN NAGAR, ZOO ROAD, PO- ZOO ROAD, DISTRICT- KAMRUP METRO, STATE ASSAM, PIN CODE- 781024

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VERSUS

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THE UNION OF INDIA AND 10 ORS THROUGH SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, SOUTH BLOCK,NEW DELHI-110011

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2:DIRECTOR GENERAL BORDER ROADS ORGANIZATION SEEMA SADAK BHAVAN RING ROAD DELHI CANTT NEW DELHI- 110010

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3:ADDITIONAL DIRECTOR GENERAL BORDER ROADS ORGANIZATION (EAST) GUWAHATI ASSAM- 900885 C/O 99 APO

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4:CHIEF ENGINEER PROJECT UDAYAK DOOM DOOMA TINSUKIA ASSAM C/O 99 APO

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PIN- 931715

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5:THE TECHNICAL EVALUATION COMMITTEE REPRESENTED BY THE CHIEF ENGINEER PROJECT UDAYAK DOOM DOOMA TINSUKIA ASSAM C/O 99 APO PIN- 931715 6:THE SUPERINTENDING ENGINEER (CIVIL) CUM PRESIDING OFFICER TECHNICAL EVALUATION COMMITTEE HQ CE(P) UDAYAK DOOM DOOMA TINSUKIA ASSAM C/O 99 APO PIN- 931715 7:THE EXECUTIVE ENGINEER (CIVIL) CUM MEMBER TECHNICAL EVALUATION COMMITTEE HQ CE(P) UDAYAK DOOM DOOMA TINSUKIA ASSAM C/O 99 APO PIN- 931715 8:THE ASSISTANT ACCOUNTS OFFICER (AAO) CUM MEMBER TECHNICAL EVALUATION COMMITTEE HQ CE(P) UDAYAK DOOM DOOMA TINSUKIA ASSAM C/O 99 APO PIN- 931715 9:COMMANDER 48 BRTF (BORDER ROADS TASK FORCE) C/O 99 APO PIN- 930048 10:OC 1444 BCC C/O 99 APO PIN- 931715

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11:M/S GRRB ASSOCIATES HOLDING NO.06/623 GYAN VILLA

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MANAV KALYAN ROAD OPPOSITE BRAHMA KUMARI ASHRAM LANE PO- TIUNSUKIA (ASSAM)- 78612

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BEFORE

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HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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For the Petitioner(s) : Mr. R. Pant, Senior Advocate Mr. K. Kalita, Advocate

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For the Respondent(s) : Mr. H. Gupta, CGC Ms. T. Gupta, Advocate Mr. B. Pathak, Advocate

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Date on which judgment is reserved : NA

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Date of pronouncement of judgment : 12.03.2026

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Whether the pronouncement is of the Operative part of the judgment? : NA Whether the full judgment has been Pronounced? : Yes

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: Yes

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. R. Pant, the learned Senior Counsel assisted by Mr. K. Kalita, the learned counsel appearing on behalf of the Petitioner. Mr. H. Gupta, the learned CGC appears on behalf of the official Respondents and Ms. T. Gupta and Mr. B. Pathak, the learned counsels appear on behalf of the Respondent No.11.

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PREFACE

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The present writ petition has been filed challenging the rejection of the Petitioner’s technical bid vide the approval of the Competent Authority dated 07.11.2025. The Petitioner also assails the declaration of the Respondent No.11 as the L1 bidder and seeks for a writ of Mandamus directing the Respondent Nos.1 to 8 to declare the Petitioner as technically qualified and open the financial bid of the Petitioner.

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BRIEF FACTS OF THE CASE

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The Director (Contracts) of the Respondent Organization issued a Notice Inviting Tender for design and construction of 120 (80+40) meter span major permanent bridge with intermediate pier with steel superstructure (through type) on open foundation over Peepani-II Nallah at Km.32.200 (including casting of deck slab, wearing coat, kerbs and hand rails, drainage spout, procurement and fixing of bearing and expansion joints, painting, load testing completed in all respects) on Hayuliang-Metaliang-Chaglohagam Road under 1444 BCC/48 BRTF under Project Udayak in Arunachal Pradesh. Various dates were mentioned in the Notice Inviting Tender. In terms with the said Critical Date Sheet incorporated in the Notice Inviting Tender, the submission of the bid started on 2^nd of July, 2025 at

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1200 hours and the last date for submission of the bid was 16^th of July, 2025 at 1200 hours. The Technical Bid was to open on 17^th of July, 2025 at 1200 hours and the opening of the Financial Bid was to be informed subsequently.

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This Court finds it pertinent to take note of Clause 11 of the Notice Inviting Tender which is reproduced herein under:-

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“11. Earnest money is not required to be attached with tender by the valid enlisted contractor with BRO who have submitted standing security deposit and MSME registered firms as per Rule 170 (i) of GFR 2017, but it is required from other contractors to be attached (Scanned copy) with Technical Bid for Rs.15,00,000.00 (Rupees Fifteen Lakh Only) in the shape of call Receipt/Term Deposit Receipt/Special Term Deposit Receipt in favour of Chief Engineer Project Udayak, C/o 99 APO obtained from any Nationalized/Scheduled Bank and having maturity/validity period 90 days more than the validity period of his offer.”

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From a perusal of the above quoted Clause, it is seen that the earnest money is not required to be attached with tender by a valid enlisted contractor with BRO who has submitted standing security deposit and MSME registered firm as per Rule 170 (i) of the GFR, 2017. However, for other bidders, they are required to attach with the Technical Bid the Earnest Money Deposit for Rs.15,00,000/- in the shape of call receipt / term deposit

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receipt / special term deposit receipt favouring the Chief Engineer Project Udayak, C/o 99 APO obtained from a Nationalized / Scheduled Bank and having maturity / validity period of 90 days more than the validity period of his offer.

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This Court also finds it pertinent to take note of Clause 20 of the Notice Inviting Tender which stipulates that the scan copy of the original instrument in respect of earnest money, integrity pact duly signed on each page by the bidders as well as other are required to be uploaded along with the Technical Bid. The hard copies of all such documents should reach the Tender Inviting Authority in the sealed envelope within five days of the

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bid submission end date i.e. on or before 21^st July, 2025. In other words, the hard copies of the documents which are uploaded are required to be submitted within five days of the bid submission end date.

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At this stage, this Court finds it relevant to refer to Rule 170(i) of the GFR, 2017 which is in relation to Bid Security:-

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Rule 170 Bid Security

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(i) To safeguard against a bidder's withdrawing or altering its bid during the bid validity period in the case of advertised or limited tender enquiry, Bid Security (also known as Earnest Money) is to be obtained from the bidders except Micro and Small Enterprises (MSEs) as defined in MSE Procurement Policy issued by Department

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of Micro, Small and Medium Enterprises (MSME) or are registered with the Central Purchase Organisation or the concerned Ministry or Department [or Startups as recognized by Department for Promotion of Industry and Internal Trade (DPIIT)]. The bidders should be asked to furnish bid security along with their bids. Amount of bid security should ordinarily range between two percent to five percent of the estimated value of the goods to be procured. The amount of bid security should be determined accordingly by the Ministry or Department and indicated in the bidding documents. The bid security may be accepted in the form of [Insurance Surety Bonds] Account Payee Demand Draft, Fixed Deposit Receipt, Banker's Cheque or Bank Guarantee [including e-Bank Guarantee] from any of the Commercial Banks or payment online in an acceptable form, safeguarding the purchaser's interest in all respects. The bid security is normally to remain valid for a period of forty-five days beyond the final bid validity period.”

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A perusal of the above quoted Rule 170(i) of the GFR, 2017 would reveal that exemption from submission of the Bid Security also known as the Earnest Money is only available to Micro and Small Enterprises as defined in MSE Procurement Policy issued by the Department of Micro, Small and Medium Enterprises or are registered with the Central Purchase Organization or concerned Ministry or Department (or Startups as recognized by the Department for Promotion of Industry and Internal Trade). In other words, a Medium Enterprise in terms with Rule 170(i) of

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the GFR, 2017 cannot avail the benefit of EMD exemption. This aspect is important as would be seen in the later stages of the present judgment.

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In the backdrop of the above, it is relevant to take note of that the Petitioner along with 11 other bidders submitted bids pursuant to the Notice Inviting Tender. The Board of Officers of the Respondent Organization prepared a comparative statement of the Technical Bids submitted by the Bidders after making necessary evaluation and recommended that only two bidders, i.e. the Respondent No.11 and one M/S Bhartia Infra Projects Limited were technically competent to participate in Stage 2 bidding, i.e. for opening of the Financial Bid. The remaining 9 bidders were not recommended which included the Petitioner. The reason for not recommending the bid of the Petitioner by the Board of Officers and opining that the Petitioner’s firm was disqualified was for the following reasons:-

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“EMD exemption limitation is Rs.11,00,000.00 only as the Firm Enlisted with BRO vide Index No.S-68 at HQ DGBR. In this tender EMD sought for Rs.15,00,000.00. The firm has not submitted that additional Security amount against EMD. Hence the firm is disqualified .”

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The reason therefore for the Board of Officers to hold the Petitioner’s bid not technically competent was that the Petitioner

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had already a standing security deposit of Rs.11,00,000/-, and as such the Petitioner’s Earnest Money Deposit was short by Rs. 4,00,000/- inasmuch as Rs. 15,00,000 was the Earnest Money Deposit which was required to be submitted.

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This Court also finds it pertinent to take note of that for the same reason, there were two other bidders who were rejected, i.e. M/s Garg & Garg Co. and M/s Mech Fab Engineering Industries Pvt. Ltd.

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Before proceeding further, it is pertinent to take note of the Bid Document which was submitted by the Petitioner. The bid which was required to be submitted online had a specific column for “EMD Exemption”. The Petitioner while submitting the online bid insofar as the EMD Exemption only referred to the BRO enlistment. This aspect is apparent from Annexure-1 to the affidavit-in-opposition filed by the Respondents dated 27.01.2026.

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The record further reveals that the Petitioner on coming to learn that its technical bid was not recommended by the Board of Officers on 09.09.2025, submitted a representation on 12.09.2025 stating inter alia that the Petitioner's firm is registered with the MSME under relevant category and their MSME registration certificate was attached at Pages 30 & 31 with

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the file named "2Alldocuments1_compressed.pdf" and also at Pages 13 and 14 of the file named "1_certificates.pdf". The Petitioner requested by the representation dated 12.09.2025 that this document was overlooked by the Respondent Organization, and therefore, requested that the Petitioner's firm should be declared technically qualified and eligible for Financial Bid opening.

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On the receipt of the said communication as would appear from the additional affidavit filed by the Respondent No.4 on 20.02.2026, the Q-bid was not opened which was otherwise fixed on 16.09.2025. It is also seen that on 22^nd of September, 2025, the Director (Contracts) had issued a communication to the Petitioner stating inter alia that during the scrutiny of the Q- bid, it was found that the Petitioner's firm had not submitted the declaration as per Rule 170 (iii) of the GFR, 2017 and as per Clause 11 of the NIT regarding exemption sought due to MSME registration against EMD for Rs.15,00,000/-. It was also mentioned that as per the Rule 170(i) of the GFR, 2017, the Bid Security also known as the Earnest Money, is to be obtained from the bidders, except micro and small enterprises. However, the uploaded MSME certificate by the Petitioner's firm was for medium enterprise; hence, exemption of the EMD was not applicable. It was further mentioned that the firm of the

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Petitioner was therefore disqualified for the subject bid.

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The record further reveals that the Petitioner again submitted another representation on 23.09.2025 stating inter alia that the Government of India Notification No.1346 dated 21.03.2025 in the Gazette of India had changed the categorization of the medium, micro and small enterprises and as per the revised Notification and the change in the guidelines, the categorization of the Petitioner Company as per the MSME is now small and not medium. It was further mentioned that the same could be verified on the portal of the MSME. The Petitioner therefore requested that in order to avoid unnecessary wastage of time, the Petitioner's firm should be declared technically responsive, otherwise the Petitioner would have no other option but to seek legal recourse. The Petitioner enclosed the Notification dated 21.03.2025 issued by the Ministry of Micro, Small and Medium Enterprises.

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A perusal of the said Notification reveals that the categorization of micro, small and medium enterprises which existed as on 26^th of June, 2020 was changed. For example, an enterprise where the investment in plant and machinery or equipment does not exceed Rs.2 crores 50 lakhs and turnover does not exceed Rs.10 crores was brought within the ambit of a

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“micro enterprise”; an enterprise where the investment in plant and machinery or equipment does not exceed Rs.25 crores and the turnover does not exceed Rs.100 crores were brought within the ambit of a “small enterprise”. It is also pertinent to mention that an enterprise where the investment in plant and machinery or equipment does not exceed Rs.125 crores and turnover does not exceed Rs.500 crores was brought within the ambit of a “medium enterprise”.

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This Court further finds it pertinent to take note of that on 7^th of October, 2025, another communication was issued by the Director (Contracts) in reference to the Petitioner's representation dated 23.09.2025 and it was categorically mentioned that as per the Government of India Gazette Notification S.O.1364E dated 21.03.2025 and upon verification of the Petitioner's MSME on the Udyam registration portal, the Petitioner's certificate was showing as “small enterprise”. It was further mentioned that to be eligible for MSME renewal, the business must meet the criteria, i.e. annual update required and what were the consequences for not updating.

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The said communication dated 07.10.2025 is relevant inasmuch as, it appears that the Respondent Organization have sought from the Petitioner certain additional documents which

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were not conceivable as per Clause 20 of the Notice Inviting Tender. The Petitioner was asked to submit proof of the annual update details, i.e. latest Income Tax details duly verified by the CA and GST filing information uploaded in the Udyam registration portal for the financial year 2024-25 along with all supporting documents uploaded before the date of the NIT and also submit the hard copy of the MSME certificate issued to the Petitioner by the Udyam Registration Authority by 10^th of October, 2025 for further needful action. The said communication dated 07.10.2025 is reproduced herein under:-

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“SGF Infra Pvt Ltd Gurha Bakshi Nagar Jammu Birpur, Purmandal Morh Road, Bari Brahmana Email - [email protected]

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NAME OF WORK: DESIGN AND CONSTRUCTION OF 120 (80+40) METER SPAN MAJOR PERMANENT BRIDGE WITH INTERMEDIATE PIER WITH STEEL SUPERSTRUCTURE (THROUGH TYPE) ON OPEN FOUNDATION OVER PEEPANI-II NALLAH AT KM 32.200 (INCLUDING CASTING OF DECK SLAB, WEARING COAT, KERBS AND HAND RAILS, DRAINAGE SPOUT, PROCUREMENT AND FIXING OF BEARING AND EXPANSION JOINTS, PAINTING, LOAD TESTING COMPLETED IN ALL RESPECT) ON HAYULIANG-METALIANG-CHAGLOHAGAM ROAD UNDER 1444 BCC/48 BRTF UNDER PROJECT UDAYAK IN ARUNACHAL PRADESH STATE : TENDER ID 2025_BRO_716414_1

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Dear Sir,

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Reference your letter No SGF/7728 dated 12 Sep 2025.

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In this connection, it is intimated that as per Govt of India, Gazette Notification S.O. 1364 (E) dated 21 Mar 2025 and on verification of your MSME on Udyam Registration Portal, your certificate is showing as 'Small'

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enterprises.

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But, as per norms of MSME regulations, to be eligible for MSME renewal, your business must meet the following criteria updated every year:-

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(a) Annual update required:

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You must update your registration detail, including your latest Income Tax and GST filing information, on the Udyam portal at the end of every financial year. The update process is done online on the official Udyam Registration Portal.

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(b) Consequences of Not Updating:

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Failure to update your details can lead to the loss of access to benefits, schemes and tenders available to MSMEs.

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In view of above, it is requested to submit the proof of annual update details i.e. latest income tax details duly signed by CA and GST filing information uploaded on Udyam Registration Portal for the F/Y 2024-25 along with all supporting docs uploaded before the date of NIT and also submit the hard copy of MSME certificate issued to you by Udyam Registration Authority by 10 Oct 2025 for our further needful action please.”

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The Petitioner vide a communication dated 09.10.2025 referred to Point No.2 of the MSME Certificate which was issued to the Petitioner wherein it was mentioned that after completion of the process of registration, a certificate would be issued online. This communication was to indicate that the MSME Certificate is only issued online.

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The Petitioner further to the above, issued another communication dated 10.10.2025 thereby enclosing the latest MSME/Udyam Certificate for the year 2025-26, downloaded from

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the Udyam registration portal. A perusal of the said certificate reveals that for the year 2025-26, the Petitioner's enterprise was classified as “small” and the date of classification was on 01.04.2025.

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Pursuant thereto, the Respondents issued the impugned approval of the Competent Authority whereby the Petitioner was again held to be disqualified, but for different reasons from the reasons which were mentioned in the recommendation made by the Board of Officers dated 09.09.2025. The reasons for disqualification, as per the impugned Approval of the Competent Authority dated 07.11.2025 were:-

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“(a) Due to non producing hard copy MSME certificate of ‘Small’ Category.

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(b) Non submission of proof for uploading of updation of MSME Registration Authority. Hence disqualified.”

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The Petitioner, being aggrieved, therefore approached this Court by filing the present writ petition.

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The records reveal that vide an order dated 26.11.2025, this Court issued notice, but was not inclined to pass any interim direction. Be that as it may, it was observed at Paragraph No.16 of the order dated 26.11.2025 that any agreement entered into by the Respondent Authorities with the Respondent No.11 during

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the pendency of the writ petition, the same shall be subject to the outcome of the writ petition and the fact that this Court was not inclined to grant any interim directions on 26.11.2025, shall not create any equitable interest in favour of the Respondent No.11.

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The records further reveal that the Respondent No. 4 has filed an affidavit-in-opposition. The Respondent No.11 has also filed an affidavit-in-opposition. Various other pleadings have also been exchanged. It is however pertinent to take note of that the affidavit filed by the Respondent No.4 on 20.02.2026 wherein the reasons for disqualification of the Petitioner’s bid was elaborated. A perusal of paragraph No.3 of the said affidavit filed by the Respondent No.4 reveals that the Technical Bid was opened on 31.07.2025 and the Technical Evaluation Summary was uploaded on 09.09.2025. It is also mentioned that though the Schedule date of the Q-Bid opening date was on 16.09.2025, but the same was postponed on account of submission of the representation by the Petitioner and it was only on 07.11.2025 the Final Technical Evaluation Summary was uploaded and the Financial Bid was opened. It was further mentioned at paragraph No.4 that the Petitioner was disqualified on two independent and objective grounds, i.e. (i) failure to submit the prescribed EMD of Rs.15,00,000/-; and (ii) ineligibility to claim MSME exemption as

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the MSME certificate uploaded with the bid classified the Petitioner as “medium enterprise” which is not exempted under Rule 171 of the GFR, 2017. The Petitioner thereupon submitted a reply to the said additional affidavit on 25.02.2026.

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SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES

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Mr. R. Pant, the learned Senior Counsel appearing on behalf of the Petitioner submitted that a perusal of the impugned approval of the Competent Authority reveals that the Petitioner was disqualified on the ground of non-submission of the hard copy that the Petitioner was a small enterprise. The learned Senior Counsel submitted that the Petitioner was granted an opportunity by the Respondent Authorities vide a communication dated 07.10.2025 to submit the hard copy on or before 10^th of October, 2025. The Petitioner duly submitted on 09.10.2025 a reply stating inter-alia that even as per the Udyam Registration Authority and as mentioned in the MSME certificate, the certificate is issued online. The original MSME certificate downloaded from the portal on 5^th of March, 2021 and subsequent qua registration on 17^th of March, 2021 was enclosed. The Petitioner further mentioned that for the year 2024-25, the returns were not required to be submitted at that

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relevant point of time. Be that as it may, a clarification was issued on 28^th of September, 2021 by the Ministry of Micro, Small and Medium Enterprises wherein it was mentioned that as to which of the financial years are required to be taken for the purpose of registration in the Udyam Portal. The learned Senior Counsel for the Petitioner further submitted that on 10.10.2025, the Petitioner had downloaded a copy of the MSME Udyam certificate of the Petitioner for the year 2025- 26 and had also submitted the same. The learned Senior Counsel submitted that in that view of the matter, the reasons for which the Petitioner's bid was held to be technically disqualified appears to be a case of malice in law and non-application of mind. He further submitted that under such circumstances, this Court in exercise of the powers under Article 226 of the Constitution ought to interfere as it violates the mandate of Article 14 of the Constitution.

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Mr. H. Gupta, the learned counsel appearing on behalf of the Respondent Authorities submitted that the Petitioner herein at the time of submission of the bid did not claim exemption of the EMD on the basis of being an MSME enterprise. Apart from that at the time when the bid documents were uploaded and hard copy of the same were submitted, the Petitioner also knew that the Petitioner could not avail the EMD exemption inasmuch as,

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the certificate which was uploaded was a MSME Registration showing the Petitioner as a Medium Enterprise. Referring to Rule 170(i) of the GFR, 2017, the learned CGC submitted that the Earnest Money exemption is only available to micro and small enterprise and as the Petitioner herein was not a micro or small or claimed to be a micro or a small enterprise at that relevant point of time, the Petitioner therefore was disqualified. He further submitted that the Petitioner cannot be permitted to submit any further documents pursuant to the bid being submitted as the same would violate the mandate of the equality Clause. The learned CGC further submitted that the opportunity so given vide the communication dated 07.10.2025 was not in accordance with Clause 20 of the Notice Inviting Tender.

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Ms. T. Gupta, the learned counsel who appears on behalf of the Respondent No.11 submitted that the Petitioner having not claimed EMD exemption as an MSME and having only submitted an MSME certificate as a medium enterprise, the Respondent Authorities were justified in disqualifying the Petitioner as technically non-responsive. The learned counsel submitted that a conjoint reading of Clauses 11 & 20 of the Notice Inviting Tender would clearly show that not only the bidder has to be an enlisted contractor under the BRO, but also has to be a MSME as per Rule 170 (i) of the GFR, 2017 to be entitled to exemption. The learned

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counsel submitted that to be entitled to exemption as a MSME, there should be a claim for exemption which the Petitioner did not do so in as much as the Petitioner’s bid document which is at Page No.367 of the Paper Book would clearly show that the Petitioner only claimed EMD exemption on the basis of BRO enlistment and not on the basis of the MSME certificate. Apart from that, the learned counsel for the Respondent No.11 submitted the Petitioner knew very well that the Petitioner was not entitled to claim exemption and this aspect would be apparent from the fact that the Petitioner did not submit the MSME certificate showing it to be a small enterprise, rather submitted a certificate showing the Petitioner as a medium enterprise. The learned counsel submitted that the Petitioner at a later stage is trying to develop a case of exemption as a Small Enterprise by taking advantage of certain communications issued by the Director (Contracts) of the Respondent Organization. The learned counsel for the Respondent No.11 therefore submitted that the Respondent Authorities cannot deviate from essential conditions of the tender documents and more particularly Clause 20 of the Notice Inviting Tender whereby the bidders were to submit all documents through the online mode prior to the closing of the bid submission date and hard copies within 5 (five) days from the last date of submission of the bid. The learned

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counsel therefore submitted that the reasons for disqualification may not seem to be proper at the first glance, but the Petitioner under no circumstances can be permitted to be qualified as the Petitioner never claimed exemption under the MSME category at the first instance.

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ANALYSIS AND DETERMINATION

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This Court has given anxious consideration to the respective submissions and has also perused the materials on record.

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In the previous segments of the instant judgment, this Court had quoted Clause No.11 of the Notice Inviting Tender. This Court finds it pertinent to reproduce Clause 20 of the said Notice Inviting Tender herein under:-

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“20. The scanned copy of original instruments in respect of earnest money, Integrity Pact duly signed on each page by the bidder(s), and under taking regarding acceptance of tender conditions, Enlistment letter if firm is enlisted in BRO, EPFO, Registration letter, GST Registration and any other documents required to be submitted with respect to various conditions mentioned in the tender documents must be uploaded along with the technical bid. The Hard copies of all the documents should reach the tender Inviting Authority in the sealed envelope within 05 days of bid submission end date.”

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A conjoint reading of Clauses 11 & 20 of the Notice Inviting

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Tender would show that the earnest money is not required to be attached with the tender by a valid enlisted contractor with the BRO who had submitted standing security deposit and MSME registered firm as per Rule 170(i) of the GFR, 2017. However, in respect to others, there is a requirement of submission of the security deposit of Rs.15,00,000/-A further perusal of Clause 20 in the context of Clause 11 would show that the documents pertaining to the earnest money or the original instruments pertaining to the earnest money had to be uploaded and hard copies of the same are required to be submitted within five days from the bid submission end date. The bid submission end date

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was on 16^th of July, 2025. Under such circumstances, all bidders including the Petitioner, if they claim for exemption from deposit of the Earnest Money Deposit were required to submit the documents claiming for exemption of the Earnest Money Deposit by uploading the same along with the bid and further within five days thereafter, the hard copy/copies of such documents are required to be submitted. Further to that, those bidders who do not claim for exemption are required to submit the Earnest Money Deposit in the form stipulated at Clause 11 of the Notice Inviting Tender by uploading the same and thereupon within five days from the bid submission end date to submit the hard copy.

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The bid documents of the Petitioner which have been placed

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before this Court by Mr. H Gupta, the learned CGC clearly shows that at the time of submission of the bid, the Petitioner though claimed EMD exemption, but did so on the basis of the BRO enlistment as the same is apparent from the column relating to EMD Exemption and with the file name '3-BRO-Enlistment.pdf'. It is also seen that various other documents were also uploaded by the Petitioner under the heading 'Bidders other important documents'.

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A perusal of the representation submitted by the Petitioner on 12.09.2025 reveals that the Petitioner had uploaded the MSME registration certificate under the headings “Bid document” and “Bidders other important documents”. It is an admitted case of the Petitioner that the MSME certificate which was uploaded would show that the Petitioner as a medium enterprise. Applying Rule 170(i) of the GFR, 2017 as quoted hereinabove, a medium enterprise would not be entitled to claim exemption of the Earnest Money Deposit in as much as it is only a micro enterprise or a small enterprise who would be entitled to the exemption of the Earnest Money Deposit in terms with Rule 170 (i) of the GFR, 2017.

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This Court finds it very relevant to take note of that in the recommendations which were made by the Board of Officers on 09.09.2025, the Petitioner along with two other bidders, namely

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M/s Garg & Garg Co. and M/s Mech Fab Engineering Industries Pvt. Ltd. were disqualified on the same ground that the Petitioner along with the said two firms claimed EMD exemption of Rs.15,00,000/- but as per their BRO enlistment the limit was Rs.11,00,000/- and they did not submit the additional security amount. The Petitioner thereafter on coming to learn that the Petitioner was not recommended to be qualified by the Board of Officers in the compilation made of the Bidders on 09.09.2025, submitted a representation dated 12.09.2025 stating inter alia that the Petitioner being an MSME was entitled to EMD exemption. At that stage also the Petitioner did not inform that it was a small enterprise and not a medium enterprise.

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This Court at this stage finds it very relevant to take note of the Notice Inviting Tender wherein the Critical Date Sheet was incorporated. The Critical Date Sheet reveals that the Notice Inviting Tender was issued on 24.06.2025 and on the very date, the clarification could have been sought for. The clarification was permissible uptil 1^st of July, 2025. There was also a scope for a pre-bid meeting to be held on 2^nd of July, 2025 uptil 1200 hours and the bid submission date also started on 2^nd of July, 2025 after 1200 hours. Nothing has been placed before the Court to show that the Respondent Authorities can entertain

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representations subsequent to the submission of the closing date of the bid. Be that as it may, the Respondent Authorities entertained not only one representation, but two representations from the Petitioner and further permitted the Petitioner to submit further documents in addition to what was permissible in terms with Clause 20 of the Notice Inviting Tender.

¶129

It further appears from the records that the Respondent Authorities initially on 22.09.2025 rejected the Petitioner's representation on the ground of non-compliance to Rule 170(iii) of the GFR, 2017 and further in terms with Clause 11 of the Notice Inviting Tender on the ground that the Petitioner had uploaded the MSME Certificate claiming itself as medium enterprise and as such, the question of permitting EMD exemption was not permissible.

¶130

The records also show that the Petitioner filed another representation was on 23.09.2025. However, surprisingly, the Director (Contracts) of the Respondent Organization not only permitted the Petitioner to submit further documents beyond what was permissible in terms with Clause 20 of the Notice Inviting Tender but also mentioned that the Petitioner was shown as a Small Enterprise in the Udhayam Portal. This communication dated 07.10.2025 issued by the Director (Contracts) of the Respondent Organization led the Petitioner to submit two

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communications. One on 09.10.2025 stating inter alia that the MSME Certificate is issued online and the second communication dated 10.10.2025 whereby the Petitioner submitted the hard copy of the MSME Certificate wherein for the year 2025-26, the Petitioner was shown as a Small Enterprise.

¶133

The records reveal that though the Director (Contracts) permitted the Petitioner to submit additional documents and the Petitioner submitted the MSME Certificate but the Competent Authority did not accept the same resulting in rejection of the Petitioner’s technical bid for not producing the hard copy of the Petitioner’s MSME Certificate as Small Enterprise and that the Petitioner did not submit the proof for uploading of updation of the MSME Authority.

¶134

Two aspects therefore come to light from the conduct of the Respondents. One, the Director (Contracts) of the Respondent Authorities had permitted the Petitioner to submit additional documents vide the communication dated 07.10.2025 and the Petitioner having submitted the same was not accepted by the Competent Authority. The said aspect shows that there appears to be some form of inconsistency amongst the Respondent Organization inasmuch as the Director (Contracts) permits the Petitioner to submit additional documents whereas the Competent Authority do not consider the same and holds that

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the Petitioner did not submit the hard copy of the document of MSME registration as Small Enterprise.

¶137

The second aspect is that the Respondent Organization or more particularly, the Director (Contracts) have changed the Rules of the game at a subsequent stage thereby permitting the Petitioner to file additional documents though the same was contrary to Clause 20 of the Notice Inviting Tender. In the previous segments of the instant judgment, this Court had taken note of that the Petitioner along with two other bidders were held to be not qualified on the same ground that they claimed EMD exemption on the basis of BRO Enlistment and they were short by Rs. 4,00,000/- as their security was only Rs. 11,00,000/and the required EMD was Rs. 15,00,000/-. Under such circumstances, to permit only the Petitioner to file additional documents renders such action violative of Article 14 of the Constitution of India.

¶138

It is the opinion of this Court that the present lis is on account of the inconsistent stands taken by the officers of the Respondent Organization i.e. the Director (Contracts) permitting the Petitioner to file additional documents whereas the Competent Authority who took the decision on 07.11.2025 not accepting the documents. It is also the opinion of this Court that if the Respondent Organization had permitted the Petitioner to

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submit the additional documents and thereupon the Petitioner had submitted the documents i.e. the MSME Certificate that the Petitioner was a Small Enterprise, the impugned approval dated 07.11.2025 rejecting the Petitioner’s bid cannot stand the scrutiny of law. At the same breath, it is also pertinent to mention that permitting the Petitioner only to submit additional documents violates the mandate of Article 14 of the Constitution of India.

¶141

The impugned approval dated 07.11.2025 is therefore required to be interfered with.

¶142

Accordingly, this Court therefore disposes of the instant writ petition with the following observations and directions:-

¶143

(i) The impugned approval of the Competent Authority dated 07.11.2025 is set aside and quashed.

¶144

(ii) The Respondent Authorities are directed to re-evaluate the Technical Bids of the bidders who submitted their bids pursuant to the Notice Inviting Tender dated 24.06.2025 from the stage of the recommendation made by the Board of Officers on 09.09.2025.

¶145

(iii) The Respondent Organization is directed to take steps for removing the inconsistent stand amongst the officials of the Respondent Organization.

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(iv) In the circumstances, the Respondent Organization is of the opinion that further opportunities should be given to the bidders who have not been recommended for opening of their financial bids, then opportunities have to be provided to all the bidders who have not been recommended by the Board of Officers. Picking only one bidder to submit additional documents thereby not granting opportunity to the others would be violation of Article 14 of the Constitution of India.

¶148

(v) This Court further observes and directs that all consequential actions so taken on the basis of the impugned approval of the Competent Authority dated 07.11.2025 are also set aside and quashed thereby leaving the Respondent Organization to act in terms with Clauses (ii), (iii) and (iv) herein above.

¶149

(vi) There shall be no order as to costs.

¶150

JUDGE

¶151

Digitally signed by Pradip Kumar Kalita Pradip Kumar Kalita Date: 2026.03.19 10:50:54 +05'30'

¶152

Comparing Assistant

S.G.F. Infra Private Limited v. the Union of India and 10 Ors.

Case brief

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S.G.F. Infra Private Limited v. the Union of India and 10 Ors.

Case brief

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What the court decided

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