SHIBAJI KAR BHOWMIK Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Somik Deb, learned senior counsel, assisted by Mr. Pranabindu Chakraborty, learned counsel, appearing for the petitioner, Mr. Bidyut Majumder, learned Deputy S.G.I. appearing for the respondent-Union of India and Mr. Debalay Bhattacharya, learned senior counsel, assisted by Mr. Soumyadeep Saha, learned counsel, appearing for the respondents-University.

(2.) Petitioner approached this Court for rescinding the note at Annexure-5 as it appeared therefrom that though the petitioner was the lowest bidder in the bidding process for supply and installation of Cordless Collar Microphone, Wireless Handheld Microphone, Transmitter or Receiver, Speaker 50 Watts, Mi but the respondent No.5 who was shown to be the third lowest tenderer has been granted the work order for procurement of those articles. Though the work order was not annexed to the writ petition, but this Court directed the learned counsel representing the respondent No.3 to seek instructions and file a counter affidavit with supporting documents. The affidavit of the respondents No.3 and 4 in categorical terms states that the supply/contract order has been issued on 1/1/2024 in favour of the private respondent as the GeM portal automatically popped up the bid of private respondent with an MSE preference. Even if a non-MSE bidder is selected as L1 and MSE price quoted is L1 + X% (X as defined in bid range), the order has to be placed in favour of the bidder having MSE preference at the same rate as L1. Copy of the screen shot and bid document are enclosed as Annexure-B and C, copy of the reference MSE preference screen shot from GeM is annexed as Annexure-D and copy of the reference screen shot regarding MSE not applied by the petitioner is at Annexure-E.

(3.) Mr. Somik Deb, learned senior counsel assisted by Mr. Pranabindu Chakraborty, learned counsel for the petitioner, has countenanced the stand of the respondents No.3 and 4 by referring to the MSE certificate at Anneuxure-3 and 4 which refers to one Udyam Registration Number and the name of the petitioner. Petitioner's manufacturer is Ahuja whose products were being quoted in the bid by the petitioner. Learned senior counsel for the petitioner has further referred to Clause-5 of the bid document which, according to him, restricts purchase preference to MSEs who are traders. They are excluded from the purview of Public Procurement Policy for Micro and Small Enterprises in respect of bid for services. Learned senior counsel for the petitioner submits that petitioner as well as the private respondent both are traders and not manufacturers. Therefore, no case of MSE purchase preference could be made out in favour of the private respondent. It is also submitted that all relevant documents relating to MSE registration were duly submitted with the bid document by the petitioner which have not been duly uploaded by the respondent-employer. Learned counsel has also referred to the provisions of Sec. 2(e) and (g) and Sec. 11 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSME Act, 2006, for short) in order to submit that the MSE procurement preference policy provides that such preference is to be given for enterprises which not only produce but provide the necessary goods and services sought to be procured. Mere supply or trading of MSE product would not entitle anyone to claim purchase preference as an MSE. It is submitted that petitioner has hugely suffered on account of grant of procurement order in favour of respondent No.5 though he had quoted the highest rate. Therefore, the impugned note reflected in the GeM Portal which qualified respondent No.5 as the successful bidder and in whose favour procurement order has been placed should be set aside.