ESMARIO EXPORT ENTERPRISES Vs. UNION OF INDIA

JUDGEMENT

(1.) Complaining that Respondents 1 and 2 - Union of India and Government e-marketplace (GeM), Ministry of Commerce and Industry had conducted Bid No. GEM/2019/B/297062, dated 27.07.2019 contrary to the bid conditions and without providing equal opportunity in the bidding process, the petitioner approached this Court seeking a mandamus to set aside the declaration of Respondent No. 5 as L1.

(2.) The brief facts are: The petitioner is a company involved in the business of sales and service of Out Board Motor for Boats, Marine Accessories, different types of Boats and allied activities and it is a regular supplier to various government departments apart from defence establishments. The 2nd respondent is a government e-market place (GeM) of Ministry of Commerce primarily engaged in procurement of different goods and services required by the government itself and other Public Sector Undertakings. The bid documents of the government departments and Public Sector Undertakings would be put up on the website www.gem.gov.in. Normally, the procedure followed by the GeM portal is, in terms of the notifications, after the technical evaluation by the department, and after identification of the least-quoted price among the technically qualified bidders, it notifies the same as Reference Price for the purpose of Reverse Auction (RA) on GeM's website specifying the date and time on line with rules for RA. In the RA procedure, the bidders will have to make counter offers, for which, normally, the minimum variation would be 0.1 to 10% of the Reference Price and if the bid is made 15 minutes prior to RA end time, RA would be extended 15 minutes automatically for others to make bid.

(3.) The 1st respondent sought to procure 465 Out Board Motors through RA Process by posting the requirement on GeM portal on 27.07.2019 with Bid No. GEM/2019/B/297062. Along with the specified technical specifications, EMD to be paid was notified as Rs.52,63,707/-. EMD is exempted for firms registered under the 3rd respondent for tendered items subject to the condition that such registration is current and valid. The petitioner paid the EMD and submitted its final bid @ Rs.3,28,500/- per unit totalling to Rs.15,27,52,500/- for 465 units. The bid was to start on 08.08.2019 at 18:07:41 and to end at 11.00 A.M. on 13.08.2019. The petitioner along with the 5th respondent and two others was declared to be technically qualified on 08.08.2019. Further, the petitioner's quoted price was declared to be the Reference Price for conducting the RA. Having come to aware that the technically- qualified bidders have not paid the EMD, on 12.08.2019, the petitioner raised an objection that the 5th respondent and others were wrongly exempted from paying the EMD as exemption is provided only for the units registered with NSIC for the tendered items, under para 12 of the Buyer Specific Additional Terms and Conditions, as notified. The petitioner also raised the objection that the 5th respondent and others were only traders of tendered items and not registered with NSIC for manufacturing of such items. The objections of the petitioner were registered on GeM portal with Ticket No.1722442, however, there was no response. Six months earlier to the present tender, the petitioner had raised similar query with respect to exemption of EMD and tender process was cancelled and reissued by the 2nd respondent.