IMPORTANT POINT
Start-ups are exempt from prior turnover and experience in public procurement but must meet quality and technical specifications; failure to do so justifies bid rejection.

ORDER :

M.Nagaprasanna, J. - The petitioner is before this Court calling in question the Order/decision of the respondent No.2-Bharat Heavy Electricals Limited ('BHEL' for short), rejecting the bid submitted by petitioner pursuant to a tender notification for the purpose of 'design, supply and assembly of Floating System and Associated Anchoring and Mooring for Development of 300 MW AC capacity Floating Solar Power Project at Rengali Reservoir at Angul District in the State of Odisha.

2. Heard Sri. Parashuram A.L. Advocate for petitioner and Sri. Keerti Kumar D. Naik, advocate for respondent Nos.1 and 2.

3. The petitioner claims to be a partnership firm established in the year 2020 and is recognized as a Start-Up by the Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry, Government of India. Petitioner also claims to have registered under the provisions of Micro, Small and Medium Enterprises Development Act, 2006. The 2nd respondent-BHEL issues a notice inviting tender on 24.08.2023 for the afore-quoted work and then invites all the vendors for a pre-bid meeting for the 'Design, Supply and Assembly of Floating System'. The petitioner is also one of the participant in the pre-bid meeting held by the BHEL with all intending tenders. Pursuant to the pre-bid meeting, petitioner submits his tender on 31.08.2023 and 01.09.2023. The technical bid of the petitioner comes to be rejected by the respondent No.2-BHEL in terms of the impugned Order dated 10.09.2023. It is this rejection that has driven the petitioner to this Court in the subject petition.

4. Learned counsel appearing for the petitioner -Sri. Parashuram, would submit that rejection of technical bid of the petitioner is contrary to law, as it is a Start-up and it is exempted from prior turn over and prior experience in terms of clause 58 of tender document. He submits that rejection is erroneous as petitioner had purchased floats from one Chinese entity by name Sungrow, which was permissible for the petitioner to do so, in terms of clause 8 of the tender.

Learned counsel submits that the rejection is on the face of it contrary to the tender document and therefore, merits interference at the hands of this Court.

5. Per contra, the learned counsel appearing for the respondent Nos.1 and 2-Sri. Keerti Kumar D. Naik, would submit that the petitioner, in terms of clause 8 had purchased the floats from the Chinese entity by name Sungrow. It is the submission that BHEL corresponds with Sungrow and gets to know that the petitioner had not been authorized by Sungrow, as Sungrow, the Chinese entity had itself bid, as a joint bid with another entity. Therefore, the bid of the petitioner comes to be rejected and no fault can be found with same.

6. Learned counsel for the petitioner contends that he is now caught between Sungrow and BHEL. The BHEL could not have behind his back communicated with Sungrow and scored the said communication with regard to authorization. He submits that there is no requirement of authorization and he may be permitted one more opportunity to participate in the tender.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

8. The aforenarrated facts are not in dispute. Petitioner being a Start-up, is a matter of record. Notice inviting tender comes to be issued by BHEL for the following purpose:

"Subject: Tender invitation to Enter into Pre- Bid Tie-up for Design, Supply and Assembly of Floating System and Associated Anchoring & Mooring for development of 300MW AC Capacity Floating Solar Power Project at Rengali Reservoir at Angul district in the state of Odisha."

The petitioner participates in the tender. The technical bid of the petitioner comes to be rejected, the tenability of such rejection is what requires consideration at the hands of this Court.

9. For resolution of the issue in the lis, it is necessary to notice certain clauses in th