Anoop V. Mohta, J.

1. Rule. Rule made returnable forthwith. Heard finally by consent of all the parties in view of the urgency, so expressed.

2. Petitioners being an Engineering Procurement and Construction (“EPC”) Contractor for designing, installation and service of firefighting and detection systems have challenged the action of Respondent No.2 a Public Sector Undertakings (“PSU”), Nuclear Power Corporation of India Limited (“NPCIL”), who carries on the business of designing, constructing, commissioning and operating nuclear and atomic power plans and nuclear power reactors and who awarded the contract to Respondent No.3 Technico India Private Limited (“TIPL”) which is a company/an enterprise registered under the Micro, Small and Medium Enterprises Development Act, 2006 (“Micro Act”), which carries on the business of manufacturing of parts for manufacturing firefighting and fire protection equipment.

3. The basic backgrounds :-

On 26th March, 2012, Public Procurement Policy for Micro and Small Enterprises Order, 2012 (The Policy), published in Official Gazette. Section 6 of the Policy provides that a L2 MSE bidder will be entitled to match L1 price bid by a non-MSE bidder and shall be allowed to supply up to 20% of the total tendered value. On 1st April, 2015, the policy issued by Respondent No.4, is brought into force.

4. Respondent No.3 is registered with the National Small Industries Corporation (“NSIC”) as a MSE (the enterprise). The NSIC Registration has been issued only in respect of Fabricated Hose Cabinet, Y-Strainer, basket Strainer, MS Tank (air vessel), Fabricated MC Point, Nozzle, Deluge Value and Fabricated piping ring for water spray system, under the Fire Fighting System category.

5. Respondent No.2, on 19th October, 2016, floats Tender bearing number CMM/HMP/23-70-10-087 for firefighting and detection system for its two plants.

6. On 17th February, 2017, a letter issued by Respondent No.2 to Petitioner No.1 informing it that the Petitioner was technically complete and qualified for the opening of the price bid of the Tender.

7. Office Memorandum and Frequently Asked Questions (“FAQs”) annexed thereto prepared and circulated on 24th October, 2016 by Respondent No.4 to the Ministries/Departments/PSUs for effecting implementation of the Policy.

8. Price bids in respect of the Tender were opened on 22nd February, 2017 and Petitioner declared as L1 (i.e. the lowest bidder) with a price bid of Rs. 21,81,45,011/-and Respondent No.3 was declared as L2 with a substantially higher price bid of Rs. 23,19,75,000/-. 4 of 53

9. On 2nd March, 2017 / 25th March, 2017, Petitioner addressed a letter to Respondent No.2, inter alia acknowledging that it had been found to be technically compliant and had also been declared as the lowest bidder (i.e. L-1), and requested Respondent No.2 to issue Letter of intent to the Petitioner.

10. On 18th April, 2017, letter addressed by Respondent No.2 to Petitioner No.1 inter alia conveying to Petitioner No.1 that Respondent No.3, being a purported MSME, had agreed to match Petitioner No.1's L-1 price for the Tender and on account of these facts, Respondent No.3 intended to award the Tender to Respondent No.2.

11. On 29th April, 2017, in response to the aforementioned letter dated 18th April, 2017, the Petitioner, through its advocate addressed a letter informing Respondent No.2 that in the case of M/s. Shree Gee Enterprise Vs. Union of India and Anr. (Writ Petition (C)No.7201 of 2015 filed before the Hon'ble Delhi High Court) the Counsel appearing for Respondent No.1 admitted that the Policy did not apply to tenders that are in the nature of works contracts.

The nature of work - work contract or sale of goods :

12. The NPCI invited the tender of following nature.

“On or about 19th October 2016, Respondent No.2 floated a Tender bearing number CMM/HMP/23-70-10-087 for Design and Engineering, Manufacture, Procurement, Supply, seismic qualification/testing, Inspection, examination, testing, Erection