Adherence to the 'Make In India' policy and the impact of violating it on the tender process.

JUDGMENT

S.V.Gangapurwala, J. - Both these Writ Petitions are based on similar set of facts and involve common issues, to avoid rigmarole are decided by common judgment.

2. The eligibility of non-local suppliers to participate in the Request for Proposal (RFP) issued by the respondent-Bank for supply, installation and maintenance of 1900 Cash Recycler Machines is the subject matter of challenge in the present petition.

3. Petitioners are Indian manufacturers and suppliers of Cash Recycler Machines (CRMs) and have raised objection to the tender condition permitting non-local manufacturers and suppliers to participate in the tender process. Eligibility of non-local suppliers is essentially challenged on the ground that the same is in contravention of the 'Make In India' Order dated 16.09.2020, General Financial Rules, 2017 and Manual for Procurement of Goods, 2022. Petitioners have therefore challenged the RFP, as well as, the entire bidding process conducted by respondent no.1.

4. Petitioner in Writ Petition (Lodg.)No. 8205/2023 has been adjudged H-1 in the bidding process and its bid is accordingly rejected by e-mail dated 21.03.2023, which is challenged by it. For the sake of convenience, petitioner in Writ Petition (L) No. 8205/2023 is referred in the judgment as Petitioner-NCR.

5. Petitioner in Writ Petition (Lodg.) No. 8490/2023, is found L-1 amongst Class-II Suppliers, and has been granted an opportunity to match the L-1 price for the purposes of being awarded 50% of the order. Though it has been permitted to participate in the Reverse Auction Process, it is aggrieved by the action of the respondent-Bank in permitting non-local suppliers to participate in the bidding process. In short, it desires ousting of non-local suppliers from the bidding process, so that it does not have to match the L-1 price for securing 50% of the order. It has accordingly set up a challenge to the Reverse Auction Process conducted by respondent no.1 and has sought a relief for invitation of price negotiation as per Clause-47.1 of the RAP. Petitioner in Writ Petition (L) No. 8490/2023 is referred in the judgment as Petitioner-Hitachi.

6. Appearing for Petitioner-NCR, Mr. Kambhatta the learned senior advocate would submit that, 'Make In India' order is mandatory and binding on the respondent-Bank. That under the 'Make In India' Order, only Class-I and Class-II local suppliers are eligible to bid in the procurement undertaken by procuring agencies, except where GTE is issued. That the present RFP is not a GTE, as its value is less than Rs.200 crores. That the reference price shown in the bidding portal is Rs.174,92,47,369/- which demonstrates that the RFP is not a GTE. Even if estimated cost is assumed to be over Rs.200 crores, the RFP still does not qualify as GTE as it does not comply with the mandatory requirements in the Manual for Procurement of Goods, 2012 since (i) RFP was not published on Central Public Procurement Portal, (ii) RFP mandates only Indian Rupee bids, whereas GTE permits price quotation in foreign currency as well, (iii) RFP is a mandatory 'e-procurement' tender, which is not mandatorily insisted upon in a GTE and (iv) RFP does not contain any condition for INCOTERMS, which is a mandatory requirement for GTE.

7. Mr. Kambhatta, the learned Senior Advocate would further submit that mere participation by Petitioner-Hitachi in the bidding process cannot be construed as an acquiescence, as it objected to the illegality. That since bidding condition violates 'Make In India' Order, the same is null and void. He makes an alternative submission that upon petitioner's objections, DPIIT directed respondent-Bank as late as on 27.02.2023 to procure CRMs only from local suppliers and therefore petitioner had a legitimate expectation of the respondent-Bank complying to the DPIIT's directives. He would refer to several correspondence which Petitioner-NCR made with the respondent-Bank repeatedly objecting to the tender condition permitting participati