The court emphasized the importance of bringing all relevant facts to the notice of the court and held that relief is unnecessary when the basis for the petition is invalidated.

JUDGMENT

Satish Chandra Sharma, C.J. (Oral)--The petitioners before this Court have filed the present writ petition under Article 226 of the Constitution of India in respect of a tender dated 04.01.2023 issued by the respondents for procurement of drugs to CGHS Wellness Centres in Delhi/NCR (subject tender).

2. In the writ petition, it has been stated that all the five petitioners are Chemists carrying out trade in the city of Delhi-NCR and they are also s Non-MSE (Micro and Small Enterprises) bidders in respect of the E-tender published by the respondents.

3. The petitioners submitted their bids, however, filed the instant petition during the pendency of the tendering process being aggrieved by Clause 4.2 of the Notice Inviting Tender (NIT) which is detailed as under:

"4.2 In compliance with Public Procurement Policy for MSE:

a) Participating bidder who is a registered MSE, and who is quoting price within price band of L1+15 %, shall be empaneled as ALC for a unit by bringing down their price to L1 price in a situation where L1 for the equipment is a non MSE entity. In case of ALC discount, the chosen bidder would be the one quoting the highest discount (H1), in place of lowest price (L1). Hence purchase preference would be given to MSE bidder who is quoting discount within the range H1-15% and is willing to bring up the quoted discount to match H1, where H1 is a non MSE entity.

Explanation to 4.2(a): if a non MSE H1 bidder quotes 25% for a WC, then purchase preference would be given to all MSE bidders who have quoted a discount of 25-(15% of 25)=25-3.75=21.25 All MSE bidders who have quoted discount between 21.25 and 24.9 will be asked to match the 25% discount quoted by the H1 bidder.

b) Bid Splitting is not possible in case of ALC empanelment. Hence, if an MSE quoting in the requisite discount range matches a non MSE H1 discount, then the entire contract shall be given to the said MSE. Similarly, as bid splitting is not possible, the 3% preference to women MSEs and 4% preference to SC/ST MSEs also shall not be applicable.

c) In case there are more than 02 MSEs who fall in the range H1-15% and both agree to bring up their discount to match H1 and, since bid splitting is not possible, 'GeM system generated MSE' among the two would be given the contract for that Wellness Centre. (i.e., automated system generated bidder shall be declared as the successful bidder).

d) There is likelihood of MSE bidders in the range of H1-15%, being selected as successful bidders on their matching the non-MSE H1 bidder's discount. Since only a single discount quotation is allowed for a bidder for a city (Delhi/NCR), such MSEs would be required to agree to provide medicines to all WCs where they are H1, at the highest discount at which they have been empanelled in CGHS Delhi/NCR.

E.g., Bidder A who is a non MSE is the H1 at 16.1% in we A, bidder B who is non MSE is H1 at 16.2% in weB, bidder c who is non MSE is the H1 at 16.3% in we c.

Bidder X an MSE has quoted 15% and agrees to match 16.1% for we A, 16.2% for we B and 16.3% for WC C and becomes H1 for these 3 WCs. Bidder X is allowed to quote a single discount for all WCs and hence has to agree for 16.3% discount for WC A, WC Band WC C."

4. The aforesaid clause provides certain benefits to the Micro and Small Enterprises (MSEs) and weightage/preferential treatment which was being given to the MSEs. The petitioners being aggrieved by Clause 4.2 came up before this Court raising various grounds challenging the NIT itself.

5. The first ground raised by the petitioners in the writ petition is that the respondents have erroneously granted benefit/weightage to Trader-Chemists contrary to the Public Procurement Policy for MSEs keeping in view the Office Memorandum dated 25.03.2022 which contains FAQs issued by the Government of India in respect of the Public Procurement Policy for MSEs.

6. The petitioners have raised another ground stating that the allegedly illegal beneficial clause to MSE Chemists rende