The court emphasized that strict adherence to financial criteria in tendering processes is necessary, and failure to comply can result in bid rejection.

ORDER :

A.S. SUPEHIA, J.

1. By way of this petition under Articles 226, 14, 19(1)(g), and 21 of the Constitution of India, the petitioners have challenged the action of the respondent No.1 rejecting the technical bid of the petitioner No.1-Company in the tender for hiring of services for Real Time Monitoring System (RTMS) for Sucker Rod Pump/Progressive Cavity Pump wells (“SRP/PCP” for short) of ONGC Mehsana Asset vide tender No. GEM/2024/B/4522437 dated 23.01.2024. 2. The brief facts of the case are as under:

2.1. Respondent No.1 floated a tender for hiring of services for RTMS for SRP/PCP wells of ONGC Mehsana Asset vide tender No. GEM/2024/B/4522437 dated 23.01.2024. The time limit for submitting online bid was expiring on 04.03.2024 at 19:00, and bid were to be opened on the same day at 19:30. As per the tender conditions, the Technical Bid Opening ('TBO') dated 04.03.2024 was at 19:30 PM which was subsequently extended from time to time i.e. from 04.03.2024 to 13.05.2024 and then to 19.05.2024. The petitioner No.1-Company participated in the tender and submitted the documents on 20.04.2024 and uploaded the same on Government e-marketplace website i.e., https://bidplus.gem.gov.in/all-bids and made an offer.

2.2. As per Bid Evaluation Criteria (hereinafter referred to as 'BEC') clause D of the tender document the bidder was to meet the Financial Criteria which required the turnover of the bidders to be more than or equal to Rs. 16,00,77,600/-, and since the petitioner did not qualify for such criteria independently, the petitioner No.1, as per clause 5D(v) of the BEC, a bidder (other than a consortium) that is not able to meet the Financial Criteria by itself, can also submit its bid on the basis of the financial capability of a Supporting Company, for which the petitioner No.1-Company took support of MSS Meditechno (India) Pvt. Ltd (hereinafter referred to as “Supporting Entity”). Further, in terms of BEC clause F.1.0 (a) for seeking benefits reserved for Micro & Small Enterprises ('MSE') i.e., exemption from payment of Earnest Money Deposit (hereinafter referred to as “EMD”), in cases of support from MSE, the supporting MSE(s) shall have to fulfill all the obligations prescribed for a supporting company as per BEC conditions. Further, in case of a bid from an incorporated JV/consortium, in order to avail the benefits, all the members of the bidder i.e. Incorporated JV/consortium shall have to be MSEs.

2.3. As per clause 5(D)(i)(a) of BEC, the bidder was required to submit its Audited Consolidated Financial Statement with all its subsidiaries, which shall be the basis for meeting the requirement under the Financial Criteria, and in cases where the bidding/supporting company is not required to prepare Consolidated Financial Statement, as per the statute of the country of the bidding/supporting company as applicable, the bidder shall provide justification for the same along with a certificate from a practicing Chartered Accountant or equivalent to this effect.

2.4. The petitioner No.1-Company submitted the relevant documents on 20.04.2024, including disclosing the turnover of the Supporting Entity along with the bidder, etc.

2.5. Thereafter, the bid of the petitioner No.1-Company was evaluated, and petitioner No.1-Company was intimated vide mail dated 07.08.2024 received at 11:27 AM. The petitioner No.1- Company was called upon to provide clarifications/confirmations/deficient documents. Such communication was made through the website of the Government called as Government e-marketplace at https://gem.gov.in/.

2.6. The petitioner No.1-Company tried uploading its response on the website directly; however, due to some technical errors on the webs