IMPORTANT POINT
The court affirmed that eligibility criteria in tender processes must be adhered to strictly, and non-compliance disqualifies bidders from preferential treatment under procurement policies.

JUDGMENT :

Sanjay Kumar Medhi, J.

The present petition under Article 226 of the Constitution of India has been filed in connection with a tender process initiated vide an NIT dated 05.03.2024 issued by the Government of Assam, Assam Skill Development Mission for selection of implementing agency for upgradation and customization of IT and MIS system of Assam Skill Development Mission. The grievance of the petitioner is mainly in connection with the deprivation from the benefits under the preferential policy and orders which according to the petitioner, it is entitled to.

2. As per the facts projected, the petitioner is a registered partnership firm having registration as Micro Enterprise (Udyam). The Assam Skill Development Mission (hereinafter Mission) had floated the aforesaid NIT dated 05.03.2004 with which the petitioner was interested. It is the case of the petitioner that being registered as a micro enterprise, it is entitled to the benefits of the provisions of the Assam Procurement Preference Policy, 2021 and The Procurement Preferential Order, 2017 of the Government of India as well as the Assam Public Procurement Act, 2017. It is projected that the terms incorporated in the tender notice are in violation of the aforesaid preferential provisions and have been termed as arbitrary and unreasonable. It is also the case of the petitioner that there is an obligation on the part of the respondent authorities to ensure that the eligibility conditions do not result in unreasonable exclusion of local suppliers. However, the conditions have been set up to selectively exclude the petitioner from the participation in the tender process.

3. I have heard Shri K. Khanna, learned counsel for the petitioner. I have also heard Shri B. Goswami, learned Additional Advocate General, Assam appearing for the respondents.

4. Shri Khanna, learned counsel for the petitioner has submitted that the petitioner was incorporated in the year 2019 and is covered under the Micro, Small & Medium Enterprises Development Act, 2006 (hereinafter MSME Act). He has also submitted that the petitioner gets benefits under the Assam Public Procurement Act of 2021. He has drawn the attention of this Court to the said Act of 2021 wherein the various benefits are to be granted to micro industries. As per Section 4 (3), the aspect of Udyam Registration has been laid down which shall be eligible under the policy. Under section 4 (9), it has been laid down that the policy will not be applicable for procurement under the externally aided projects. It is submitted that the present tender process would not be covered by the aforesaid Section 4 (9).

5. Attention of this Court has also been drawn to Section 7 which is in connection with the mandatory procurement from small and micro enterprise and in Section 9, the purchase preference has been laid down. It is submitted that as per the said purchase preference, a micro and small enterprise or startup who quotes the price lowest to the L1 who is not a micro and small enterprise or startup will be given the price preference and supply order of 25% of the total quantity of the items.

6. Under Section 13, the action for non-compliance of the provisions of the Act has been laid down and under Section 15, the annual plan for procurement from small and micro enterprise has been laid down. The powers to grant exemption and to reduce minimum local content is laid down in paragraph Section 17. It is submitted that since consequence of non-compliance has been laid down, the provisions are mandatory in nature.

7. The learned counsel has also submitted that as per Rule 23 (14), there is a scope to seek for clarification of bids which was not explored. It is also submitted that the law provides for the petitioner which is a small and micro industry to have concession of 50% for the earnest money deposit. It is also submitted that if the bid of the petitioner is found to be closest to the bid offered by the lowest bidder, the petitioner would be