IMPORTANT POINT
The court ruled that start-up exemptions do not apply to registration requirements for contractors, affirming the NHPC's rejection of the appellant's bid.

JUDGMENT :

(Vijay Bishnoi, CJ)

This writ appeal is preferred by the appellant being aggrieved with the judgment & order dated 21.11.2024 passed by the learned Single Judge in WP(C) No.132/2023.

2. Looking to the fact that the matter is regarding the award of contract in relation to an infrastructure project, with the consent of the learned counsel appearing for the parties, we have heard the matter finally at the admission stage itself.

3. The appellant, which is a start-up Company, has approached the Writ Court being aggrieved with the action of the respondent NHPC Limited, whereby the technical bid submitted by the appellant/writ petitioner in response to the Notice Inviting Tender (NIT) dated 04.08.2022 for the work of “River Bank protection/ erosion control measures on the Left Bank of River Subansiri Downstream of village Gerki 1 (RD 28 KM - 29 KM)” has been rejected as non-responsive. The technical bid of the appellant/writ petitioner was declared as non-responsive on the ground that the bidder had not furnished any Certificate of Registration with any Government/Semi Government Department/NHPC certifying it as a Class-I or Class-A type Contractor.

4. The appellant/writ petitioner argued before the learned Single Judge that as per the exemption granted to a start-up Company vide Clause 3.2.E, the appellant/writ petitioner was not required to submit the certificate of registration of the Contractor as Class-I or Class-A. It was also contended before the learned Single Judge that prior to the registration of the appellant/writ petitioner as a Medium Size Entrepreneur (MSE) start-up Company, the appellant Company was a Proprietorship Firm, which was duly registered as a Class-I/Class-A Contractor Firm and for the purpose of meeting the qualification specified in Clause 3.2.A(c), the said Registration Certificate of the Proprietorship Firm was required to be taken into consideration. The appellant/writ petitioner has also questioned the decision of the NHPC Limited of treating the technical bid submitted by the respondent No.7 as responsive.

5. The learned Single Judge, after taking into consideration the submissions of the rival sides, has dismissed the writ petition. The relevant extract of the impugned judgment is reproduced hereunder:-

“18. I have heard the learned counsels appearing on behalf of the parties and given my anxious consideration to the respective submissions.

19. As noted in the previous segments of the instant judgment, Clause 3.2E had provided certain exemptions to all startups (whether MSEs or otherwise) falling within the definition as per Gazette notification dated 23.05.2017 from meeting the qualification criteria in respect of Prior Experience-Prior Turnover as per Clause 3.2A however subject to meeting their quality and technical specifications. In that view of the matter, Sub-Clause (a) and Sub-Clause (b) of Clause 3.2A which pertain to the prior financial turnover as well as the prior experience were to be exempted.

20. It is also relevant to take note of that this exemption was not absolute inasmuch as the employer reserves the right to deny such exemptions to startups (whether MSEs or otherwise) in case of circumstances like procurement of items relating to public safety, health, critical security, operations and equipments, etc. However, Sub-Clause (c) of Clause 3.2A were not in relation to prior experience or prior turnover but was specifically as regards registration with any Government/Semi Government Department/ NHPC as a Class 1 or Class A contractor or as the case may be, thereby allowing such contractors for undertaking works equivalent to estimated value. The submission of the certificates as required under Sub-Clause (c) of Clause 3.2A was not exempted in terms with Clause 3.2E inasmuch as the Clause 3.2E only related to prior experience and prior turnover.

21. In the instant case, it would be seen that the Petitioner was issued an email on 13.10.2022 asking the petitioner to provide the certifi