IMPORTANT POINT
Micro and Small Enterprises (MSEs) are exempt from submitting prior turnover documents in public procurement, ensuring equal treatment in tender evaluations.

JUDGMENT :

Heard Mr. B. Sharma, learned counsel for the petitioners. Also heard Mr. R. Dhar, learned counsel for the State respondents and Mr. D.K. Nath, learned counsel for the private respondents.

2. The grievance of the petitioners is that the petitioners’ technical bid has been disqualified by the Technical Bid Evaluation Committee, vide meeting minutes dated 22.02.2024, on the ground that the petitioners had submitted documents, which were not in conformity with Clause 13(i) of the NIT, which is as follows:-

“13(i) Certificate from Registered Chartered Account/ Statutory Auditor indicating annual financial turnover during the last three years should be furnished with UDIN No.”

3. Mr. B. Sharma, learned counsel for the petitioners submits that the petitioners had mistakenly uploaded the documents showing the annual financial turnover for the period 2018-19, 2019-20 and 2020-21, though the petitioners were required to upload the annual financial turnover certificate, as required under Clause 13(i), for the year 2020-2021, 2021-22 and 2022-23.

4. The petitioners’ case is that they had participated in e-Tender Notice dated 11.01.2024 (hereinafter referred to as the ‘NIT’), for empanelment of manufacturers and suppliers, for supply of handloom and handloom accessories under the various schemes of Government of India and Government of Assam, implemented by the Directorate of Handloom and Textiles, Assam.

5. The petitioners’ counsel submits that in terms of Clause 3(b) of the NIT, relating to the eligibility criteria of the bidders, bidders were to have not less than Rs. 50 Lakhs as the average annual financial turnover during the last three years, i.e., 2020-2021, 2021-2022 & 2022-2023 and they were also required to have the experience of supply of handloom and handloom accessories for an aggregated value of a minimum of Rs. 10 Lakh during the last three financial years, in terms of Clause 3(e). He further submits that in terms of Clause 3(e) of the NIT, Micro and Small Enterprises (MSEs) are exempt from submitting prior turnover and experience in all public procurements, subject to meeting the quality and technical specification.

6. The petitioners’ counsel submits that as the petitioners were a small enterprise registered as a Micro and Small Enterprise (MSE), they were not required to submit the annual financial turnover, in view of Clause 3(e) of the NIT. However, the petitioners had submitted the required documents in terms of Clause 3(b), 3(c) & 13(i) of the NIT. He accordingly submits that as the petitioners were not required to comply with Clause 13(i) of the NIT, in terms of Clause 3(e) of the NIT, the disqualification of the petitioners’ technical bid, on the ground that it’s documents were not in conformity with the Clause 13(i) of the NIT, does not arise, inasmuch as, the documents required under Clause 13(i) comes within the ambit of the financial turnovers exempted under Clause 3(e) of the NIT. He further submits that similarly placed bidders as the petitioners, have been empanelled by the State respondents and as such, there is discrimination writ large, in disqualifying the technical bid of the petitioners only.

7. The petitioners’ further case is that though the private respondents had submitted documents showing their experience in handloom and handloom accessories for the aggregate value of minimum Rs.10 Lakhs during the last 3 years, some of the private respondents had not submitted their experience certificates as required under Clause 13(p) and 3(c) of the NIT. He accordingly submits that when the technical bid of the private respondents can be declared responsive, even though they had not complied with certain Clauses of the tender, the filing of the financial turnover documents, with respect to the wrong financial years by the petitioners, should also have been condoned.

8. The petitioners’ counsel submits that the respondent Nos.4-6 had submitted expired trade licences, while the respondent No.13 did not submit