IMPORTANT POINT
The exemption for Micro and Small Enterprises does not apply to the submission of Annual Audited Reports and Income Tax Returns as required by the NIT.

JUDGMENT :

(Michael Zothankhuma, J.)

1. Heard Mr. B. Sharma, learned counsel for the petitioners. Also heard Mr. 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 (1) submitted documents, which were not in conformity with Clause 13(h) of the NIT, as the petitioners did not submit the Annual Audited Report (balance sheet and profit & loss account) and Income Tax Return for one particular year, i.e. 2022 – 2023 and (2) UDIN number in CA Certificate was not distinct.

3. The petitioners’ case is that the petitioners participated in the 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.

4. 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(c). He further submits that in terms of Clause 3(e) of the NIT, Micro and Small Enterprises (MSEs) are exempt from submitting their Average Annual Financial Turnover and experience in all public procurements, subject to meeting the quality and technical specification.

5. The petitioners’ counsel submits that even though the petitioners are a Small Enterprise, registered as a Micro and Small Enterprise (MSE), who were not required to submit the average annual financial turnover required and experience of supply of handloom and handloom accessories in terms of Clause 3(b)&(c) of the NIT, in view of Clause 3(e) of the NIT, the petitioners had submitted the documents in terms of Clause 3(b)&(c) of the NIT. He further submits that an Annual Audited Report (balance sheet and profit & loss account) and an Income Tax Return (ITR in short) is the same as an Average Annual Financial Turnover. As such, the Annual Audited Report and ITR mentioned in Clause 13(h) would have to be considered to be the same as Average Annual Financial Turnover provided in Clause 3(b). He accordingly submits that as the petitioners were exempt from complying with Clause 3(b) of the NIT, in terms of Clause 3(e) of the NIT, the petitioners should be exempt from submitting the Annual Audit Reports and ITRs of the last 3 years, i.e. 2020–2021, 2021–2022 and 2022-2023, which is the same as the Average Annual Financial Turnover provided in Clause 3(b). Accordingly, the disqualification of the petitioners’ technical bid, on the ground that it’s documents were not in conformity with the Clause 13(h) of the NIT, does not arise. He further submits that the petitioners’ bid was also disqualified on the ground that the UDIN number in CA Certificate was not distinct. He also 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.

6. Mr. R. Dhar, learned counsel for the State respondents submits that Clause 3(h) of the NIT required the bidders to submit their Income Tax Returns and certified Annual Audited Report (balance sheet and profit & loss account) for the last 3 financial years 2020–2021, 2021–2022 and 2022-2023. However, the petitioners had not submitted the certified Annual Audited (balance sheet and profit & loss accou