The court upheld the tender conditions allowing non-proportional allotment of work to MSMEs ranked as L1 without entitlement to proportionate distribution among qualified bidders.

JUDGMENT :

N. Unni Krishnan Nair, J.

Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. M. K. Choudhury, learned Senior Counsel assisted by Mr. M. M. Kashyap, learned counsel appearing for the respondent nos. 1 to 3 and also Mr. A. Tiwari, learned counsel appearing for the respondent no. 4 to 6.

2. The petitioner, by way of instituting the present proceeding, has presented a challenge to the select list prepared by the respondent nos. 1 to 3 of bidders under the MSE (General) category for allotment of the work in question. The petitioner has also assailed the Letter of Acceptance (LoA) issued in favour of the successful bidders for the work in question. The petitioner also prays for a direction upon the respondent nos. 1 to 3 for proportionate distribution of the work in question amongst the qualifying MSE bidders, including him.

3. The brief facts requisite for adjudication of the issue, arising in the present proceeding is noticed as under: -

The Indian Oil Corporation Limited (In short the IOCL) i.e. the respondent nos. 1, 2 & 3 had issued a Notice Inviting Tender (NIT) bearing no. RCC/ERO/37/2022-23/PT-45, inviting application from intending bidders for road transportation of bulk Petroleum Aviation Turbine Fuel (ATF) products for a period of 3(three) years with the option for further extension for another 2(two) years. The said transportation, in terms of the said NIT was to be so carried out by top loading Tank Trucks.

In terms of the said tender, the total requirement of the Tank Trucks was specified as 169 nos. The NIT also made provisions for reservation of the Tank Trucks for MSEs. The petitioner herein, being qualified, applied in pursuance to the said NIT under the MSE (General) category. On opening of the bids so received, the petitioner was found to be qualified in the bidding process.

The respondent nos. 1 to 3, thereafter, on considering the qualifying bidders in terms of the provision of the NIT, proceeded to prepare a select list of the intending bidders by assessing the respective bidders in terms of the prescriptions made in Clause XI of the NIT. In the select list so prepared, the petitioner was placed at Serial No. 18. The petitioner being a MSME and he not being awarded any portion of the work involved and alleging that the respondent authorities in violation of the tender process had allotted Trucks only to certain tenderers placed in the select list without making the distribution proportionately amongst the qualifying MSE bidders, has instituted the present proceedings with the prayers as noticed herein above.

4. Mr. Borthakur, learned counsel for the petitioner has at the outset submitted that the petitioner has qualified under the MSME category and in terms of the NIT, for the MSME (General) category; there was a reservation of 32 Tank Trucks. Mr. Borthakur has submitted that upon preparation of the select list of the qualifying bidders, the respondent authorities proceeded to procure the Tank Trucks required for the execution of the work involved from the first 5(five) bidders placed in the select list, in clear violation of the tender conditions.

5. Mr. Borthakur, learned counsel for the petitioner, by referring to the stipulations made in the order dated 23.03.2012, issued by the Ministry of Micro, Small and Medium Enterprises, Government of India has submitted that in terms