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IN THE HIGH COURT OF JUDICATURE AT MADRAS
D.Bharatha Chakravarthy, J.
Peter & Miller Packers, Represented by its Proprietor - Petitioner
Versus
The Chief General Manager (Contracts), Indian Oil Corporation Ltd. and ors. - Respondents
W.P.No.4803 of 2025 and W.M.P.No.5326 of 2025
Decided On : 18-02-2025
Key Points: - The petitioner sought to have its MSE credentials validated despite selecting "NO" for MSE preference in the GeM online application; the court found the error bonafide and that the petitioner had the qualifications of an MSE. (!) - The court held that trivial/mistakes in online applications should not bar eligible bidders from receiving MSE benefits, emphasizing flexibility in the tender process. (!) (!) (!) - The petition was disposed of with directions to consider the petitioner’s bid under the MSE category notwithstanding the incorrect online selection, and to include him in the process of selection for potential price preference if eligible. (!) (!) - The court noted that uploading MSE certificates was present and that the petitioner had all qualifications as MSE; the issue was only the incorrect online choice, not lack of qualifications. (!) (!) - It was stated that correcting such innocuous mistakes should be considered in exceptional circumstances, ensuring no prejudice to third parties. (!) - The order directs the respondents to consider the petitioner’s bid under the MSE category and for price preference if eligible, with no costs awarded. (!) (!)
ORDER :
D.Bharatha Chakravarthy, J.
This Writ Petition is filed with a prayer to consider the representation of the petitioner, dated 06.02.2025 and re-verify and validate and approve the credentials of the petitioner as MSE both online in GeM profile and also in the bid documents being eligible under the preferential bidder category in respect of the bid documents submitted by the petitioner on 17.12.2024 in respect of the tender that is floated for filling up of 2T Supreme Oil in 20 ml, 40ml and 60 ml pouches in southern region in order to enable the petitioner to participate in the bid as a registered MSE for the purpose of availing purchase preference.
2. The brief facts, in which, the Writ Petition arises is that the respondent had issued a notice inviting tender on 19.11.2024 through the Government e-Marketplace (GeM portal) launched by the Government of India to facilitate the purchase of goods and services. The estimated value of the work is Rs.11,68,60,135.61 ps including GST at 18% for a period of two years. The Earnest Money Deposit is Rs.2,95,500/-. The Earnest Money Deposit is exempted for the applicants who are registered as MSE (Micro and Small Enterprises) under the Micro, Small and Medium Enterprises Development Act, 2006. The intending bidders are required to furnish proof of their pre-qualification experience as provided under the NIT. The bidders should also own their own land premises or should have a lease for a minimum area of 3,500 Sq.ft for the purpose of storage facility with a filling capacity of 6 Kilo litre per day. The bidding process shall have a technical evaluation consisting of two stages. In the first stage, the pre- qualification criteria shall be examined such as verification of documents like financial documents, work experience and land documents. The Stage- II comprises of a Technical Committee comprising of three members who shall instruct the storage facility offered by the bidders. The first stage of evaluation was completed on 03.02.2025 and the second stage of technical evaluation commenced on the said date.
3. It is at this stage, the petitioner has filed the present application to consider the petitioner's bid under the MSE category. It is stated that while filling up the application in the GeM portal, when there is a specific column with reference to whether the petitioner is willing to be brought under preferential bidder option as MSE, the petitioner categorically selected the option 'NO' instead of 'YES'. Therefore, the petitioner, though is being considered along with the other candidates in the technical bid, he is not considered in the preferential quota of MSEs. Therefore, when the petitioner did not prefer the same, he was not considered.
4. Heard Mr.K.S.Viswanathan, learned Senior Counsel for the petitioner and Mr.Mohammed Fayaz Ali, learned Counsel for the respondents.
5. Mr.K.S.Viswanathan, learned Senior Counsel for the petitioner would submit that there is a process of revaluation in GeM portal regarding the MSE enterprises. Perhaps, because of the fact that the revaluation was not done and the same was not updated on the date of application, the relevant column with the option 'YES' was not consumed by the portal and the petitioner is an MSE. It is availing the benefit of MSE even with reference to the existing contracts with the respondent organisation. It has prior experience. Even in the present application, the petitioner claimed exemption even for payment of Earnest Money Deposit. Therefore, it can never be the intention of the petitioner to select 'NO' and not to avail the benefit of MSE category. It is the mistake of the portal or bonafide mistake while filling up the online form.
6. For the bonafide mistake which does not result in any qualification of the petitioner being lacking as on the date of tender condition, the petitioner is now sought to be excluded from the MSE category. Therefore, this is a fit case where this Court should interfere.
7. Per contra, Mr.Mo
Trivial mistakes in online tender applications should not disqualify eligible bidders from receiving benefits under the MSE category.
The MSE procurement preference is applicable only to producers and service providers, not mere traders, clarifying eligibility under the MSME Act.
Medium enterprises are not entitled to Earnest Money Deposit exemption under government rules, highlighting the necessity for proper MSME classification in tender processes.
Compliance with specific pre-qualification criteria and terms and conditions of a tender notice is crucial for the acceptance of a bid.
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