IN THE HIGH COURT OF MEGHALAYA AT SHILLONG WP(C) No. 294 of 2016 Benson Medical Equipments (India) Pvt. Ltd.

having its registered office at A-184, Ground Floor, Meera Bagh, Paschim Vihar, New Delhi-110087 and Corporate Office at 495, Phase 5, Udyog Vihar, Gurgaon, Haryana-122016, and is represented by its Managing Director Sri Saandeep Nanda, S/o Late Jagdish Nanda, R/o B-439, Meera Bagh, New Delhi.

…. Petitioner - VERSUS –

1. North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences (NEIGRIHMS), represented by its Director, having office at Directors Block, Mawdiangdiang, Shillong-793018, Meghalaya.

2. The Deputy Director (Admn.)

North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences (NEIGRIHMS), Directors Block, Mawdiangdiang, Shillong-793018, Meghalaya.

3. Store and Procurement Officer, North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences (NEIGRIHMS), Directors Block, Mawdiangdiang, Shillong-793018, Meghalaya … Respondents BEFORE HON’BLE MR JUSTICE VED PRAKASH VAISH Present Mr. D. Borah ... Counsel for Petitioner Mr. K. Paul ... Counsel for Respondents Date of Hearing ... 05.07.2017 Date of Judgment ... 07.07.2017 BY HON’BLE MR. JUSTICE V.P. VAISH

J U D G M E N T

By way of the present petition the petitioner challenged the action of the respondents in rejecting its bid proposal.

2. Briefly recapitulating the facts leading to the filing of the present petition are that an Online Open Tender dated 25^th August, 2015 was released by the respondent No. 1 for the supply, installation and commissioning of Gas Pipeline and Manifold System (including operation for 10 years) on Turnkey basis as stated in the Tender. The last date for submission of tenders/bid documents and also for opening of the Techno-Commercial Bids was fixed on 26^th October, 2015.

3. The petitioner submitted the two tier bids comprising of the Techno-Commercial Bids and Price Bids on 21st October, 2015.

4. General Instructions to the Tender also provides for Earnest Money Deposit (EMD) by the intending Tenderers and as per Clause 19.2 of the Tender document, the tenderers registered inter alia with the National Small Industries Corporation Limited (NISC) were eligible for exemption from payment of the EMD amount of Rs.

30 lakhs.

5. The petitioner, being registered with the NSIC and being in possession of the NISC Government Purchase Certificate dated 24^th September, 2015, sought exemption from payment of the EMD amount. The petitioner thus participated in the tender process without depositing the EMD amount.

6. It is stated that before opening the technical bids, the respondents in a very clandestine manner wrote an e.mail on 24th November, 2015 to the NSIC seeking clarification from them as to whether the petitioner company was eligible for exemption from payment of EMD. The petitioner contended that this communication by the respondents was completely unwarranted and uncalled for.

7. It is further stated that in response to the e.mail dated 24th November, 2015 the NSIC sent a reply dated 30th November, 2015 that as per the policy all registered MSE units supplying goods and services are inter alia eligible for the benefit of exemption from payment of EMD as mentioned in Clause 10 of the said Policy.

8. The petitioner further stated that as per one of the terms of the Tender, the tenderer had the option to supply components or parts of foreign origin and in lieu of the same they had to produce one Manufacturer?s Authorisation Form as per the standard form provided under Section XIV of the Tender. The petitioner furnished the same and was hopeful that the respondents in compliance with the Public Procurement Policy 2012 would consider their tender bid and select them.

9. The respondents pursuant to the tender summary report dated 27^th November, 2015 rejected the bid of the petitioner on the ground that composite system is of >imported? origin and therefore EMD exemption is not applicable and further that the of