Sujit Narayan Prasad, J. - (1.) This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the decision taken by the Tender Committee, as on 06.09.2018 has been assailed by the petitioner, since, it has not been opened on the ground of non-submission of the BOQ cost and EMD.
(2.) The case of the petitioner as per the pleading made in the writ petition, is that as per the decision taken by the Drinking Water and Sanitation Department in its meeting dated 21.06.2018 it has been decided to install 323 Electrolytic De-fluoridation Plant (EDF) in different districts of Jharkhand and in pursuance thereto, a Notice Inviting Tender was issued on 28.06.2018 and as per clause (v) of the BID Document, the work is of specific technology with ten years O & M, for which technology transfer certificate from CSIR or through its related institutions like NEERI is mandatory. It is further mentioned in the said clause that the Electrolytic De-fluoridation Plant (EDF) has not been listed in the Exclusive List (reserved for purchase from State Micro and Small Enterprises) of Jharkhand Procurement Policy, 2014, therefore, any proposal on the ground of MSME will not be entertained. The petitioner has been granted exemption for EMD and cost of Bid document as per the said NIT and therefore, he has made an application before the Tender Inviting Authority on 01.07.2018, requesting therein to consider to implement Jharkhand PWD Code, 2012, Jharkhand Procurement Policy, 2014 and Jharkhand Industrial Inc. Policy, 2016 in as much as to incorporate 20 per cent mandatory purchase from local MSME as per Para 4 of the said Policy and also provision of Open Tender clause, wherein, as per Para 10, it has been provided that 20 per cent is to be purchasd from MSEs, giving price preference L1 + 15 per cent quota as per Jharkhand Procurement Policy, 2014 and to include the EDF Plant in exclusive list since the plant is run by Solar based plant in which Solar Panel and pump is used and Solar pump is in the exclusive list and also to exempt MSME from Bid document cost and EMD in terms of the aforesaid Government Policies. The petitioner has submitted his application alongwith the Tender details, submission of which has been confirmed but the same has been contested not to be opened on account of the fact that the BOQ cost and EMD has not been submitted alongwith the bid document.
(3.) Mr. Rajeev Sinha, learned counsel appearing for the petitioner has vehemently submitted that there is no requirement to submit BOQ cost and EMD in view of the exemption granted under the Jharkhand Procurement Policy, 2014 for depositing tender fee and the EMD fee and making it clear in the Tender details, as submitted by the petitioner, the same has also been confirmed and therefore, the rejection of Technical Bid on the ground of non-submission of BOQ cost and EMD is highly arbitrary, illegal and irrational and without any application of mind, as also without considering the exemption granted to the petitioner by the competent authority under the Jharkhand Procurement Policy, 2014, which has been implemented by the State of Jharkhand to provide incentives to the Micro and Small Enterprises by giving preferential treatment in purchases by the Government Department's audit institutions and State Public Sector Enterprises. He has referred to the Condition No. (v) of the Notice Inviting Tender, wherein, it has been provided that the Electrolytic De-fluoridation Plant (EDF) Plant has not been listed in the exclusive list of Jharkhand Procurement Policy, 2014 and therefore, any proposal on the ground of MSME will not be entertained, but this condition will not come in the way, as because the exemption under the Jharkhand Procurement Policy, 2014, has already been granted and, therefore, the rejection is bad on this ground also.;