HIGH COURT OF CHATTISGARH AT BILASPUR
W P C No 303 of 2009
M/s Singh Transporters
...Petitioners
Versus
M/s Bhilai Steel Plant &
Another
...Respondents
! Shri K RNair Advocate for the petitioner
^ Shri BP Mishra Advocate for the respondents
CORAM: Hon'ble Shri Justice I.M. Quddusi & Hon'ble Shri Justice N. K. Agarwal.
Dated:20/07/2010
: Judgment
Writ Petition under Article 226 of the Constitution of India
ORAL ORDER
(Passed on 20th day of July, 2010)
Per I.M. Quddusi, J.
Heard.
1. The petitioner, which is a partnership firm, submitted
his tender for the work “Augmentation of SCRAP” for melting
in SMS-I & SMS-II from different departments of their plaint
at Bhilai along with Rs. 1,50,000/- as earnest money. In the
tender documents, eligibility criteria was given as under:
“3.0 Eligibility Criteria: Parties shall submit
the notarized copy of the following
documents/certificates/proofs along with the
Techno-commercial bid:
I. Proof of CPF registration by RPFC.
II. Undertaking to deploy minimum of 19
Trucks/Trailers (minimum two
trailers/torrus), 5 Dumpers/Tippers, 1 mobile
magnetic crane and 2 fowlers for scrap
augmentation work, out of which at least 50%
of vehicles i.e. minimum 9 trucks/trailers, 3
dumpers/tippers will be registered on parties
name & should not be more than 10 years old.
We understand that the carrying capacity of
vehicles will be 10-16 Tones for Trucks, 12-
18 Tones for Dumpers/Tippers & 24-30 Tones
for Trailers/Torrus. Even if the party
deploys higher capacity vehicles, he is bound
to deploy minimum required vehicles. Party
shall submit notarized copies of relevant
document for the same.
III. Average annual financial turnover during the last 3
years, ending 31st March, 2006, should be at least Rs. 80
Lakhs. In support of this, Notarized Audited Balance Sheet
and profit & loss account of last three years should be
enclosed.
XXX XXX
V. The party must submit an undertaking as per enclosed
Annexure-`X’.
The parties, registered with BSP for job
contracts must have valid registration in
discipline “Loading/transportation (09)” OR
“scrap processing, cutting and handling (10)”
having “Class-A”. Registered parties shall be
exempted from submission of documentary proof
detailed at (I), (III) & (IV) above.
However, registered parties shall have to
make compliance to point-(II) & (V).”
2. But the petitioner did not submit the required document
with its tender papers. Consequently, a letter was sent to
the petitioner on 20.10.2006 inter alia requesting him to
submit Annexure-X along with the offer and also to submit
Audited Balance Sheet and profit & loss account for last
three years. Annexure-X was the undertaking that they shall
deploy 64 nos. of HSL trust CPF labour for the stipulated
period of contract. When the petitioner did not supply the
above required documents, his financial bid was not opened.
However, the respondent has forfeited his EMD amount of Rs.
1,50,000/- vide impugned order dated 09.01.2007 (Annexure
P/2) under clause 1.16 of the Special Conditions.
3. Before proceeding further with the matter, it is
necessary to re-produce clause 1.16 of Special Conditions,
which reads as under :
“1.16. Failure to produce the Original
Certificate in support of the attested
copies of relevant documents submitted
earlier before the award of contract,
would result in disqualification and
forfeiture of EMD and also liable for
debarring from participation in BSP
tenders.”
4. In the instant case, the petitioner did not submit the
required documents, and when he did not submit the same even
on sending a letter on 20.10.2006, his financial bid was not
open and therefore, to our opinion, he was not eligible in
the absence of non submission of the required material with
the tender papers.
5. Clause 1.16 of Special Conditions as re-produced above
shows that forfeiture of EMD was only applicable if the
tenderer fails to produce the original certificates of which
attested copies of the relevant documents were submitted
earlier along with tender papers, meaning thereby, that if
the participant submits the attested copies of the original
certificates along with tender papers and later on he does
not submit the original certificates to verify the same, the
same would result in disqualification and forfeiture of EMD
and also liable for debarring from participation in BSP
tenders. But in the instant case, the petitioner did not
submit the required documents with the tender papers and
hence clause 1.16 of Special Conditions would not be
applicable in the present case.
6. Learned counsel appearing for the respondent raised an
objection regarding maintainability of the writ petition and
in this regard reliance has been placed upon the judgment of
Supreme Court in case of National Highway Authority of India
v. M/s Ganga Enterprises and another1 in which the Supreme
Court held with the facts that, in terms of the tender
document the respondent gave his bid or offer which was in
two parts. The first part being an offer that the bid would
not be withdrawn during the bid validity period and/or that
on acceptance the performance security would be furnished
and the agreement signed. The second part of the offer
dealt with the terms and conditions pertaining to the
performance of the contract of collection of tolls, if the
offer was accepted.
7. The facts as mentioned in that case, the admitted
position was that 120 days of the validity period of the
tender would have come to an end on 28th November, 1997. In
August the technical bids were opened. In September the
financial bids were opened, wherein it was found that the
respondent was the highest bidder. On 20th November, 1997
the respondent withdrew his bid.
8. Therefore, the facts of that case are that both the
technical and financial bids of the respondent were opened
and he was found to be the highest bidder and it was the
condition that he would not withdraw the bid during the bid
validity period, but he withdrew his bid on 20th
November,1997 i.e. before the expiry of 120 days.
9. But, in the facts and circumstances of the present
case, which is quite different to the above case, the
petitioner did not submit the required documents as
mentioned in clause II, III & V of Special Conditions No. 3
with his tender papers and despite opportunity afforded to
him, he did not submit the same and hence he was not
eligible to participate in the tender as his tender itself
was defective and not supported with relevant documents, his
financial bid was not open, therefore, clause 1.16 of the
Special Conditions was not at all applicable under which the
EMD amount could be forfeited.
10. For the reasons mentioned hereinabove, we are of the
opinion that the forfeiture of the EMD amount is without any
basis and also not inconsonance with the tender conditions.
11. In view of above discussions, we allow this writ
petition. Accordingly, the impugned order dated 09.01.2007,
forfeiting the EMD amount is hereby quashed. The
respondents are directed to refund the EMD amount i.e. Rs.
1,50,000/- to the petitioner within a period of three months
from the date of receipt of a copy of this order. No order
as to costs.
Judge
