Delhi High Court: Petitioner accepted technical disqualification voluntarily; held to be withdrawal of tender under NIT Clause 9.4(a)(i); EMD forfeiture upheld; petition dismissed.
None ¶¶61
Clause 9.3 of the NIT does not apply because the technical bid was not found non-responsive by the respondents; the petitioner voluntarily accepted technical disqualification. ¶¶55
$~75
Through: Ms. Yukta Kathuria, Advocate.
versus
UNION OF INDIA & ORS .....Respondents Through: Mr. Shushil Kumar Pandey, SPC and Mr. Kamal Deep, GP with Mr. Hemant Kumar Mishra, Advocate for R-1 and R-2.
% Date of Decision: 10th February, 2025 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G E M E N T
TUSHAR RAO GEDELA, J.: (ORAL)
W.P.(C) 1568/2025
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EMD deposited by it at the time of submission of bid. Since there was no response received from the respondents, the petitioner was constrained to file the present petition.
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9.3 Refund of Earnest Money
The Earnest Money of the Tenderers whose Technical Bid is found not acceptable will be returned without interest within 30 days of declaration of result of technical evaluation after scrutiny of Technical Bid has been completed by the Employer subject to provisions of Clause 9.4(a) and Clause 9.4 (b). The Earnest Money of the Tenderers whose Technical Bid is found acceptable will be returned at the earliest after expiry of the final bid validity period and latest by the 30th day after the award of the contract subject to provisions of Clause 9.4(a) and Clause 9.4 (b). The bidder shall submit RTGS/NEFT Mandate Form as per Proforma given in Annexure VII, dully filled in.
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The Earnest Money (EMD) of the successful bidder shall be returned when the bidder has furnished the required Performance Guarantee in terms of Clause I of the Clauses of Contract
(Section-8) and signed the Agreement in terms of Clause 9 (a) of Conditions of Contract (Section-7).
9.4 The Earnest Money is liable to be forfeited automatically without any notice to bidder/Contractor
(a) if after bid opening, but before expiry of bid validity or issue of Letter of Acceptance, whichever is earlier, any Bidder
i. withdraws his tender; or
ii. makes any modification in the terms and conditions of the tender which are not
acceptable to the Employer
iii. impairs or derogates from the tender in any respect within the period of validity of the tender
iv. If the bidder does not accept the correction of his price during evaluation
(b) in case any information/document which may result in the Bidder’s disqualification is concealed by the Bidder or any statement/information/document furnished by the Bidder or issued by a Bank/Agency/Third Party and submitted by the Bidder, is subsequently found to be false or fraudulent or repudiated by the said Bank/Agency/Third Party.
(c) in the case of a successful Bidder, if the Bidder fails to furnish the Performance Guarantee within the period specified under Clause 1 of “Clauses of Contract”.
In case of forfeiture of Earnest Money as prescribed herein above, the Bidder shall not be allowed to participate in the retendering process of the work.”
(emphasis supplied)
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stipulations in Clause 9.3 of the NIT would govern such circumstances. Whereas, considering the acceptance of technical disqualification from the said tender voluntarily by the petitioner, would fall within the terms and conditions specified in Clause 9.4 of the NIT, particularly, sub-clause (a) and (i) which govern “withdrawal of tender” by the bidder. There is no iota of doubt that the voluntary acceptance of technical disqualification by the petitioner in the facts of the case would tantamount to withdrawal of its tender. That said, we are of the considered opinion that the EMD which has been forfeited by the respondents falls well within the four corners of Clause 9.4 of the NIT and respondents have not violated any term or condition of the NIT.
TUSHAR RAO GEDELA, J
DEVENDRA KUMAR UPADHYAYA, CJ
FEBRUARY 10, 2025 /aj
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3 issues framed by the court
Whether the petitioner's acceptance of technical disqualification amounts to withdrawal of tender under Clause 9.4(a)(i).¶¶8
1 provisions across 1 enactments
How this case reached the court
Email dated 26.06.2024 forfeiting Earnest Money Deposit and blacklisting the petitioner¶¶11
Respondent No. 3 (RITES) · 26.06.2024
Notice Inviting Tender (NIT) issued on 13.02.2024, last date for bid submission 24.02.2024¶¶17
Email dated 10.05.2024 confirming qualification of technical bid subject to verification of credential documents¶¶17
Email dated 15.05.2024 from petitioner accepting technical disqualification due to inability to arrange documents and site inspection¶¶18
Second NIT issued on 24.06.2024 with similar scope of work¶¶19
Email dated 26.06.2024 from respondent no.3 stating EMD forfeited as petitioner withdrew from tender process¶¶20
Legal notice dated 25.07.2024 served to respondent nos. 3 & 4 requesting consideration as L1 bidder or refund of EMD¶¶20
Petition filed under Article 226 and 227 of Constitution seeking issuance of letter of intent, quashing of email dated 26.06.2024, and refund of EMD with interest¶¶11
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
