A successful bidder in a tender is required to execute the agreement within the stipulated time and the tendering authority has the right to extend the period of the tender and the schedule of delivery as per the tender conditions.

JUDGMENT

R Raghunandan Rao, J. - The petitioner company is in the business of manufacture and sale of refined sunflower oil and other edible oils. It had participated in a tender, issued by the 3rd respondent, dated 29.01.2020, for procurement of 14,000 tins of refined sunflower oil with Agmark. The petitioner emerged as successful bidder in the e-Tender and e-Reverse auction held on 12.02.2020 and 13.02.2020. In accordance with the tender, the petitioner had also deposited Rs.4,92,000/- as Earnest Money Deposit (EMD).

2. The 3rd respondent vide letter dated 05.03.2020, had issued a 'Supply Order' for procurement of 35% of the total tendered quantity i.e., 4,900 tins, at the rate of Rs.1,447.25/- per tin, inclusive of all taxes. The petitioner also states that the supply order itself mentioned that the supply shall be made in accordance with the supply schedule issued by the Deputy Executive Officer of TTD and to execute an agreement for implementing the conditions mentioned in the tender notice. However, the respondents failed to furnish the supply schedule and did not co-ordinate with the petitioner company in executing the agreement.

3. As the country was subjected to a National Lockdown commencing from 25.03.2020, on account of the Covid-19 pandemic, the petitioner sought clarifications regarding the validity of the tender notice and supply order as condition No.14 in the tender notice itself stated that the tender would be valid only for a period of three months. The respondents did not give any clarifications. However, the 4th respondent, by a letter dated 01.07.2020, had requested the petitioner company to stop supply of sunflower oil until further intimation. On receipt of this communication, the petitioner, by an email dated 04.08.2020, sent to the 3rd respondent, requested for supply of schedule so as to execute the agreement. Later, the 4th respondent, by a letter dated 06.08.2020, sent a supply schedule to the petitioner requiring delivery for the period between 25.12.2020 to 25.05.2021 which was contrary to the terms mentioned in the tender notice and which stipulated that the supply would have to be made within three months. Subsequently, the 3rd respondent, by a letter dated 09.09.2020, requested the petitioner company to supply oil as per the terms of the tender notice. As the schedule given for the period from 25.12.2020 to 25.05.2021 was contrary to the terms of the tender notice, the petitioner, by letter dated 13.10.2020, sought clarification regarding the status of the tender. The petitioner also took the stand that since it would have to be understood that the tender notice was called off due to Covid-19 Pandemic, EMD paid by the petitioner should be returned. The petitioner also stated that the total EMD deposited by the petitioner was Rs.6,80,000/-. Apart from these contentions, the petitioner also set-forth its difficulty to hope that financial distress due to the Covid-19 pandemic and requested to return of the EMD.

4. The 3rd respondent, instead of addressing the show cause notice, had again sent a supply order letter dated 17.10.2020, wherein the petitioner is also asked to show cause as to how their conduct should not be treated as breach of conditions 14 and 33 of the tender document. The 3rd respondent again issued a show cause notice dated 29.10.2020, requesting the petitioner to show cause, within seven days, for breach of conditions 14, 33 and 38 as to why the petitioner should not be black listed for non performance of the tender notice. At the same time, the 3rd respondent again issued a fresh notice, inviting tenders for procurement of 15,000 tins of refined sunflower oil and thereupon, had issued the impugned order dated 03.12.2020, which was passed by the 2nd respondent. In the impugned letter, a direction to black listing the petitioner company for breaching the tender conditions 38, 21, 42 and 48 and for forfeiture of the EMD amount of Rs.1,78,000/-, apart from taking steps for recovery of