SUNIL B. SHUKRE, J.

1. Rule. Rule is made returnable forthwith and heard finally with the consent of Shri S.G. Jagtap, learned counsel for the petitioner, Shri S.Y. Deopujari, learned Government Pleader for respondent Nos. 1 to 4 and Shri A.S. Jaiswal, learned Senior Advocate i/b Shri G.E. Moharir, learned counsel for respondent No. 5.

2. Considering the facts admitted, as regards the issue involved in this petition, we do not find it necessary to reproduce entire facts of the case. Suffice it to state a few of them which would have bearing on the issue raised herein. A tender notice was issued for awarding the contract of work of Cement Concrete road between Zingabai Takli Godhani (Railway) Bokara and Koradi Road on a patch of National Highway No. 69, Tahsil & District - Nagpur. In response to this notice, bids were received by respondent Nos. 2 to 4. It was one of the essential conditions of the bidding document (see condition No. 7.2) that offer in envelope No. 2 must be accompanied by a Demand Draft (DD) or a Bank guarantee of appropriate amount of performance security. As per the condition contained in 2.8.4 of this document, it was clear that if the offer contained in envelope No. 2 was not accompanied by the performance security of the appropriate amount, the offer would be treated as invalid.

3. In the present case, although the petitioner was the lowest bidder, envelop No. 2 submitted by him was not in conformity with clause 2.8.4 and also clause 7.2 of the bid document. The DD that was contained in envelope No. 2 fell short of the requisite amount by Rs.30,708/-. These facts are not in dispute. But, according to the learned counsel for the petitioner, considering the fact that the petitioner was the lowest bidder, the deficiency so found in envelope No. 2, ought to have been viewed by respondent Nos. 1 to 4 as immaterial or as an insignificant deviation and, therefore, falling within the category of a substantially responsive financial bid under clause 26.2.

4. This has been seriously disputed by Shri Deopujari, learned GP for respondent Nos. 1 to 4 and also by Shri Jaiswal, learned Senior Advocate for respondent No. 5. Nobody appears for the newly added respondent Nos. 6 to 8.

5. On going through the bid document, we find that furnishing of a Bank guarantee or DD of the appropriate amount as performance security at the time of offer contained in envelope No. 2 is an essential condition. This could be seen from the disqualification clause No. 2.8. It would be convenient to reproduce the relevant portion of clause No. 2.8.

"Disqualification

Even through the tenderer meet the qualification criteria, they are subject to be disqualified if they have,

2.8.1 ..............

2.8.2 .............

2.8.3 ..............

2.8.4 The offer in envelope 2 without demand Draft/ Bank Guarantee of appropriate amount of performance security shall be treated as invalid offer.

6. The appropriate amount of the performance security to be furnished by the bidder is determined by the formula contained in clause 7.2 of the bid document. In the present case, the petitioner, on calculations made as per the formula, was required to furnish performance security of the amount of Rs.1,76,81,908/-, whereas, the petitioner furnished a demand draft towards performance security of Rs.1,76,51,200/-. Thus, this demand draft was in deficit of the performance security amount to the extent of Rs.30,708/-. We must state it here that there is no dispute about the short fall so determined as per clause 7.2 of the bidding document.

7. Now, the question would be as to whether this shortfall could be considered as an insignificant deviation within the contemplation of 26.2 of the bidding document or otherwise. In order to find out the answer to this question, we will have to consider the contents of clause 26.2. It reads thus :

"26.2 - A substantially responsive "Financial Bid" is one which conforms to all the terms, conditions, and specifications of the bidding document