The court emphasized the importance of strict compliance with tender conditions and the exercise of judicial review in contractual matters, particularly when public interest is involved.

JUDGMENT :

A.S.Chandurkar, J.

1. Rule. Rule made returnable forthwith and heard the learned counsel for the parties.

2. The challenge raised in this writ petition is to the issuance of work order dated 07.05.2021 by the Executive Engineer, Lower Wardha Project, Division Wardha-second respondent in favour of the third respondent.

3. The facts relevant for considering the challenge to the issuance of the work order are that the second respondent on 18.01.2021 issued a tender notice calling upon interested bidders to submit their bid documents with regard to three works. The work at serial no.1 which is “construction of land development works (Part-I) of Gadegaon main minor off-taking @ R.D. 4995 M on Nandgaon Dy” is the subject matter of the writ petition. Pursuant to the tender notice three bidders submitted their bids. The technical bids were opened on 08.02.2021 and the bids submitted by the petitioner and the third respondent were found to be eligible. On opening of the financial bid on 12.03.2021 it was found that the financial bid of the third respondent was lowest and therefore as required by Clause 2.22.0 the third respondent was required to furnish additional performance security within a period of two working days. According to the petitioner, the third respondent furnished such additional performance security on the third working day and hence the third respondent ought to be debarred from the tender process for failure to submit the additional performance security within the prescribed time. Ancillary grounds also raised pertain to certain shortcomings in the documents submitted by the third respondent. In the aforesaid factual backdrop, the petitioner has challenged the issuance of work order to the third respondent as having been issued disregarding the mandatory tender conditions.

4. Shri S.D.Chopde, learned counsel for the petitioner has invited attention to various tender conditions and especially Clause 2.22.0. According to him, as per sub-clause (ix) thereof the lowest bidder was required to submit the additional performance security in the form of Demand Draft/Bank Guarantee or Fixed Deposit Receipt within two working days of opening of the financial bid. This period of two working days was not liable to be relaxed under any circumstances and therefore since the third respondent furnished such additional performance security beyond the period of two working days, the second respondent was not justified in issuing the work order to the third respondent. It was submitted that the financial bid was opened on 12.03.2021. 13.03.2021 was a Saturday and 14.03.2021 was a Sunday. The next two working days were 15.03.2021 and 16.03.2021. The third respondent submitted the additional performance security in the form of a Fixed Deposit Receipt on 17.03.2021 which was beyond the period of two working days. The learned counsel submitted that with regard to other works that were the subject matter of the same tender notice wherein the bids were to be submitted as per similar schedule, the bidders for other two works had furnished additional performance security within a period of two working days. Inviting attention to the Government Resolution dated 23.06.2020 which was also referred to in Clause 2.22.0 it was submitted that reading of paragraph 18 thereof indicated that the mandatory period of two days was not liable to be extended for any reason whatsoever. The third respondent had sought to rely upon a communication dated 11.05.2021 that was issued by the Branch Manager of the Bank of Maharashtra that on 15.03.2021 and 16.03.2021 there was a strike of bank employees due to which there were no banking transactions. Since the third respondent had approached the bank on 17.03.2021, the Fixed Deposit Receipt was issued on that date. On the aforesaid basis, it was submitted that the Executive Engineer had no authority to accept the additional performance security beyond the period of two working days. If the bid of the third resp