Point of Law : Tender - Blacklisting - Order of blacklisting has an effect of depriving a person of equality of opportunity in the matter of public contract.

JUDGMENT :

A.S. Chandurkar, J.

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

2. The challenge raised in this writ petition is to the order dated 02.03.2021 passed by the Food Corporation of India (for short, FCI) terminating the contract that was issued to the petitioner for transportation of foodgrains from Hoshangabad (Madhya Pradesh) to Badnera (Maharashtra) as well as from Hoshangabad to Dhamangaon (Maharashtra) for a period of two years. Besides such termination of the contract, the earnest money deposited by the petitioner has been forfeited. The petitioner has also been debarred from participating in any future tender of the FCI for a period of five years. The grievance raised by the petitioner against the aforesaid order was considered by the Grievance Redressal Committee constituted by the FCI and the same was also rejected on 28.05.2021. That order is also under challenge in this writ petition.

3. The facts relevant for adjudicating the writ petition are that on 13.10.2019 a tender notice was issued by the FCI inviting bids for transportation of foodgrains from Hoshangabad (MP) to Badnera(MS) and Hoshangabad (MP) to Dhamangaon(MS). The bid of the petitioner being the lowest, it was accepted by the FCI and on 20.03.2020 work order was issued to it. As per Clause 7 of the Model Tender Format (MTF) that was published by the FCI, a successful bidder was required within a period of fifteen working days of acceptance of the tender to furnish security deposit for due performance of the obligations under the contract. As per that Clause on failure to submit such Bank Guarantee within a period of fifteen working days of acceptance of tender, a further extension of fifteen working days was permissible subject to levy of penalty. In the event of further failure to submit the Bank Guarantee within the extended period, it was stated that the contract would be summarily terminated and earnest money was liable to be forfeited. The contractor was also to be debarred from participating in any future tender of the FCI for a period of five years. On 01.10.2020 the FCI issued notice to the petitioner in which it was stated that on 08.06.2020 the petitioner had submitted various documents but the Bank Guarantees had not been furnished. It was stated that submission of the Bank Guarantee was a pre-requisite of the contract and the same was required as per Clause 7 of the MTF. In view of Covid-2019 pandemic, the FCI by that notice granted final opportunity to furnish Bank Guarantees within a period of three days of issuance of the said notice failing which it was stated that a decision would be taken as per the provisions of the MTF.

4. The petitioner on 28.12.2020 replied to the aforesaid notice and conveyed to the FCI various difficulties faced by it as the reason for not being able to furnish the Bank Guarantees. It also referred to an order passed by the Collector, Amravati with regard to various restrictions that were imposed on account of Covid-2019 pandemic. It is thereafter that on 02.03.2021 the FCI noted that the Bank Guarantees as required had not been furnished and therefore the petitioner had violated Clause 7 (iv) of the MTF. It was stated that on this count the contract was terminated with immediate effect by forfeiting the security deposit. The petitioner was also debarred from participating in any future tender of the FCI for a period of five years. The petitioner made a representation with the Grievance Redressal Committee constituted by the FCI but that representation was not favourably considered and the same was accordingly rejected. The aforesaid has thus given rise to the present writ petition.

5. Shri S.P. Dharmadhikari, learned Senior Advocate for the petitioner at the outset submitted that the petitioner was principally challenging the order of blacklisting and the same having effect for a period of five years. The petitioner was not desirous of completing the contract that was awar