Heard learned counsel for the petitioner, learned counsel for the Bihar Industrial Area Development Authority and learned J.C. to A.A.G. IX for the State.

2 The petitioner seeks a direction upon the Executive Director, Bihar Industrial Area Development Authority (Respondent No.4) to allow him to execute the work of construction of compound wall at Industrial Area, Maranga, Purnia in the capacity of being the lowest bidder as per advertisement dated 3.2.2008 (Annexure-1), and further not to act pursuant to the subsequent open bid for the same set of construction work advertised on 24.2.2008 (Annexure-1/A).

3. The petitioner alongwith the other contractors applied against notice inviting tender published in daily newspaper "Hindustan" dated 3.2.2008 (Annexure-1). The petitioner was declared successful and on the financial bid being opened, he was found as the lowest tenderer having offered to work at the rate of .01 per cent less than the bill of quantity rates whereas the other tenderer had agreed to work at the bill of quantity rates. It is the admitted position that thereafter the authorities of the Bihar Industrial Area Development Authority (in short "BIADA") entered into negotiation with the petitioner, L-1, for lowering down the rate but the same could not succeed and, therefore, a fresh tender was resorted to by advertisement dated 24.2.2008 (AnnexureA/1) and after the second advertisement, the tenders were opened and the lowest tenderer made an offer to work at 10.01 per cent less than the bill of quantity rates whereas the petitioner also quoted rates at 0.8 per cent below the bill of quantity rates. The tenders were not finalized on account of the interim order passed by this Court in the present case.

4. Learned counsel for the petitioner states that the schedule of rates as quoted in the bill of quantity is as per Regulation 3.11 of the Technical Regulations of the BIADA. The schedule of rates means the rates as approved by the Executive Committee. It is, thus, submitted that the bill of quantity rates being the schedule of rates approved by the Executive Committee, the respondent-authorities cannot take stand that the rate quoted by the petitioner was excessive, since it was less than the approved rates of the Executive Committee of the BIADA itself.

5. It is further submitted by learned counsel for the petitioner that reliance placed by learned counsel for the BIADA on Regulation 9 of the said Technical Regulations is of no avail, as there was no provision in the notice inviting tenders that the BIADA shall negotiate with L-1 and if it feels that the rates are very high then BIADA may offer the lowest bidder its own rate based on market study and in case the lowest bidder refuses to come down to BIADA's satisfaction then it will go for a re-tender at its sweet will. It is contended that the petitioner is bound only by the terms of the said advertisement. According to learned counsel even as per Regulation 9 of the Technical Regulations, 2007, the BIADA has power to negotiate only with L-1 and if it feels that the rates quoted by L-1 are very high then the BIADA may offer the lowest bidder, its own rate based on market study whereas the petitioner having offered rates lower than the bill of quantity rates approved by the Executive Committee, he cannot be said to have quoted a very high rate. Learned counsel also states that the rates as per the said Regulation 9 quoted by the BIADA in the course of negotiation have to be based on market study but for the last 10 years, there has been no such market study done and thus, the action of the authorities is arbitrary and contrary to the Regulations itself. It is submitted by learned counsel that if the BIADA is permitted to re-tender then there would be no end to the process of re-tender to satisfy the authorities of the BIADA.

6. Learned counsel for the BIADA, on the other hand, submits that in the present matter, the authorities of BIADA have acted in accordance with t