The acceptance of a bid within the validity period creates a binding contract, and a show cause notice must have a basis.

JUDGMENT :

1. The writ petition and an application for interim relief made therein have been taken up for hearing. The writ petitioner has asked for refund of the earnest money of Rs. 39,91,535/- deposited by the writ petitioner against e-tender for construction of work of Purbabishnupur-Raidighi Road-Chainage from 0.00 KMP to 19.630 KMP strengthening work in the district of 24 Parganas (South).

2. Learned Advocate appearing for the petitioner has submitted that, the petitioner participated in the e-tender dated July 11, 2018 issued by the Public Works (Roads) Directorate. He has referred to the bid validity clause of the tender documents. He has submitted that, the bid tender clause requires the bid to remain valid for a period not less than 120 days from the date of submission of the bid. The clause proceeds to lay down that, if the bidder withdraws the bid during the period of bid validity, his earnest deposit will be forfeited. He has referred to the letter dated December 13, 2018 by which, the petitioner placed on record that, the petitioner submitted the bid on August 3, 2018. The validity period of the bid expired on November 30, 2018 on expiry of 120 days from the date of submission of the bid. Consequently, the petitioner wanted cancellation of the bid and refund of the earnest money deposit. He has submitted that, the authorities purported to accept the bid of the petitioner on December 3, 2018. Consequently, the petitioner having withdrawn the bid after the expiry of 120 days from the date of submission of the bid, the purported acceptance is invalid. He has referred to the letter dated November 26, 2018 of the authorities and has submitted that, the claim that, such acceptance of bid was posted on November 26, 2018 is belied from the document at page 80 of the writ petition. He has referred to Sections 3 and 4 of the Contract Act, 1872 and submitted that, since, the bid of the petitioners stood withdrawn subsequent to the expiry of 120 days from the date of submission of the bid, the purported acceptance of the bid is of no consequence. Therefore, the authorities cannot invoke the provisions of the bid validity clause in the tender documents to forfeit the earnest money deposit or to take any coercive measure against the petitioner. The show-cause notice dated March 20, 2019 therefore is bad. He has relied upon All India Reporter 1966 SC 543 (Bhagwandas Goverdhandas Kedia v. M/s. Girdharlal Parshottamdas and Co.) and All India Reporter 2006 Bombay page 231 (Pacific Refractories Ltd. v. Stein Heurtey India Projects Pvt. Ltd.) in support of his contentions. He has submitted that, the show-cause notice as also the purported forfeiture of the earnest money deposit should be quashed. The authority should be directed to refund the earnest money deposit forthwith.

3. Learned Advocate appearing for the State has relied upon the Bid Validity Clause and Clause A.11 relating to award of contract of the tender documents. He has referred to the conduct of the petitioner and submitted that, the bid of the petitioner was accepted within the validity period prescribed under the tender conditions.

4. Therefore, there was no bar in issuing the work order in favour of the petitioner. He has relied upon Clause 30 of the Tender Clause relating to forfeiture of earnest money. He has submitted that, Clause 30(b) of the tender documents was invoked for the purpose of forfeiting the earnest money deposit. He has referred to the show-cause notice and submitted that, the show-cause notice cannot be a subject matter of the writ petition through an interim application as such show-cause notice has no nexus with the forfeiture of the earnest money deposit. He has referred to the various pleadings made on this behalf in the affidavit-in-opposition. He has submitted that, petitioner is not entitled to any relief.

5. The Public Works (Roads) Directorate had issued a notice inviting electronic tender no. 47 of 2018-2019 dated July 11, 2018. The petition