Compliance with the statutory requirement of EPF contribution does not render a bid nonresponsive.

SANJEEV SACHDEVA, J.

WP(C) 7094/2014 & CM No.16635/2014, WP(C)7134/2014 & CM No.16815/2014, WP(C) 8109/2014 & CM No.18909/2014 & WP(C) 8543/2014 & CM Nos.19718/2014, 7731/2015

1. Since all these petitions involve common questions of fact and law, the same are being taken up together. All the petitioners in the respective petitions seek quashing of the award of contract to respondent No.3 by respondent Nos.1 & 2 in the respective petitions.

2. All the four tenders, which are the subject matter of the four petitions, pertained to provisions of security services. In W.P.(C) No.7094/2014, the respondent No.1 had invited tenders for providing security services and the last date for submission of the bids in the said NIT was 17.02.2014. In W.P.(C) No.7134/2014, the last date for submission of the bids was 14.02.2014. In W.P.(C) No.8109/2014, the last date for submission of the bids was 06.06.2014 and in W.P.(C) 8543/2014, the last date for submission of the bids was 20.08.2014.

3. As per the respective NITs, the bidders were to abide by and comply with all relevant laws and statutory requirements under various laws. The issue, in the present case, revolves around the contribution of the employer to the Employee Provident Fund (EPF).

4. The contention of the petitioner is that the rate to be quoted by a bidder had to conform to the statutory minimum wage along with various other statutory contributions payable to the employee and the bid of any bidder quoting a rate below the minimum wage or the statutory contribution was a non-responsive bid and was liable to be rejected. Reliance is placed on clause 7.1 of section 4 which reads as under:

“7. WAGE DISBURSAL--

7.1 The Contractor shall pay to the Personnel deployed at such rates which should not be less than the minimum prescribed rate plus admissible EPF, ESI, Bonus etc. calculated at prevailing rates as per rules"

5. The crux of the present matters concerns the EPF contribution, which admittedly is at the rate of 13.61%. The contention of the petitioner is that the EPF contribution should be 13.61% of the minimum wage, which admittedly was Rs 8086.00, and the bid of any party quoting a rate showing EPF contribution at below 13.61% of Rs 8086.00 was a non-responsive bid and was liable to be rejected. It is contended that the respondent No.3 had quoted a rate showing EPF contribution at the rate of 13.61% of Rs 6500/-which was below the minimum wage of Rs 8086.00 and as such, its bid was non-responsive and was liable to be rejected.

6. Reliance is placed on the decision of the Division Bench of this Court in MIT2C Security and Facilities Private Limited versus Government of NCT & Others : 2013(205) DLT 288, wherein this Court in para 22 held as under:-

“22. It is evident that the statutory minimum wages notified for the class of employment concededly is Rs.8008 per month. The arguments of the respondents about the EPF benefits payable only to the extent of Rs.6500/- is because there has been no amendment in the provisions of the Employees Provident Fund Act. The argument of the respondents, in this Court's opinion is unacceptable, to put it mildly. The compulsion to pay at least the minimum wage fixed statutorily is absolute. In other words, no employer can say that he will not pay such minimum wages. If he does pay anything less, it is under pain of prosecution, because doing so would be committing an offence. In fact, a person who is asked to accept wages at less than the notified rates is considered in law and under the Constitution to be working as "forced labour" (ref. State of Rajasthan v Sanjit Roy AIR 1983 SC W.P.(C) 4056/2013 Page 20 328, "4.....where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23"). In these circumstances, for the state to countenance an argument that amounts towards provident fund