BADAR DURREZ AHMED, J (ORAL)

1. This writ petition pertains to the notice inviting on-line bids dated 09.02.2016 issued by the NTPC Limited (the respondent herein) for Ash Dyke Package for Mouda Super Thermal Power Project, Stage-II (2 x 660 MW) located at Mouda in Nagpur district, State of Maharashtra, India. The petitioner participated in the said bidding process and submitted its on-line bid on 22.03.2016. The petitioner is aggrieved by the letter dated 31.03.2016 which it received from the respondent on 07.04.2016 whereby the bid security offered by the petitioner in the form of the bank guarantee dated 18.03.2016 for the value of Rs. 1,42,94,000/- issued by State Bank of India, Nagpur, was returned on the ground that the bid security was not as per the bidding document.

2. It is an admitted position that the bank guarantee which was submitted by the petitioner was not in the exact format as prescribed under bidding documents. The bank guarantee as submitted by the petitioner along with its bid contained an additional clause which was to the following effect:-

“Notwithstanding anything contrary contained in any law for the time being in force or banking practice, this guarantee shall not be assignable or transferable by the beneficiary. Notice or invocation by any person such as assignee, transferee or agent of beneficiary shall not be entertained by the Bank. Any invocation of guarantee can be made only by the beneficiary directly.”

NTPC requires that this clause in the bank guarantees which were issued earlier by the State Bank of India be deleted because it restricted the power of NTPC to assign the bank guarantee. In point of fact, after the proforma for the bank guarantee for the bid security, which was part of the bid documents there are several notes appended. Notes 4 and 5 are relevant and they read as under:-

“4. While getting the Bank Guarantee issued, Bidders are required to ensure compliance to the points mentioned in relevant Form of Bank Guarantee Verification Check List enclosed in Section-VII of bidding document. Further, Bidders are required to fill up this Form and enclose the same with the Bank Guarantee.

5. In case, Bank Guarantee is getting issued from State Bank of India, Bidder to take note of NTPC letter ref. NTPC/FC/CS/BG/01 dated 03.09.2014 and SBI letter ref. CAG-1/AMT-1/2014-15/370 dated 04.09.2014 attached with Terms & Conditions of Contract.”

3. Note 4 extracted above clearly draws the attention of bidders to submit the bank guarantee after the verification check list is gone through and answered as “Yes” or “No” against each of the items specified therein. Serial No.6 of the bank guarantee verification check list of bid security requires the bidder to answer the question-“Does the bank guarantee compare verbatim with the proforma prescribed in the bidding documents?” Similarly serial no.9 requires the bidder to answer the question –“whether the bank guarantee has been issued by a bank in line with the provisions of bidding documents?” Both these questions have to be answered either in the affirmative or in the negative. It is fairly stated by the learned counsel for the petitioner that both these questions were answered in the affirmative. In other words, the petitioner had confirmed that the bank guarantee submitted by them as bid security was comparable verbatim with the proforma prescribed in the bidding documents and secondly that the said bank guarantee issued by the bank (State Bank of India) was in line with the provisions of the bidding documents.

4. But, as pointed out above, the bank guarantee submitted by way of bid security by the petitioner, in fact, did not compare verbatim with the proforma bank guarantee stipulated under the bidding documents. The bank guarantee submitted by the petitioner contains the above extracted clause which has been specifically deleted by the respondents by virtue of the bidding documents.

5. Furthermore, note 5 referred to above clearly drew