The court emphasized the importance of fair administrative actions, reasonableness, and public interest in tender matters, and held that non-receipt of offer letter and unfair debarring warranted quashing of the impugned decision.

S. RAVINDRA BHAT, J.

1. The grievance in this petition, under Article 226 of the Constitution of India, is with respect to cancellation of a bid and consequential forfeiture of the earnest money deposit (EMD) and subsequent black listing of the petitioner, from participating in further tender process. The petitioner had successfully bid for the tender (hereafter “NIT”) for the works of strengthening of road surface of outer ring road from Modi Mill to Chirag Delhi (Masjid Moth).

2. The facts are that the petitioner had succeeded in the tender floated by the Government of NCT on 12.01.2018, which was for strengthening of road surface of outer ring road from Modi Mill to Chirag Delhi (Masjid Moth). Bids and related documents were to be submitted by 22.01.2018. In terms of the tender conditions the bid was open for acceptance for a period of 60 Days from the date of opening of tenders/financial bid. The petitioner furnished its bid on 20.01.2018, together with earnest money of Rs. 19,33,900/-.

3. It is undisputed that the petitioner's bid was deemed lowest as it was lower by 38% of the estimated cost (of the work). The controversy arises thereafter; the petitioner contends that it never received the acceptance letter or any communication; the respondent NCT, on the other hand states that the competent authority accepted the tender on 01.02.2018 and consequently an offer letter was issued to the petitioner on 02.02.2018. The terms of the contract granted 60 days time to public agency (GNCTD) to communicate its formal acceptance from the bid opening date. It inter-alia provided as follows:

“13. The tender for the work shall remain open for acceptance for a period of 60 Days from the date of opening of tenders/financial Bid. If any tenderer withdraws his tender before the said period or issue of letter of acceptance whichever is earlier, or makes any modifications in the terms and conditions of the tender which are not acceptable to the department, then the Government shall, without prejudice to any other right or remedy, be at liberty to forfeit 50% of the earnest money as aforesaid. Further, the tenderer shall not be allowed to participate in the re-tendering process of the work.”

4. The petitioner approached this Court complaining against the order of 17.02.2018, by which, its bid was cancelled on the ground that the condition requiring it to furnish the performance bank guarantee was not complied with within the time stipulated. The impugned order/letter reads as follows:

“Strengthening of road surface of Outer Ring Road from Modi Mill to Chirag Delhi (Masjid Moth)-Tender regarding

Ref: This office letter no 54(142)AB/EE/SER-II/PWD/2017-18/253 dated 02.02.2018

Vide above referred letter you were intimated that your tender for the subject work has been accepted on behalf of President of India at your tendered amount of Rs. 5,99,48,171/-. You were also requested to furnish the performance guarantee of Rs. 29,97,409/- within 7 days of issue of the above referred letter but you have failed to furnish the prescribed performance guarantee within the prescribed period as mentioned in Schedule F of NIT. In view of above, you are liable for forfeiture of your earnest money amounting to Rs. 19,33,812/-.

Therefore I, Rajinder Kumar Sharma, EE, SER-2, PWD in accordance to NIT conditions forfeit to the President of India, your earnest money amounting to Rs. 19,33,812/-. You shall not be allowed to participate in the re-tendering process of the work.”

5. The petitioner contends that the allegations regarding the communication of acceptance by a letter of 02.02.2018 are factually unfounded and in fact appears to be false. Learned counsel relied upon the material on record in the form of inter se correspondence between the postal authorities and the PWD to say that the tracking report which reflects delivery of the postal package, nowhere reflected that in fact the letter dated 02.02.2018 was ever delivered to the petitioner. It is submitted th