The timing of offer acceptance and withdrawal in relation to EMD forfeiture is crucial in determining the applicability of tender clauses and the entitlement to EMD return.

JUDGMENT

Subramonium Prasad, J.

1. The Petitioner has approached this Court for the following reliefs:

"i) Issue a writ of mandamus or any other writ, order or directions to be issued to restrain the Respondent No.3 from forfeiting 100% of the EMD deposited in the form of FDR No. 530401038029902 dated 22.07.20 19 with the Respondent No. 4 Bank against the Tender No. MCF/CMG/BH/ETN- 08/2019-20 dated 09.07.2019; and/or

ii) Issue a Writ of mandamus or any other Writ, order or directions to be issued to the Respondent No.3 to adhere to the pre-existing clause no. 16 technical bid of the notice inviting tender dated 09.07.20 19; and/or

iii) Pass such other order or orders as may be deemed fit and appropriate under the facts and circumstances of the case."

2. Shorn of unnecessary details, the facts leading to the instant writ petition are as follows:

i. It is stated that Respondent No.3/Master Control Facility (MCF) issued a Notice Inviting Tender (NIT) dated 09.07.2019 bearing No. MCF/CMG/BH/eTN-08/2019-20 for construction of pre-engineered steel building for LEOP Control Centre (LCC) for Master Control Facility at Bhopal including civil, PH, electrical, air-conditioning and allied works and the estimated cost of the tender was Rs.18.0165 Crores.

ii. It is stated that the tender document was to be downloaded from 10:30 AM on 10.07.2019 to 11:30 PM on 19.07.2019. The bid clarifications were to be sought from 10:31 AM on 10.07.2019 to 2:30 PM on 20.07.2019. The pre-bid meeting for the said tender was to be held on 23.07.2019 and the last date for replying to the bid clarifications was 24.07.2019 upto 5:00 PM. The last date for receiving the tender was 26.07.2019 upto 2:30 PM. The technical bids were to be opened on 26.07.2019 at 3:00 PM.

iii. Earnest Money Deposit (EMD) for the sum of Rs.28.02 lakhs was to be deposited by the Petitioner. The Petitioner herein participated in the said tender on 25.07.2019 and deposited a sum of Rs.28,02,000/- towards EMD.

iv. It is stated that on 05.08.2019, the Petitioner sent a letter to the Respondent No.3 stating that there had been an inadvertent clerical error in the tender as they have not taken into consideration the GST component. The letter further states that the Petitioner quoted a sum of Rs.16,92,35,282.70/- and they would like to modify the bid to Rs.19,45,87,340.00/- to include the GST component.

v. Material on record discloses that on 06.08.2019, i.e. on the very next day, Respondent No.3 issued the work order in favour of the Petitioner accepting the offer of the Petitioner at Rs.16,92,35,282.70/- which had been submitted by the Petitioner at the first instance.

vi. It is stated that even after the work order was received on 06.08.2019, the Petitioner wrote a letter to Respondent No.3 on 08.08.2019 stating that there was some clerical error as they had not included the GST component in the quoted rates and the same had been pointed out by the Petitioner on 05.08.2019..

vii. It is stated that further letters were sent to Respondent No.3 on 16.08.2019, 12.09.2019, and 01.10.2019.

viii. Material on record further indicates that on 01.10.2019, the Petitioner submitted a letter reiterating the averments in the letters dated 05.08.2019, 08.08.2019, 16.08.2019, 12.09.2019 requesting the Respondent No.3 to take a decision on the letters submitted by the Petitioner regarding the clerical error crept in the tender. It is further stated that Respondent No.3 is not willing to consider the request of the Petitioner and the EMD of Rs.28,02,000/- should be returned to the Petitioner.

ix. On 13.11.2019, Respondent No.3 wrote a letter to the Petitioner conveying that due to non fulfilment of contract conditions, the work order has been cancelled and 100% of the EMD has been forfeited.

x. The Petitioner thereafter gave a representation dated 14.11.2019 to Respondent No.4/Union Bank of India placing reliance upon Clause 16 of the Notice Inviting Tender and contended that as per the tender, Respondent No.3 has the