The performance guarantee must be calculated by excluding the starting date from the timeline, validating the contract and reversing its termination.

JUDGMENT

Sanjeev Sachdeva, J. (Oral)--The hearing was conducted through video conferencing.

2. Learned counsel for respondent submits that reply to CM Application No.13915/2021 has been filed vide diary No. E-380690/2021 on 22.05.2021. However, the same is not on record, but a copy has been furnished on the e-mail of the Court Master. The same is taken on record. The Registry is also directed to place the reply on record.

3. Learned counsel submits that the reply along with its documents be read in addition to the short reply to the writ petition filed by the respondents.

4. Petitioner impugns termination letter dated 18.08.2020, whereby the contract awarded to the petitioner has been rescinded on the ground that he has failed to submit the requisite performance guarantee even after 60 days from the issue of Letter of Award (LOA) i.e. 03.01.2020 and further, every member/partner as an individual or as a partnership firm/joint venture has been debarred from participating in the re-tendering process and the earnest money deposit forfeited.

5. Learned counsel for the petitioner submits that the termination is bad in law inasmuch as the performance guarantee was submitted on the 60th day and not on the 61st day as alleged by the respondents. He submits that since the performance guarantee was submitted within time, the termination on the ground that it was not submitted even after 60 days is bad in law and the consequential debarment of the petitioner and the proprietor as well as the forfeiture of the earnest money deposit is liable to be set aside.

6. Learned counsel appearing for the respondent submits that the performance guarantee was submitted on the 61st day from the date of issuance of the Letter of Award (LOA) and not on the 60th day as alleged by the counsel for the petitioner. She submits that in terms of the Letter of Acceptance, the performance guarantee was to be submitted within 21 days, which was extendable to 60 days by the competent authority and since the petitioner had failed to submit the performance guarantee within 60 days, respondents had rightly terminated the contracted, debarred the petitioner and forfeited the bank guarantee.

7. The facts leading to the present petition are that on 26.07.2019, a notice inviting bids was issued by the respondent for indoor and outdoor RRI Signalling work at B-Panel and addition and alternation at Anand Vihar station in connection with part commissioning of 3rd and the 4th line between Sahibabad-Anand Vihar in Delhi Division of Northern Railway.

8. Petitioner submitted his bid and his bid was accepted and a Letter of Acceptance dated 03.01.2020 was sent by e-mail on 03.1.2020 at 15:16:31.

9. The admitted position is that as per the Letter of Acceptance, the performance guarantee was to be submitted as per the General Conditions of Contract (GCC), tender document.

10. As per the General Conditions of Contract, the successful bidder had to submit a performance guarantee within 21 days from the date of issue of Letter of Acceptance (LOA). Extension of time for submission of performance guarantee beyond 21 days and upto 60 days from the date of issue of Letter of Acceptance can be given by the authority, who is competent to sign the contract again. However, a penal interest of 12% per annum is to be charged for the delay beyond 21 days. It further provides that in case the contractor fails to furnish the requisite performance guarantee even after 60 days fro