The authority of the State respondents to insert additional grounds for forfeiture of earnest money in the NIT to ensure genuine bids in government contracts.

JUDGMENT :

1. Heard Mr. D.A. Kaiyum, learned counsel for the petitioner as well as Mr. S. Dutta, learned Standing Counsel, P&RD Department.

2. The petitioner’s case is that the petitioner took part in the tender process for settlement of the Balisatra Bi-Weekly Market for the year 2021-22 vide NIT dated 10.05.2021. The highest bidder withdrew his tender. The petitioner, who was the second highest bidder, was issued a letter dated 26.07.2021, directing him to submit the remaining documents in terms of Clause 10 of the tender notice within 3 days, as he had not submitted the required documents along with his quotation, in terms of Clause 10 of the NIT. Thus, the petitioner was to submit his documents (except Court fee and earnest money) within 3(three) days, as the market was to be settled with the petitioner in terms of Clause 10 of the NIT.

3. Clause 7 and Clause 10 of the NIT are re-produced hereinbelow as follows :

“7. It is mandatory to submit the required court fee and earnest money by the tenderer with tender. No tenderer shall be allowed to withdraw tender after submission of tender. On that occasion, or if any tenderer refuse to accept lease, their earnest money will be forfeited.

“10. The highest bidders would be considered for settlement of all the hats/ghat/fisheries. If the highest bidders did not submit (except court fee and earnest money) the required documents, those tenderers would be allowed three days time to submit those documents. If the tenderer could not submit those required documents within maximum 3(three) days time, on that occasion his tender will be rejected and the earnest money will be forfeited and settlement shall be made to the next highest bidder as per the aforesaid terms and conditions.”

4. The petitioner could not submit his documents within 3 days and asked for further time to submit his documents. However, the respondents overlooked the tender of the petitioner, as he could not submit his tender documents within 3 days from the date of the respondents asking for the same in terms of Clause 10 and awarded the tender to another tenderer.

5. The petitioner is aggrieved by the refusal on the part of the respondents to return back his earnest money. The counsel for the petitioner submits that Clause 10 of the NIT dated 10.12.2021 cannot stand in the way of the respondents returning his earnest money, inasmuch as, the petitioner had not been selected for settlement of the market, in the absence of the required documents being furnished by him. Further, in terms of Rule 47(11) and 47(13) of the Assam Panchayat (Financial) Rules 2002, hereinafter referred to as the 2002 Rules, earnest money could be forfeited only on two conditions not being fulfilled, i.e., 1) if the tenderer failed to deposit 30% of the quoted amount within 7 days from the date of his selection and 2) In the event the authorities failed to provide the form of lease and stamp papers at the time of making the agreement. The petitioner’s stand is that in the absence of the above conditions for forfeiting earnest money provided in Rule 47(11) of the 2002 Rules, Clause 10 of the NIT could not be applied for forfeiture of the earnest money and the same would have to be returned to the petitioner.

6. The stand of the respondents, on the other hand, is that the Clause 10 of the NIT is not in conflict with Rule 47(11) and 47(13) of the 2002 Rules. The counsel for the respondents submit that the respondents have the competency and the right to insert Clause 10 in the NIT regarding forfeiture of earnest money, in addition to the conditions enumerated in Rule 47(11) and 47(13) of the 2002 Rules. He further submits that the petitioner did not make a challenge to Clause 10 of the NIT prior to participating in the tender process. The counsel for the respondents further submit that the petitioner having prayed for extension of time for submitting documents in terms of Clause 10 of the NIT, the petitioner cannot turn around and say that Clause 10 would