JUDGMENT :

This writ petition is filed challenging Ext.P16 order, whereby the petitioner has been blacklisted from participating in tenders floated by the 1st respondent for a period of one year with effect from 05.01.2017 and the EMD of Rs.50,000/- has been forfeited.

2. Heard Sri M.A.Abdul Hakhim on behalf of the petitioner and Smt.K.V.Rashmi, Standing Counsel for respondents 1 and 2.

3. The petitioner, which is a registered firm, is involved in undertaking electrical works from Governmental and semi-Governmental institutions. The petitioner had undertaken the electrical contract of the building named “Thejaswini” situated in the 1st respondent Techno Park and the same was completed during 2006-2009, as can be seen from Ext.P1. As part of expansion, the respondents wanted to install two additional diesel generators in the said building. The 2nd respondent issued Ext.P6 dated 29.06.2016 inviting tenders for supply, installation, testing and commission of two numbers of diesel generator sets and modification of electrical panel, etc. Ext.P6 shows that the period of completion was three months and earnest money deposit of Rs.50,000/-was to be deposited and Rs.5,000/-plus tax at 5% was to be deposited towards cost of tender documents. The last date for submission of the e-tender was 20.07.2016. A pre-bid meeting was scheduled on 05.07.2016 at Park Centre Building, Technopark. The date of opening of the techno-commercial bid was 25.07.2016 and the tenderers were expected to give a firm period of 120 days for the tender from the date of opening of the bid. The petitioner participated in the tender process. The petitioner who submitted a bid for Rs.1,62,59,440/-was the lowest tenderer. On 17.11.2016, the 1st respondent sent Ext.P9 mail to the petitioner, requesting them to submit an additional bank guarantee for Rs.35,20,000/-(16% of Rs.2.2 crores) within 10 days to enable them to issue the work order. Respondents had relied on clause 4.6 of the instructions to the tenderer. On 18.11.2016, the petitioner sent Ext.P10 reply stating that they had already pointed out during discussions that rates were quoted without taking into account the requirement for additional performance guarantee. It was stated that since the notice inviting tender did not specify the PAC, there was no way in which they could have known whether the offer that they are making was 25 % less than the PAC and that they would be liable to provide an additional performance guarantee. On 28.11.2016 the respondents wrote to the petitioner stating that they are yet to receive a response regarding the submission of additional performance guarantee for Rs.35,20,000/-and granting them 10 more days for submission of such guarantee. On 01.12.2016, the petitioner informed that they had already sent a letter on 18.11.2016 explaining their position with regard to performance guarantee. Thereafter the respondents issued Ext.P13, wherein they informed the petitioner that the EMD for Rs.50,000/-submitted along with the e-tender will be forfeited and further action shall be taken regarding the tender, as per the procedure. On 20.12.2016, the petitioners wrote Ext.P14 letter in reply to Ext.P13 objecting to the decision to forfeit the EMD, pointing out that clause 4.4 of tender conditions does not permit such an action. It was also pointed out that the respondents had intimated the PAC as Rs.2.2 Crores only in Ext.P9 e-mail and that prior to the notice inviting tender and at the time of submitting the tender, there was no way in which the petitioner could have known the PAC. It was also pointed out that this vital information regarding the tender was concealed, which is against the CPWD norms. In Ext.P14, the petitioner had also made a suggestion that since the major item of the tender is the DG set, they will construct the necessary foundation and unload the DG set in the site within 15-20 days thereby assuring that the major item is already at site, which is a sufficient guarantee a