JUDGMENT

Mahendra Kumar Goyal, J. - The petitioner, a 'AA' class contractor, has filed this writ petition assailing the validity and legality of the order dated 1.11.2021 passed by the second appellate authority as well as the order dated 23.9.2021 passed by the first appellate authority under Rajasthan Transparency in Public Procurement Act, 2012 (for brevity-'the RTPP Act'), for quashing and setting aside the order dated 7.12.2021 passed by the respondent no. 2 as also the demand of additional performance security.

2. The facts in brief are that the petitioner submitted its bid in pursuance of the NIT no. 1/2020-21 issued by the respondent no. 2 for the work of "Retrofitting Works including Construction of Local Sources for conjunctive use, new CWR & OHSRs, connecting these OHSRs with existing Rising Mains, Pipeline from OHSRs to VTCs, Pipeline network inside the village, providing Functional Household Tap Connections (FHTC) including Geo tagging and O & M work (upto VTC) to be carried out under Jal Jeevan Mission (JJM) for Bisalpur-Tonk-Niwai Water Supply Project (Package-I)". On standing lowest bidder, work order dated 4.8.2021 was issued in its favour wherein, a demand of additional performance security to the tune of Rs. 6,27,08,766 was raised. Allegation that demand so raised was without any basis and was in violation of principles of natural justice, the petitioner preferred a first appeal under Section 38(1) of the Act of 2012 which came to be dismissed vide order dated 23.9.2021. This order was unsuccessfully challenged by the petitioner by way of a second appeal under Section 38(4) which came to be dismissed by the second appellate authority vide order dated 1.11.2021. Thereafter, the respondent no. 2 issued a notice dated 10.11.2021 calling upon the petitioner to execute and sign the contract agreement in pursuance of work order dated 4.8.2021. Initially, the petitioner has assailed both these orders passed in appeals along-with demand of additional performance security; but, during pendency of the writ petition, the respondent no. 2 passed an order dated 7.12.2021 whereby, the tender process of abovestated NIT was cancelled, the petitioner was required to deposit a sum of Rs. 2.302 crores being 2% of the estimated cost of the work with debarment from participation in the re-invitation of the bids for the subject tender. By way of an amendment in the writ petition, the validity of this order has also been assailed.

3. The respondents in their reply have raised preliminary objection as to maintainability of the writ petition alleging that it suffers from the vice of concealment of material facts. It is averred that while submitting the bid, the petitioner has furnished an undertaking as also a declaration that it has read, understood all the terms and conditions of the bid documents including those in addenda issued by the department and the same were accepted by it without any deviation. It is averred that demand of additional performance security is pursuant to Circular dated 27.2.2019 incorporated in the terms and conditions of the bid documents which was accepted by the petitioner with open eyes without any demur against such condition. It is stated that in pursuance of the NIT, a pre-bid meeting was held on 18.3.2021, which was neither attended by the petitioner nor, he raised any objection to the aforesaid condition. It is pleaded that once the petitioner has participated in the NIT having accepted and resorted to its terms including the applicability of the Circular dated 27.2.2019, it is estopped from assailing the same.

4. On merits of the case, it was submitted that the respondents were well within their competence to provide for additional performance security in case of abnormally low bid. It was stated that similar conditions providing for the additional performance security were also incorporated in the various NITs issued by the answering respondent such as work of augmentation-cum-reorganisation of Sonwa