The submission of a bogus Bank Guarantee by a bidder justifies a two-year ban under tender conditions, as the term 'certificate' includes documents.

ORDER :

S.Sounthar, J.

The writ petition is filed challenging the order passed by the respondent dated 26.02.2024 blacklisting the petitioner from participating in the tender floated by the respondent and its subsidiaries for a period of two years and for further direction to the respondent to allow the petitioner and its associate companies to participate in the tenders floated by the respondent and its associates.

2. The petitioner is a company engaged in the business of renewal energy generation for the past 15 years and has experience in providing services to multiple Government entities and public sector undertakings. The respondent is a public sector enterprise engaged in the business of renewable energy Generation. The respondent issued a tender dated 04.05.2023 for setting up Wind Power Projects on Pan India basis with operation and maintenance for ten years. As per the tender notice issued by the respondent, the bid documents submitted by bidders shall be accompanied with a Bank Guarantee. As per the tender conditions, any bank guarantee submitted in physical form, must also be verified through the respondent's platform for Structured Financial Messaging System (herein after referred to as SFMS), failing which the bid will be summarily rejected.

3. The petitioner submitted its technical and financial bid as per the terms of tender along with Bank Guarantee for a sum of Rs.1,91,84,000/- which was arranged by one Ashok Kumar and Varadarajan. It is claimed by the petitioner that in the Bank Guarantee submitted by the petitioner, a typographical error with regard to the date was pointed out by the respondent. The Federal Bank, who issued a Bank Guarantee, sent an e-mail to the petitioner dated 26.06.2023 acknowledging the typographical error with regard to the date. Subsequently, on the basis of the information furnished by the respondent, the petitioner came to understand that it had been defrauded by Ashok Kumar and Varadarajan, who furnished it with an improper Bank Guarantee. Therefore, the petitioner was constrained to file a police complaint against the said persons on 10.07.2023 with Karnataka State Police and informed the same to the respondent. Inspite of the action taken by the petitioner against the person who defrauded the petitioner, the respondent issued a show cause notice on 25.11.2023 stating that the petitioner submitted a bogus Bank Guarantee and hence why action should not be taken against the petitioner by invoking Clause 3.9.1(vii) (e) of Section 3 of (Volume -IA). The petitioner submitted a reply to the respondent on 01.12.2023 explaining that bonafidely the petitioner availed the services of Ashok Kumar and Varadarajan for securing Bank Guarantee to be submitted along with bid and they defrauded the petitioner by furnishing fake bid guarantee. The respondent was also informed that the criminal action had been lodged against the said two persons. Further it was stated by the petitioner that as per Clause 3.9.1 (vi) of tender, if any bid submitted without bid guarantees or submitted with part amount etc., the bid shall be summarily rejected. In the case on hand, the bid guarantee submitted by the petitioner found to be invalid and therefore as per the Clause 3.9.1 (vi) of tender, the respondent can only reject the tender submitted by the petitioner and it is not open to the respondent to invoke Clause 3.9.1 (vii) of tender and impose a ban of two years. Subsequently, the second respondent without properly considering the explanation submitted by the petitioner, by impugned order blacklisted the petitioner for a period of two years from participating in any of the tenders floated by the respondent or its subsidiaries. Aggrieved by the same, the petitioner has come before this Court.

4. The learned Senior Counsel appearing for the petitioner would submit that reading of show cause notice issued by the respondent would indicate that the respondent came to the conclusion about invalidity of Bank Guarantee sub