The main legal point established in the judgment is that the enhancement of solvency, EMD, and security deposits in the tender documents was arbitrary, unreasonable, discriminatory, and mala fide, leading to the exclusion of small transport contractors from participating in the bid.

JUDGMENT :

B.R. SARANGI, J.

The petitioner is a transport contractor having valid transport license and belonging to rural area. He was awarded with the tender for transportation of food stuff for Mid Day Meal (MDM) in the year 2012-13 in the district of Khurda and successfully completed the same. The Collector-cum-Chairperson (MDM, Khurda)-opposite party no.2 issued a tender call notice on 29.02.2016 inviting sealed tenders from the intending registered transport contractors/agents having valid agent license/common carrier license for engagement of transporting agent under Mid-Day- Meal Programme for transportation of rice from FCI point to School points for the year 2016-17. The tender documents, complete in all respect along with required documents, were to be sent in sealed cover superscribed “sealed tender for undertaking transportation work of food grain (rice) under MDM programme-2016-17” addressed to the District Education Officer, Khurda by registered post/speed post. The last date of receipt of the tender documents was 21.03. 2016 by 1.00 P.M. and date of opening of the tenders was 21.03.2016 at 5.00 P.M. in the office of the Addl. District Magistrate, Bhubaneswar. As per the terms and conditions of the tender notice, clause-10 requires that recent solvency certificate issued by the competent authority for Rs.50,00,000/- only, who applied for the whole district, and Rs.10,00,000/- only, who applied for one block, should be furnished by the tenders along with the tender paper. Clause-11 requires that earnest money deposit of Rs.1,00,000/- only per block (multiple of Rs.1,00,000/-, if applied for more than one block) in shape of bank drafts/postal savings pass book/bank pass book/NSC/term deposit duly pledged in favour of the District Project Management Unit (DPMU), MDM, Khurda should be furnished along with the tender paper. The security deposit has been enhanced from Rs.50,000/- to Rs.5,00,000/-; EM.D. has been enchanced from 26,500/- to Rs.1,00,000/- and solvency cost also has been enhanced from Rs.1,00,000/- to Rs.10,00,000/-. Being aggrieved by such terms and conditions of the tender documents, the petitioner has approached this Court by filing the present application.

2. Ms. Saswati Mohapatra, learned counsel for the petitioner strenuously urged that there was no rationality in the enhancement of EMD, solvency certificate and security deposits and, as such, the enhancement of deposits on different rates pursuant to the tender documents of the year 2016-17 is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. By fixation of such conditions, the opposite parties have tried to eliminate small transporting contractors/agents and encourage the big contractors. If such tender conditions are allowed to exist, that would lead to an unhealthy competition, which is absolutely unreasonable, arbitrary and dehorse the provisions of law. It is further urged that the food stuff are being transported under different schemes, namely, Public Distribution System (PDS), SNP and Mid-Day-Meal (MDM). So far as the conditions for transporting of food stuff under PDS and SNP schemes are concerned, there was no change in the conditions which were prevailing earlier whereas in respect of transporting under MDM scheme, the conditions have been substantially changed without assigning any reasons thereof. Apart from the same, it is further urged that due to non-availability of transport contractors/agents because of change of conditions, it has only been confined to some of the transporters belonging to Bhubaneswar and the rural transporters have practically been excluded, though there was no allegation against them and they had successfully completed their tender work assigned in the previous years. It is stated that the transporters/agents of the Bhubaneswar have been assigned to transport food stuff in res