Submission of Earnest Money Deposit (EMD) through bank guarantee was non-compliant with the mandatory electronic modes prescribed in the Detailed Tender Call Notice, and subsequent modifications to tender conditions post-bid submission are impermissible.

JUDGMENT :

HARISH TANDON, C.J.

Pursuant to a Detailed Tender Call Notice (DTCN) made and published on 10th April, 2025 for construction of a work relating to “Improvement such as Widening and Strengthening of Bhojpur-Jamankira road from 0/000 km to 13/695 km in the district of Sambalpur under the State Plan”, the petitioner offered his bid – online and furnished the bank guarantee for Earnest Money Deposit (EMD).

2. The authority opened the bid at the technical stage and found that the petitioner has not complied with the terms and conditions of the said DTCN, hence, such bid was rejected. The reason assigned can be reasonably discern from the communication made to the petitioner that an exemption was sought for in depositing the EMD through Swift Transaction (ST) or directly into the bank account of the authority and such EMD was furnished through bank guarantee which is not strictly in the terms and conditions embodied in the said DTCN.

3. The petitioner has challenged the said decision rendering it disqualified on the premise that Clause 34 (ii) of the “DTCN for road and bridge work” postulates the submission of EMD through bank Guarantee which cannot be said to be, not in conformity with the terms and conditions of the said tender document. It is further submitted that the screenshot of the e-procurement application would further corroborate such stand where a Clause is put whether the EMD is deposited through Bank Guarantee (BG)/Swift Transfer (ST) or the other mode. Thus, the petitioner contends that the decision rejecting his bid being not in conformity with the terms and conditions of the DTCN is unsustainable and liable to be quashed and set aside.

4. However, the State took a stand that the old age practice of procurement of a competitive rate in the public contract by dropping the bid document into a box kept on the conspicuous part of the office of the concerned department, has seen a radical change because of the advancement of technology and all the tenders are floated online to be submitted in such form which mandates the transfer of the amount in the form of an EMD through a Swift Transfer (ST)/electronic transfer mode, and therefore, such clause is indispensable. It is further submitted that the various clauses of the DTCN would evince that the transfer of amount on account of an EMD through electronic mode is mandatory and the clause which the petitioner intend to rely upon is not applicable at the stage of evaluating the validity of the offer or the tender being in strict compliance of the terms and conditions embodied therein. In other words, it is sought to be contended that Clause 34 of the DTCN for road and bridge work has to be interpreted in the context in which it is so used without overriding the other clauses of the DTCN which are mandatory and imperative in nature.

5. However, at this stage, the petitioner relies upon a subsequent corrigendum No.32139 dated 16^th August, 2025 issued by the office of the Engineer-in- Chief (Civil-cum-Roads), Odisha wherein the said Clause 34 (ii) of the DTCN was modified to the extent of deleting the portion existed at the time of floating the tender which permitted the EMD to be submitted in the form of a bank guarantee.

5.1. According to the learned counsel for the petitioner, the moment a conscious decision is taken by the authorities in deleting such portion, it leads to an inescapable inference that such clause was applicable even at the stage of submission of a bid b