The court emphasized the importance of the respondents providing a clear basis for their claims and considering the petitioner's submissions in compliance with the previous court direction.

JUDGMENT :

Sri Vipin Sanghi, J.

The petitioner has preferred these two writ petitions in similar circumstances.

2. The petitioner participated in the tendering process in relation to two works, namely UDRP/PWD/07/RD/118 and UDRP/PWD/07/RD/119. Writ Petition (M/S) No. 3063 of 2018 relates to the first of these works, whereas Writ Petition (M/S) No. 3067 relates to the second work aforesaid.

3. For the purpose of ease, we are treating Writ Petition (M/S) No.3067 of 2018 as the lead matter, and taking note of the facts and circumstances in relation to the said case. The facts of the other case are also similar.

4. The estimated cost of the work in relation to the Package No. UDRP/PWD/07/RD/119 was Rs.1528.53 lacs. The bid submitted by the petitioner in response to the said Package was of Rs. 15,24,91,267.15. Thus, the bid of the petitioner was only about four lacs less than the estimated cost. The respondents issued the Letter of Acceptance on 23.09.2017, wherein the respondents, inter alia, required the petitioner to submit an Additional Security Performance Security to the tune of Rs.2,88,69,664.72 “for unbalanced bids in terms of ITB Clause 40”. The Communication, however, did not state as to how the petitioner’s bid was claimed to be “unbalanced”. It merely stated that the total Contract Price “excluding of GST and inclusive of levies and other duties is .12,92,29,887.40”, and that the “Total amount of GST payable at the time of deadline bid submission @ 18% is .2,32,61,379.73”.

5. Since the petitioner did not agree to furnish the Additional Performance Security-claiming that the same was contrary to the terms of the Contract, the respondents sought to forfeit the bid security of the petitioner.

6. The petitioner earlier preferred Writ Petition (M/S) No. 2798 of 2017. The case of the petitioner was that the respondents had not given any basis to claim that there was any justification to require the petitioner to furnish additional performance security under Clause 40.1 of the ITB. The said Clause reads as under:-

“40.1 If the bid, which results in the lowest Evaluated Bid Price, is seriously unbalanced, front loaded or substantially below updated estimates in the opinion of the Employer, the Employer may require the Bidder to produce detailed price analyses (with breakdown of unit rates) for any or all items of the Bill of Quantities, to demonstrate the internal consistency and justification of those prices with the construction methods and schedule proposed. After evaluation of the price analyses, taking into consideration the schedule of estimated contract payments, the Employer may require that the amount of the performance security be increased at the expense of the Bidder to a level sufficient to protect the Employer against financial loss in the event of default of the successful Bidder under the Contract.”

7. The said writ petition was disposed of by the learned Single Judge with a direction to the respondents to consider the case of the petitioner in terms of Clause 40.1 of the Instructions to Bidders (ITB). The petitioner was required to give its explanation within a week, and the respondent-Employer was required to pass an order in accordance with law. The order further stated that “If the employer comes to the conclusion that the bid price of the petitioner is extremely low and work cannot be done, the employer would always be at liberty either to ask for the additional performance guarantee, or to cancel the bid and go for fresh bid, after explaining the changed circumstances in terms of public money”.

8. The respondents have now passed the impugned order dated 31.08.2018 stating it to be in compliance of the said order, wherein the respondents have stated as follows:-

^^ek0 mPp U;k;ky; uSuhrky }kjk ikfjr vkns'k ds dze esa vk[;k fcUnqokj fuEukuqlkj gS& fufonknkrk M/s Unicon Builders & Contractor }kjk vius i=kad UBC/PB/2018/551 fnukad 02-07-2018 }kjk bl dk;kZy; dks fnukad 02-07-2018 esa ek0 mPp U;k;ky; }kjk nh x;h ,d lI