The main legal point established is that the forfeiture of EMD was justified due to the petitioner's unjustified bid withdrawal, but the tender debarment was unjustified due to the lack of formal acceptance and completion of necessary procedures.

ORDER VIVEK RUSIA, J. : – This petition is filed under Article 226 of the Constitution of India being aggrieved by the order dated 21-9-2021 passed by respondent No. 2, whereby the petitioner has been debarred from participating in the tender relating to Item Code No. 110192 Enoxaparin Injection 40 mg for the period of two years with the forfeiture of earnest money deposited by the petitioner.

2. The facts of the case :

2.1. The petitioner is a company duly registered under the provisions of the Companies Act, 1956 (New Act, 2013) having its registered office in Navi Mumbai. The petitioner is a Bio Pharmaceuticals Company engaged in the production and the sale of products namely Anti Sera, anti-Rabies Immunoglobulin and Sera, Reproductive Hormones etc.

2.2. Respondent No. 2 is a Government Company registered under the provisions of the Companies Act, 1956 with the object to act as a Centralized Procurement Agency for the purchase and supply of all essential medical equipment and drugs for all Public Health Care Institutions within the State of Madhya Pradesh.

2.3. During the second phase of COVID-19 Pandemic, respondent No. 2 issued a Notice Inviting Tender (NIT) on 29-4-2021 in respect of the rate contract and supply of pharmaceuticals viz. Enoxparin Injection 40 mg and Doxycycline Capsules to various hospitals in the State of Madhya Pradesh for a period of three months.

2.4. In pursuant to the said NIT, the petitioner submitted its bid for the supply of Enoxaparin (40 mg equivalent to 4000 IU Vial/PFS). Other manufacturers (i) Bharat Parenterals Limited submitted its bid for the supply of Enoxaparin (40 mg equivalent to 4000 IU Vial/PFS) and Doxycycline (100 mg) Capsule and (ii) Zenith Drugs Private Limited submitted its bid for the supply of Doxycycline (100 mg) Capsule. As per the schedule in the NIT, the technical bids were opened on 12-5-2021 at 16:00 hours. All three participant bidders were declared qualified.

2.5 Respondent No. 2 sent notices to all successful bidders informing them about the date and time of financial opening on 13-5-2021 after 18:30 hours. Vide email dated 13-5-2021 sent at 7:55, the petitioner requested respondent No. 2 not to open the financial bid due to increase in the rates of raw material, they would be unable to serve quoted Item Code No. 110192 Enoxaparin Injection 40 mg. Respondent No. 2 vide email dated 15-5-2021, replied that the financial bids had already been opened at 6:43 pm on 15-5-2021 for all the responsive items i.e. before receipt of your mail at 7:55 pm, hence, the request cannot be considered. However, after the above communication, no steps were taken either by the petitioner or by respondent No. 2.

2.6. Respondent No. 2 issued a show-cause notice dated 23-6-2021 to the petitioner that due to non-supply of quoted materials, the medicines could not be provided in an emergency situation during COVID – 19 Pandemic to the needy persons, therefore, by way of penal action why the EMD be not forfeited and for the particular items why the Company be not debarred for a period of two years.

2.7. The petitioner submitted a reply to the aforesaid show cause notice on 29-6-2022 contending that when our request for non-opening of the financial bid has been refused, we were bound to follow the instruction and never represented again. Respondent No. 2 must have entered into a contract as per the terms and conditions of the tender. The reply of the petitioner was found unsatisfactory and vide impugned order dated 21-9-2021, respondent No. 2 has forfeited the EMD and debarred the petitioner for a period of two years relating to the supply of drug item namely Enoxaparin Injection 40 mg.

Submissions of petitioner’s counsel 3. Learned counsel for the petitioner submits that the present writ petition is filed inter alia on the ground that Annexure-IX of the bid document requires the procedure to be followed before blacklisting the successful bidder. Since the petitioner has never been declared a su