The deletion of clauses in tender documents invalidates non-compliance claims, and the interpretation of 'like' supports flexible compliance with bid security requirements.

JUDGMENT

Indrajit Mahanty; CJ. - Heard learned counsel for the respective parties.

1. This writ petition has come to be filed by the petitioner namely, SLT Infracon Pvt. Ltd. seeking to challenge the decision taken by the tender committee under Annexure-6 at page 49 whereby the bid made by the petitioner to the respondents was held to be non-responsive for the following reason:

'Technically non-responsive due to submission of bid security in the form of FD instead of BG. This does not fulfil the Clause No.2.20.1 of DNIT (RFP)'

2. Learned counsel for the petitioner drew the attention of the Court to a corrigendum issued by the tenderer dated 15th March 2022 (at Annexure-3) whereby, various modifications were made to the original bid clauses and in particular drew our attention to serial No.7 of the said corrigendum relating to RFP: Clause 2.20.1, which reads as follows:

'RFP: Clause 2.20.1: The Bidder shall furnish as part of its BID, a BID Security referred to in Clause 1.2.4 herein above in the form of a bank guarantee issued by nationalised bank, or a Scheduled Bank in India having a net worth of at least Rs.1,000 crore (Rs. One thousand crore), in favour of the Authority in the format at Appendix-II (the 'Bank Guarantee') and having a validity period of not less than 180 (one hundred eighty) days from the BID Due Date, inclusive of a claim period of 60 (sixty) days, and may be extended as may be mutually agreed between the Authority and the Bidder from time to time. This Bank Guarantee shall be transmitted through SFMS Gateway to [Ministry/NHAI/NHIDCL/State PWD/BRO]'s Bank. In case the Bank Guarantee is issued by a foreign bank outside India, confirmation of the same by any nationalized bank in India is required. For the avoidance of doubt, Scheduled Bank shall mean a bank as defined under Section 2 (e) of the Reserve Bank of India Act, 1934. A scanned copy of the Bank Guarantee shall be uploaded on e-procurement portal while applying to the tender.'

3. In terms of the aforesaid corrigendum, the above quoted clause was deleted.

4. Therefore, learned counsel for the petitioner submitted that at the outset, the bid made by the petitioner company was held to be non-responsive inter alia for non-compliance of a clause which stood deleted by the corrigendum dated 15th March, 2022.

5. Apart from the aforesaid contention, learned counsel appearing for the petitioner drew our attention to the corrigendum dated 15th March, 2022 and in particular to serial No.4 of the said amendment at page 40 relating to RFP: Clause No.1.2.4, which is quoted hereunder:

'RFP: Clause No.1.2.4 A Bidder is required to submit, along with its BID, a BID Security of Rs. 1.610 Cr. (Rupees one point six one zero Cr.)

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5 (the 'BID Security'), refundable not later than 210 (One hundred & fifty) days from the BID Due Date, except in the case of the Selected Bidder whose BID Security shall be retained till it has provided a Performance Security and Additional Performance Security (if any) as per the provision of this RFP and LOA. This Guarantee shall be transmitted through SFMS Gateway to State PWD. The Bidders shall also submit Demand Draft for Rs.10,000 (Ten thousand only) ** issued from a scheduled Bank in India in favour of 'Executive Engineer, NH Division kumarghat, Kumarghat, Unakoti Tripura' payable at Kumarghat.'

6. And the modification made by the corrigendum in serial No.4 is on the right-hand column, wh