Forfeiture of earnest money is justified due to bidder's misrepresentation and breach of tender conditions.

1. Heard learned counsel for the parties.

2. Both the appeals have been tagged together and are being heard analogously as they involve the same issue and arise out of the judgments of learned single Judge passed on the same date 22nd April, 2014 in two writ - petitions W.P.(C) No.6213/2011 and W.P.(C) No.6255/2011 of the same writ - petitioner. The dates of tender notices were also same. Facts of both the writ petitions are common, but for convenience sake, relevant material facts as borne from the writ petition W.P.(C) No.6213/2011 are being noticed hereunder.

3. The legal issue posed for answer in both the appeals is whether the action of the employer / respondent - Steel Authority of India Limited / appellants herein in forfeiting the earnest money of the petitioner was proper in the eyes of law or not. Learned Single Judge was of the view that since the petitioner withdrew his bid offer after expiry of 90 days i.e. the validity period tender as per Clause - 5 of the tender notice, as the respondents were at fault in not issuing the work order within the stipulated period, there was no question of application of penalty clause for forfeiting the petitioner's earnest money. The bare facts required to be noticed for determination of this issue are as under:

3. Petitioner in the respective writ petitions participated under two tender notices both dated 26th November, 2010; one for production and dispatch of dolomite and the other for limestone. On the scheduled date of opening of the tender there was only one offer. The date of opening of tender was extended with the approval of the competent authority and within the extended time two additional offers were received. Since three tenders were received and still they were less than the required number of tenders as per PCP - 2009, the opening date of tender was again extended up to 5th February, 2011 with the approval of the competent authority. On request of the existing contractors, date of opening of tender was again extended up to 18th February, 2011 with the approval of the competent authority when five more offers were received which increased the number of offers to eight. Evaluation of these eight offers were done by the tender committee. Only seven of them qualified techno - commercially.

4. When the price bid was opened, the writ petitioner company emerged as L - l tenderer. His rate was 14.93% higher than the departmental estimate which was beyond the permissible range of deviation (+) 2.5% on higher side for such type of jobs. The respondent - SAIL received a letter in between from an M.L.A. of Bhawanathpur on 24th April, 2011 alleging that the writ petitioner company did not execute any job and had submitted fake documents. The tender committee in its meeting held on 30th April, 2011 and 3rd May, 2011 deliberated on the issue and examined the documents submitted by the writ petitioner and decided that before processing of the tender, some of the documents submitted by him related to income tax return and TDS may be verified. Letters were written to the Income Tax Officers of Ranchi, Daltonganj and Bengaluru for verification / authentication. The DGM (M) BNP - TDR Mines submitted one report in which he also expressed doubt about the work experience of the respondent. Tender Committee decided to check and verify from the website of Income Tax Department. Its TAN number indicated in the TDS certificate in the financial year 2009-10 issued by M/s. Maa Vaishnav Enterprises, Dola Chopan, Sonebhadra (U.P.) was one such document submitted by the writ petitioner. On downloading the data the following anomalies were indicated in the TDS certificate: -

(a) Name of the T