The court recognized the legality of reducing the performance guarantee from 5% to 3% in accordance with government orders due to pandemic relief initiatives.

JUDGMENT

The petitioner is an A class contractor, who was entrusted with the work based on Ext.P1 letter of acceptance dated 05.10.2023 for executing the work named “KIIFB-PWD016-31--Construction of Vellayani bridge connecting Poonkulam and Kakkamoola in Thiruvananthapuram District- General civil works”. As part of the tender conditions, the petitioner is supposed to deposit 5% of the contract value as the performance guarantee. According to the petitioner, insisting for performance guarantee @ 5% is not legally sustainable, in view of Exts.P2 to P4 Government Orders, by which, the performance guarantee was reduced to 3% of the contract value. As the respondents were not prepared to accept performance guarantee of 3% of the contract value, the petitioner has approached this Court seeking the following reliefs:

“a) Issue a writ of mandamus any other appropriate writ order or directions directing the second respondent to permit the petitioner to execute the agreement with respect of the work namely KIIFB-PWD016- 31--Construction of Vellayani bridge connecting Poonkulam and Kakkamoola in Thiruvanathapuram District- General civil works with performance guarantee at the rate of 3 % instead of 5%, forthwith;

b) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that in view Exhibit P-2 to P-4 G.Os notice inviting tender, the performance guarantee to be submitted in respect of the work namely KIIFB-PWD016- 31--Construction of Vellayani bridge connecting Poonkulam and Kakkamoola in Thiruvanathapuram District- General civil works is at the rate of 3% as ordered in Exhibits P-2 and P-3 Government orders.

c) Issue a writ of certiorari or any other appropriate writ or order calling for the records leading to the issuance of Exhibit P- 1 and quash the same in so far as it directs the petitioner to furnish 5% of the contractual amount as performance guarantee with respect of the work namely KIIFB-PWD016-31--Construction of Vellayani bridge connecting Poonkulam and Kakkamoola in Thiruvanathapuram District- General civil works ;

d) To dispense with the filing of the translation of vernacular documents produced by the petitioner in this case;

And e) Grant such other reliefs which this Hon’ble Court may deem fit and necessary to grant in the facts and circumstances of the case.”

When the matter came up for consideration on 09.07.2024, an interim order was passed by this Court, wherein, the petitioner was permitted to furnish the performance guarantee to the tune of 3% of the contract value. It is reported that, based on the same, the petitioner had furnished the performance guarantee and agreement was also executed.

2. I have heard the learned Counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel for the 2^nd respondent.

3. As far as the challenge raised by the petitioner is concerned, the same has to be upheld, in the light of the stipulations contained in Exts.P2 to P4 Government Orders. As per the aforesaid Government Orders, taking note of the difficulties, that are faced by the contractors owing to the Covid – 19 pandemic, a relaxation was provided, by reducing the performance guarantee to 3% of the contract value. Initially, the same was introduced as per Ext.P2 Government Order dated 07.01.2021. Later, as per Exts.P3 and P4, the period of the same was extended up to 31.03.2024. In this case tender notification was issued on 21.10.2023 and hence it is well within the period of relaxation contemplated under Ext.P4. Therefore, the petitioner is eligible to the said benefit.

In such circumstances, this writ petition is disposed of making the interim order passed by this Court on 09.07.2024 absolute, by declaring that the obligation of the petitioner to furnish performance guarantee is for an amount equal to 3% of the co