The main legal point established in the judgment is that the requirement of Additional Performance Security at the pre-bid stage was arbitrary, unreasonable, and detrimental to public interest, violating constitutional rights and fair competition.

JUDGMENT :

VINEET SARAN, J.

1. This is a batch of writ petitions filed by some contractors challenging the condition, whereby, in response to tender call notice, they are required to furnish Additional Performance Security (APS) at the stage of submission of their bids in the form of bank draft or other specified modes as a pre-condition to their participation in the tender process, if their bids are for amounts below the estimated cost as provided in the notice inviting tender.

2. W.P.(C) No.7120 of 2017 is being treated as the leading petition, in which counter and rejoinder affidavits have been exchanged. The counter affidavit filed in this writ petition has been adopted by the State Government in all other connected writ petitions, and copies of the same have been served on the respective learned counsel for the petitioners in other connected writ petitions. Rejoinder affidavit in the leading writ petition has been filed. Some other writ petitioners have also filed their rejoinder affidavits. As such, pleadings between the parties (to the extent as desired by the respective petitioners) have been exchanged and with the consent of learned counsel for the parties, these writ petitions are being disposed of at the admission stage.

3. The brief facts of the leading writ petition are that on 30.03.2017, a tender call notice (e-procurement notice) was issued by the Water Resources Department of Government of Odisha inviting tenders for canal and road works. The tenders were invited for total 13 items. The cost of the tender paper for each item was Rs.10,500/-. The estimated cost of the work for each item, as well as the EMD/security amounting to 1% of the estimated cost, was also specified. Besides other conditions, condition no.6 required that a bidder was to provide Additional Performance Security at the time of submitting its bid. The relevant clause 6 is reproduced below:

“Additional performance security shall be obtained from the bidder, when the bid amount is less than the estimated cost put to tender. In such an event, the bidder who have quoted less bid price than the estimated cost put to tender shall have to furnish the exact amount of differential cost i.e. estimated cost put to tender minus the quoted amount as additional performance security in shape of Demand Draft/Term Deposit Receipt pledged in favour of the Executive Engineer, Lower Indra Canal Division, Khariar from work serial no.01 to 09 and office of the Executive Engineer, Lower Indra Dam Division, Damsite, Tikhali from work serial no.10 to 13 in the sealed envelope along with the price bid at the time of submission of bids. The bids of the technically qualified bidders will be opened for evaluation of the price bid in case of the bidders quoted less bid price/rate than the estimated cost put to tender and have not furnished the exact amount of differential cost (i.e. estimated cost put to tender minus the quoted amount) as Additional Performance Security in shape of Demand Draft/Term Deposit Receipt, their price bid will not be taken into consideration for evaluation even if they have qualified in the technical bid evaluation.” (emphasis supplied)

4. The petitioner in this writ petition, being the ‘B’ Class licensed contractor duly registered under the Registration Rules, 1967, claims to be qualified to participate in the tender for each of the 13 works, but is aggrieved by the pre-condition imposed by Clause 6 of the tender call notice requiring him to provide APS for each of the items at the time of submission of the bid, which was in terms of the Office Memorandum dated 04.05.2016 issued by the Works Department of the Government of Odisha. The petitioner has thus prayed for quashing of the tender call notice dated 30.03.2017, as well as the Office Memorandum dated 04.05.2016. Besides this, the petitioner has also prayed for quashing of an earlier Office Memorandum dated 08.11.2013. In the leading writ petition bearing W.P.(C) No.7120 of 2017 as well as in cer