S. Chandrashekhar, J. - (1.) SEEKING quashing of the decision of the Tender Committee dated 01.10.2015, the present writ petition has been filed.
(2.) THE petitioner No. 1 claiming himself a registered Class -II contractor under the Road Construction Department states that petitioner No. 2 is his friend, who duly pledged his Fixed Deposit Receipts in favour of the Executive Engineer, Rural Works Department, for facilitating submission of Earnest Money Deposit. On 16.09.2015, e -Tender Notice No. 04/15 -16/EE/RWD/Latehar was issued inviting bids for various works including, "Construction of Two Units Teacher Quarter at P.T.G Primary Residential School in Village -Netarhat, Block -Mahuadanr, District -Latehar" and, the Single Bid Documents (SBD) containing terms and conditions and requisite eligibility criteria was published. The cost of Tender was to be deposited through Demand Draft/Bankers' Cheque issued by the State Bank of India in favour of the Executive Engineer, Rural Works Department and, the Earnest Money Deposit (EMD) was to be submitted through various instruments including, Fixed Deposit Receipts (FDR) issued by Scheduled Public Sector Bank duly pledged in favour of the Executive Engineer, Rural Works Department. The petitioner No. 1 in compliance of the aforesaid conditions deposited Demand Draft bearing No. 287179 dated 23.09.2015 and uploaded the Fixed Deposit Receipts of petitioner No. 2 duly pledged in favour of respondent No. 3. On 30.09.2015 when petitioner No. 1 furnished the original copy of the Fixed Deposit Receipts to respondent No. 3, the FDR was returned informing him that it must be in the name of petitioner No. 1. The finance bid opening summary dated 02.10.2015 uploaded by the respondents discloses that one Devanand Prasad has quoted the lowest rate @ 5% below the estimated rate whereas, petitioner No. 1 quoted his rate @ 5.01% below the estimated cost. Alleging arbitrariness, unreasonableness and malice in law in rejecting the technical bid of petitioner No. 1, the present writ petition has been filed. Mr. Sumeet Gadodia, the learned counsel for the petitioners assailing the decision of the respondent -authority rejecting the offer outrightly submits that although the petitioner No. 1 fulfills the conditions of e -Procurement Notice dated 16.09.2015, on an erroneous ground that the Fixed Deposit furnished by the petitioner No. 1 was not in his name, rejected the bid. Referring to Clause 5 of e -Procurement Notice dated 16.09.2015, it is contended that the Fixed Deposit furnished by the petitioner No. 1 as Earnest Money Deposit was in the prescribed proforma. The prescribed proforma only indicates that the Fixed Deposit should be pledged in favour of the Executive Engineer, Rural Works Department, Works Division, Latehar. It is further submitted that the object behind insistence upon submission of Earnest Money Deposit through the demand draft/banker's cheque or National Saving Certificate and/or Fixed Deposit which would be adjusted towards Security Deposit, is to recover damage/penalty in terms of the conditions of the contract in the event of failure of the contractor to execute the contract.
(3.) BEFORE adverting to the contentions raised on behalf of the petitioners, relevant provisions under the Tender Document need to be noticed. "5. Cost of tender/bidding document in the shape of demand draft/banker's cheque issued by State Bank of India within Jharkhand in favour of Executive Engineer, Rural Works Department, Works Division, Latehar payable at Latehar and earnest money in the shape of Bank Guarantee in prescribed Performa as per Annexure -1 from any Scheduled Public Sector Bank within the State of Jharkhand and valid for 180 days from the date of opening of tender of Fixed Deposit of a Scheduled Public Sector Bank issued within the State of Jharkhand or current issues of National Saving Certificate duly pledged from any Post Office within the State of Jharkhand, in favour of Executive Engineer, Rural Works Department, Works Division, Latehar. Cost of tender/bidding document, Earnest Money Deposit, affidavit regarding correctness of Bid (Annexure -2) and a set of hard copy of scanned & uploaded technical qualification documents only shall be deposited in Executive Engineer, Rural Works Department, Works Division, Latehar on 29 -09 -2015 from 10.00 A.M to 3.30 P.M. If this date is declared as holiday these papers will be submitted on the next working day." "5.1 Duly pledged Earnest Money, if any, lying with the concerned Executive Engineer against work already completed shall not be adjusted by transfer. In such case the tenderer is required to get the same refunded released and then attach the same with the tender, duly pledged afresh for the work for which tender is filled." "5.2 Tender not accompanied with required Earnest Money in the prescribed manner shall be rejected outright and will not be evaluated." "13. In the case of successful tenderer (hereinafter called contractor) the amount of E.M. will be transferred towards Initial Security Deposit in such a manner so that the security deposit will form part of 5% of the approved amount of the approved tender & the remaining 5% shall be recoverable from the subsequent bills of the contractor." "22. Conditional tender shall not be valid/accepted.";