ARATI INFRATECH PVT. LTD. Vs. STATE OF ODISHA

JUDGEMENT

(1.) The Chief Engineer and Basin Manager, R.V.N. Basin, Berhampur-opposite party No. 2 issued notice inviting tender through e-procurement for execution of the work "Construction of Right Head Regulator at RD 998 M of Dam Axis for Right Main Canal of Ret Irrigation Project" vide Bid Identification No. CE and BM, RVN Basin (RID) AFR 06/2008-09. As per Detailed Tender Call Notice (DTCN), the tender documents were to be downloaded from the Government website from 10.00 AM on 28.01.2009 to 17.00 hours of 16.02.2009 on payment of Rs. 10,000+ 4% VAT, i.e., Rs. 10,400.00 only for each set. It was also indicated that papers would be received through Government website only from 10.00 AM on 02.02.2009 to 17.00 hours of 16.02.2009. The tender was to be submitted in two covers, cover-1 was to contain Earnest Money Deposit (EMD), signed DTCN, copy of registration certificate, PAN card, valid VAT clearance certificate, certificates duly filled-in and documents required as per the relevant clauses of the DTCN and special conditions, if any. The cover was to be sealed and super-scribed as Cover-I (Technical Bid) for the work duly filled in and signed by the tenderer and was to be super-scribed as Cover-II (Price Bid) for the work.

(2.) In consonance with the conditions stipulated in DTCN, the petitioner submitted its Cover-I (Technical Bid) and Cover-II (price bid) along with others. As per the condition, the work was to be completed in all respect within 18 calendar months from the date of issue of work order. All tenders received were to remain valid for 3 months from the date of their receipt and validity of tenders could also be extended, if agreed to by the tenderers and the Department. The tenderer, whose tender was accepted, must submit a programme of work immediately after issue of work order for approval of Engineer-in-charge. The date of commencement of work was to be, as notified in the work order. The bids for the works would remain open for acceptance for a period of 90 days from the last date of receipt of bids. If any bidder/tenderer withdrew its bid/tender before the said period or made any modification in the terms and condition of the bid, the EMD would be forfeited if the tenderer backed out from offer before acceptance of tender by the competent authority as concurred in by Law Department and Finance Department in their UOR No. 848/L 31.05.1997 and UOR No. 202/WFD Dated 06.03.1998 respectively and also the EMD would be forfeited, if the tenderer failed to sign the agreement after acceptance and not willing to deposit the required ISD and additional performance security for the unbalance tender items.

(3.) The petitioner being found the lowest bidder, was intimated vide letter dated 16.05.2009 indicating the validity of tender would expire on 17.05.2009 (within 90 days since last date of receipt of bids) and accordingly request was made for giving willingness for a further period of 90 days re-validity of tender on or before 25.05.2009. In response to same, the petitioner intimated on 25.05.2009 that since the validity period of 90 days for the work in question was over, the EMD deposited by the petitioner be refunded/released to its authorized signatory whose signature was attested. After expiry of validity period of 90 days, the petitioner was communicated vide letter dated 27.05.2009 that its tender had been accepted by opposite party No. 2 for an amount of Rs. 3,08,03,787/- being the lowest one and it had been called upon to deposit ISD amounting to Rs. 2,81,076/-. The petitioner, on 31.05.2009, communicated to opposite party No. 4 stating that 90 days validity period having been passed on 17.05.2009, the petitioner was not willing to extend the validity of the tender for any further period.