M/S. CHOUDHARY CONSTRUCTION Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In the bunch of these writ petitions, a challenge has been made to a gazette notification dtd. 22/10/2021, whereby Rule 75-A has been inserted in the Rajasthan Transparency in Public Procurement Rules, 2013 (hereinafter referred to as the 'Rules of 2013').

(2.) Rule 75-A of the Rules of 2013 is reproduced as under: 75A.Additional Performance Security. - (1) In addition to Performance Security as specified in rule 75, an Additional Performance Security shall also be taken from the successful bidder in case of unbalanced bid. The Additional Performance Security shall be equal to fifty percent of Unbalanced Bid Amount. The Additional Performance Security shall be deposited in lump sum by the successful bidder before execution of Agreement. The Additional Performance Security shall be deposited through e-Grass, Demand Daft, Banker's Cheque, Government Securities 9 [Bank guarantee or electronic bank guarantee (e-BG)].

(3.) Learned counsel for the petitioners submitted that Rule 75-A, which has been inserted, is an arbitrary rule, as already under the Rules of 2013, various measures are available to protect the interest of the procuring entity. The petitioners argued that Sec. 7 and Sec. 46 of the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter referred to as the 'Act of 2012') and Rule 38, Rule 65, Rule 68, Rule 69 and 70 of the Rules of 2013 already provides safeguards to protect the interest of the procuring entity and now the introduction of the concept of 'Additional Performance Security' through Rule 75-A in the Rules of 2013 is not only arbitrary and unsustainable in the eyes of law but also renders the Rule to be ultra vires.