Reliable Facility Services ... vs Government Of West Bengal And ...
2023 Latest Caselaw 2539 Cal/2

                       In the High Court at Calcutta
                      Constitutional Writ Jurisdiction
                               Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            WPO No. 1434 of 2023

        Reliable Facility Services Private Limited and Another
                                   Vs.
                Government of West Bengal and Others

     For the petitioners               :        Mr. Suddhasatva Banerjee, Adv.
                                                Mr. Pushan Kar, Adv.,
                                                Mr. Sagnik Majumdar, Adv.,
                                                Mr. Abhidipto Tarafdar, Adv.

     For the State                     :        Mr. Sirsanya Bandopadhyay, Adv,
                                                Mr. Arka Kr. Nag, Adv.

     Hearing concluded on              :        21.08.2023

     Judgment on                       :        06.09.2023



     Sabyasachi Bhattacharyya, J:-

1.   The petitioner-Company is engaged in the business of providing

     housekeeping and maintenance services. It participated in a tender

     dated March 3, 2023 floated by the respondent-Authorities and

emerged as the L-1 bidder. The respondents sought a justification of

the prices submitted by the petitioners in terms of the Clause 8.9.5 of

the tender document on the ground that the petitioners‟ bid was much

less than the quoted price of the bid items.

2. The petitioners provided justification by citing efficient operation and

bulk purchase of material, resulting in significant discounts enjoyed

by the petitioners. However, such justification was rejected by the

respondents and the petitioners were required to perform a

demonstration of the proposed work at the premises of Khadyashree

Bhawan. Although it is argued that such demonstration was not part

of the conditions of the tender, the petitioner participated to secure

and perform the contract.

3. It is argued by the petitioners that subsequently the respondents

imposed additional obligations in the form of new conditions, which

were foreign to the tender, including use of a particular brand of glass

cleaning material, enhanced rate of security deposit and additional

security deposit, if the Letter of Acceptance was to be awarded to the

petitioners. Such conditions were communicated to the petitioners

vide letter dated April 25, 2023, which also mentioned that the

petitioners‟ failure to perform the said conditions would lead to

forfeiture of the earnest money deposit and/or cancellation of the

petitioners‟ bid.

4. It is argued that the said conditions were arbitrary and imposed

subsequent to the bidding process.

5. The petitioners‟ wrote an advocate‟s letter dated April 28, 2023

expressing such grievances. The respondent invited the petitioners to

a meeting by dint of a letter dated May 16, 2023, which was to be held

on May 24, 2023 for settling disputes.

6. However, subsequently, by a letter dated May 30, 2023, the

respondents cancelled the entire tender process and forfeited the

earnest money deposited by the petitioners, in the process debarring

the petitioners from participating in future bids for a period of five

years.

7. It is argued that the bid prices of the four participants in the tender

were similar and there was hardly any difference in the quoted prices

between the petitioners and the L-2 bidder.

8. The present writ petition, thus, has been preferred challenging the

order of blacklisting dated June 30, 2023 and seeking refund of the

earnest money deposited by the petitioners.

9. Learned counsel for the petitioner argues that the blacklisting of the

petitioner no.1 was done for five years without a prior show-cause

notice or opportunity of hearing being given to the petitioners. An

order of blacklisting has severe civil consequences and such action on

the part of the respondents amounts to violation of principles of

natural justice.

10. In support of such contention, learned counsel for the petitioners cites

UMC Technologies Private Limited Vs. Food Corporation of India and

others, reported at (2021) 2 SCC 551, as well as an unreported

judgment dated June 26, 2023 passed in WPO No.1317 of 2023 [HI

Speed Logistic Pvt. Ltd. and Another Vs. Food Corporation of India and

others] and the judgment dated June 13, 2023 in WPO No.742 of 2023

[Pranab Bose Vs. Union of India and Others].

11. Learned counsel next argues that no loss or damage was suffered by

the respondents in the tender process and as a result, the earnest

money could not be forfeited. No party can stand to gain from a

situation when no work order has been placed and no loss has been

suffered. It is argued that in the absence of proof of actual loss, the

respondents acted illegally in insisting upon forfeiture of the earnest

money.

12. In such context, learned counsel cites Kailash Nath Associates Vs.

Delhi Development Authority and Another, reported at (2015) 4 SCC

136.

13. The petitioners next argue that a State or a statutory body is expected

to act reasonably and rationally and cannot be permitted to enrich

itself in an unjust manner. In support of such contention, learned

counsel cites MBL Infrastructure Limited Vs. Rites Limited and Others,

reported at 2020 SCC OnLine Cal 478.

14. Learned counsel next contends that even in a case where the party if

aware of the consequences of blacklisting, which is to take place if

certain conditions prescribed are not met, the blacklisting authority

must issue a show-cause notice, provide a hearing, and observe the

principles of natural justice. The show-cause notice must mention

blacklisting as one of the consequences, which was entirely absent in

the present case.

15. In support of such proposition, learned counsel cites Gorkha Security

Services Vs. Government (NCT of Delhi) and Others, reported at (2014)

9 SCC 105.

16. It is further argued by learned counsel for the petitioners that the

existence of an arbitration clause is not an absolute bar to maintain

an application under Article 226 of the Constitution of India. For

such proposition, learned counsel cites Prabir Kumar Bidya Vs. The

Union of India and Others [WPA No.10713 of 2018].

17. Lastly, it is contended that the clause of the contract referred to in the

impugned decision does not authorise forfeiture of earnest money

deposit. The clauses authorising forfeiture coupled with power of

blacklisting had not admittedly been invoked and are also completely

inapplicable to the facts of the case as the bid of the petitioners has

not been cancelled but the petitioners have withdrawn their bid. Only

if the bid is cancelled, the same "may" draw the consequences of

forfeiture and blacklisting. Learned counsel, in the context of

interpretation of the word "may", cites Bhikhubhai Vithlabhai Patel and

Others Vs. State of Gujarat and Another, reported at (2008) 4 SCC 144.

18. Learned counsel also places reliance on certain relevant clauses of the

tender document.

19. Learned counsel appearing for the respondent nos.1 to 4 submits that

in view of the existence of an arbitration clause (Clause 10.1.1) in the

Notice Inviting Tender (NIT), which covers any dispute between the

parties, the petitioners had an alternative efficacious remedy in the

form of arbitration. Hence, the present writ petition ought not to be

entertained.

20. It is argued that vide a letter April 10, 2023, the Deputy Secretary,

Government of West Bengal sought justification from the petitioners

for the violation of Clause 8.9.5 specified in the tender document, as

the petitioners, in every item of the bid, quoted much less price. It is

argued that the power to call for an explanation is contained in Clause

8.9.5.

21. The petitioners insinuate that the representative of the L-2 bidder was

present on the date that is April 19, 2023, before the tender committee

when the petitioners attended that meeting. It is clarified by the

respondents that so far as the L-1 bidder is concerned, they have

quoted a rate which is more than 20% less than the expected price,

whereas the L-2 bidder also quoted a price less than 20% in some of

the items apart from four. That is the reason why the L-2 bidder was

also called along with the L-1 bidder for providing justification to their

quotations.

22. The petitioners have argued on the forfeiture of EMD without any

proper reason, but the respondents contend that Clause 6.5.1of the

NIT specifies that EMD can be forfeited in the following circumstances:

      i)     Withdrawal of bid;

      ii)    False or faulty documentation,

iii) Any unilateral revision made by the bidder during the valid

period of offer.

23. Clause 8.9.5 also says that the tenderer has a right to forfeit the EMD

amount if the contractor quotes a price below 80% of the estimated

price of the items other than the manpower price, which was

applicable in the present case.

24. Even assuming that a wrong provision or clause was quoted in the

impugned order dated June 30, 2023, such error is inconsequential.If

the authority has the power, quoting a wrong clause would not nullify

the findings.

25. With regard to the requirement of notice, learned counsel for the

respondent nos.1 to 4 argues that the petitioners were already aware

of the consequence and had replied through their advocate‟s letter

annexed at page 94, paragraph (e) of the writ petition. Hence, the

action taken by the respondents was not a surprise for the petitioners.

The purpose of notice of prior hearing is that no action for which civil

consequences follow is be intended to be a surprise. In the present

case, there was no surprise element at all.

26. Learned counsel for the respondent nos. 1 to 4 next argues that the

mere participation and offering of bid price less than 80% do not

accrue any vested right in favour of the petitioners, even if they were

an L-1 bidder. Learned counsel submits that the facts of MBL

Infrastructure Limited (supra) were different and hence not applicable

to the present case.

27. Insofar as Gorkha Security Service (supra) is concerned, paragraph 25

thereof states the clause considered by the Supreme Court, which is

significantly different from the present case. In the present case, the

phrase "if so warranted" is absent, which phrase, in the said case,

compelled the Supreme Court to come to the finding in paragraphs 26

and 27 of the judgment.

28. Shanti Sports Club (supra) is distinguishable on facts as well. Kailash

Nath Associates (supra), interpreted with MBL Infrastructure Limited

(supra), cannot be applicable at all when the bid is cancelled and after

participation in the tender process. The petitioners cannot now say

that the clause specified for forfeiture of the EMD in the NIT is

outrageous and against the law, it is argued.

29. Heard learned counsel for the parties.

30. A perusal of the tender document reveals that Clause 10.1 contains

an arbitration clause. However, the nature of the allegations in the

present writ petition is gross violation of principles of natural justice

and patent arbitrariness. Thus, if the said allegations are established,

the present case would fall within the window stipulated by the

Supreme Court time and again for interference under Article 226 of

the Constitution of India, which principle has also been reiterated in

Prabir Kumar Bidya (supra), cited by the petitioners. Hence, the

objection as to availability of arbitration as an alternative recourse is

turned down and the writ petition is entertained.

31. In order to examine on merits whether the petitioners are entitled to

the reliefs sought, the relevant clauses of the tender document are of

utmost importance.

32. With regard to forfeiture of earnest money, two clauses are of

importance. The first Clause, referred to by both sides, is Clause

8.9.5 of the tender document. As per the said provision, if the

contractor quotes price below 80% of the estimated price of the items

other than manpower, the contractor/agency will have to submit

justification mathematically along with authenticated documents to

support the low bid price along with supportive documents, otherwise

the authorities reserve the right that the bid may be cancelled and it

may draw the forfeiture of the EMD amount along with other

conditions to bar the said low bidder to take part in the future tender

process of the Food and Supplies Department.

33. The other provision is Clause 6.5.1 which provides that the Food and

Supplies Department reserves the right to forfeit the earnest money

deposit (EMD) of any bidder in certain circumstances. The first

ground enumerated there is withdrawal of bid, while bids are under

consideration during the tender period. The bid was withdrawn by the

present petitioner by citing certain reasons. However, it is required to

be ascertained whether such withdrawal was "while bids are under

consideration during the tender period".

34. The next sub-clause relates to false or faulty documentation,

fabricated information and documentation and failure to execute the

work or part thereof, as stated in the terms and conditions. There is

no specific allegation that any of the documentations were faulty. The

information supplied by the petitioners was not alleged to be

fabricated as such, nor could there be any failure to execute the work

or part thereof on the part of the petitioners, since the work was not

awarded to them at all. Unilateral revision made by the bidder, in

terms of the third sub-clause, is also not applicable, as is sub-clause

(iv), which is failure to accept the work order for executing the

document or submit security deposit, which was not be present case,

since no work order was issued at all.

35. Certain facts are to be ascertained from the correspondence annexed

to the writ petition. Upon the petitioner no.1 turning out to be the

successful bidder, the respondent-Authorities communicated in

writing to the petitioners on April 10, 2023 clarifying that the

petitioners had submitted a much „less‟ quoted price of the bid items,

for which a hearing was given to the petitioners.

36. Two days thereafter on April 12, 2023, the petitioner no.1 wrote a

reply thereto to the authorities, where they gave certain explanations

including that the petitioner no.1 was a leading organization providing

such facilities across West Bengal and that the petitioners get bulk

discounts on their purchases and also control the material

misutilization and wastage.

37. In any event, as admitted by the petitioners, the hearing and

demonstration asked from the petitioners was within the authority of

the tender-issuing authorities as per the tender document and cannot

be faulted on such score.

38. Interestingly, from the documents annexed at pages 83 and 84 of the

writ petition, which was an annexure to the reply of the petitioners

dated April 12, 2023, it is seen that in the projected monthly materials

required for facility management services for the Khadyashree Bhawan

tentatively disclosed by the petitioners to clarify the doubt regarding

quotation of less price, they mentioned certain particular brand

names of products, including the brand name of a particular product

which was apparently to be used as a glass cleaner. Serial No.4 of the

said material list furnished by the petitioners themselves named a

particular brand of glass cleaner. It was claimed in the same row of

the list that five litres of the said brand name of glass cleaner would

require an expenditure of Rs.1265/-.

39. In continuance of the tentative monthly calculation for facade cleaning

for facility management of the Khadyashree Bhawan, the petitioners

quoted a price of Rs.620/- for five litre of the same brand name of

glass cleaner.

40. Again, in another sub-list annexed with the communication of the

petitioners dated April 12, 2023, it was mentioned that three litres of

the same glass cleaner would require Rs.450/-.

41. Hence, the insistence in the further reply of the respondents in their

communication dated April 25, 2023 that the said particular brand

name of glass cleaner be used by the petitioners for giving the

demonstration, was not at all unjust but, rather, in consonance with

the claim made by the petitioners. It is obvious that if the petitioners

did the job during demonstration with some other brand, the costs

would vary considerably, thereby leaving no scope for the authorities

to ascertain the veracity of the demonstratively low price quoted by the

petitioners.

42. In the communication dated April 25, 2023, certain "additional"

Clauses were allegedly mentioned. The petitioners have vociferously

argued that such introduction of new clauses at a belated stage was

beyond the scope of the tender and the petitioners could not be

penalized on such ground.

43. A scrutiny of the so called „additional‟ clauses shows that the first of

those specified that only glass cleaning product of the brand name

suggested by the petitioners should be used for the purpose of glass

cleaning and the other named products, as mentioned by the

petitioners themselves, should be used accordingly for the cleaning

operation and other services. Such clause was not an „additional‟

clause as such, but only a reiteration of the original clauses of the

tender document, read in conjunction with the claims made by the

petitioners themselves.

44. There has to be a transparency in the bidding process, both from the

end of the tender-issuing authority and the bidders. Clarity and

transparency are not a one-way traffic.

45. In the present case, particular criteria were mentioned in the tender

document, pursuant to which specific bids were made by the

petitioners. At the clarification stage which was allowed by the tender

document, the petitioners quoted specific prices in reply to the charge

of the petitioners having quoted demonstratively less prices, referring

to particular brands for particular components of the job envisaged

under the contract.

46. Hence, the insistence of the authorities that in order to achieve

compliance and adherence to the prices actually quoted by the

petitioners, the same brands were to be used during the work, was

neither unjust nor arbitrary.

47. Clause (ii) of the „additional‟ clauses stipulated that cleaning and other

operations shall have to be performed as per the scope of the work of

the NIT and as per the declaration given by the petitioners in their

letter dated April 12, 2023, failure or shortfall to provide satisfactory

service in which regard would entail imposition of penalty as per the

terms and conditions of the NIT. As Clause (i), Clause (ii) is also not a

new clause sought to be introduced later.

48. Clause (iii) stipulated that in terms of the Memo dated February 25,

2022, as the reduced rate of security deposit at 3% ends on March 31,

2023, Rs.14,14,854/- (10% of the total amount of Rs.1,41,48,540/-

that is 10% of the tender value) would be the security deposit

including the EMD amount. The said clause was not de hors the

contemplation of the NIT; rather, was provided for in the tender

document itself.

49. The same logic applies to Clause (iv) which stipulates that additional

performance security of 10% of the tendered value as per the Memo

dated July 18, 2018 would have to be submitted if the tender inviting

authority decided to offer Letter of Acceptance of the tender.

Manpower utilisation, Clause (iv) provide, would also require that

payment should be as per NIT. Thus, the warning of cancellation of

the petitioners‟ bid and forfeiture of EMD was clearly issued in the

communication dated April 25, 2023.

50. In their advocate‟s letter dated April 28, 2023, the petitioners raised

several objections. One of the grounds of challenge by the petitioners

was that the expression "may" was mentioned in Clause 8.9.5 of the

NIT. The said phrase is sought to be interpreted by the petitioners to

mean that there cannot be any automatic forfeiture or that the

forfeiture clause cannot be absolute.

51. Such argument cannot be accepted in the present case, since Clause

8.9.5 clearly stipulates that if the contractor quotes prices below 80%

of the estimated price, the contractor/agency would have to submit

justification mathematically along with authenticated documents to

support the low bid price and supportive documents. Otherwise, it is

stipulated, the respondents reserves the right that the bid may be

cancelled and it may draw the forfeiture of the EMD amount along

with other conditions to bar the said low bidder to take part in the

future process of the Food and Supplies Department.

52. Clause 8.9.5 is composite, contemplating cancellation of the contract,

forfeiture of the EMD amount and debarment of the concerned bidder

in the same breath.

53. The interpretation sought to be lent by the petitioners to "may" is not

acceptable. The very construction of the sentence clearly indicates

that it is the respondents who reserved the right of cancellation,

forfeiture and debarring the bidder. Hence, the forfeiture comes into

operation the moment the respondents so choose subject, of course, to

the satisfaction of the earlier portion of Clause 8.9.5.

54. In the present case, the petitioners quoted price below 80% of the

estimated price and a justification was sought. In the clarificatory

meeting, the petitioners failed to satisfy the respondent-Authorities by

their demonstration. Having failed so, particularly in the perception of

the respondent-authorities, the petitioners cannot now resist the

exercise of due discretion by the respondent-Authorities in cancelling

the bid and forfeiture of the EMD amount as per the terms of the

tender document.

55. The communication dated May 16, 2023 by the respondents to the

petitioners was a notice for the petitioners to be present in the meeting

as per the financial bid in the NIT for the process of the financial bid

evaluation, settling disputes if any and selection of the bidder to serve

as agency for facility management for Khadyashree Bhawan.

56. Subsequently, vide notice dated June 30, 2023, which is impugned

herein, the petitioners were informed that upon clarification and

justification sought for the bid price quoted on different items of work

as per the scope of work and the demonstration of the petitioners on

April 17, 2023, in the perception of the respondents, the same clearly

established that the material quantity and expenses shown in the

mathematical justification are seemingly imaginary.

57. In fact, a hearing was given to the petitioners on May 24, 2023.

58. The petitioners had expressed their unwillingness to serve the

respondent, for which the petitioners were debarred from participating

in the future bids for five years.

59. Before going further, it is to be noticed that one of the objections taken

by the petitioners is that the L-2 bidder was also present at the

hearing.

60. In the present case, the tender process itself has been aborted in view

of both the L-1 and L-2 bidders having failed to satisfy the authorities

on mathematical justification on their significantly low bids, below

80%. Hence, nothing turns on the presence of the L-2 bidder who was

also rejected in the process. That apart, the respondents have

sufficiently justified the presence of the L-2 bidder in the meeting,

since both the L-1 bidder (petitioners) and the L-2 bidder had quoted

low bids, less than 80% of the estimated price.

61. Hence, the meeting and the exercise calling for demonstration cannot

be vitiated in any manner. In any event, the petitioners participated in

the same.

62. Interestingly, the petitioner, after being served with the notice dated

April 25, 2023 where the respondents insisted upon use of the

particular brand name cited by the petitioners themselves, shied away

from such proposal.

63. In fact, the respondents were gracious enough to give another

opportunity to the petitioners to stick to their own cited brand names,

to satisfy the prices quoted by the petitioners corresponding to such

brand name.

64. The result of the communication by the respondents dated April 25,

2023 was, however, a reply by the petitioners dated April 28, 2023,

which was an advocate‟s letter sent by the petitioners. Apart from

quoting certain provisions, the petitioners clearly and in no uncertain

terms requested the respondents to cancel the subject-tender and

refund the EMD money at the earliest within a period of seven days.

Legal action was also threatened by the petitioners.

65. Thus, in the letter dated April 28, 2023, the petitioners, instead of

sticking to their own quotations, expressed an unequivocal intention

to withdraw from the work, after turning out to be the successful

bidder.

66. Reverting back to the clauses of the contract, Clause 6.5, in sub-

clause (i), specifies, as a ground for forfeiture of EMD, the withdrawal

of bid while bids are under consideration during the tender period.

67. Although the parties were at a juncture when, strictly-speaking, the

tender process was over, no work order had yet been issued. The

hearing and demonstration sought by the respondents were also

broadly within the contemplation of the tender process, as evident in

the tender document. Hence, the withdrawal of the bid by the

petitioners was during the tender period. Thus, under 6.5.1, the

respondents had the right to forfeit the amount of EMD.

68. In any event, nothing remained to be cancelled, the since the

petitioners chose to withdraw from the tender process after having

turned out to be successful but having been exposed in the

demonstration and hearing before the respondent-Authorities.

69. Clause 8.9.5 further empowers the respondents, in the event the

contractor fails to justify mathematically along with authenticated

documents to support the low bid price if the prices quoted are below

80% of the estimated price, to cancel the bid and to exact forfeiture of

the EMD amount. Clause 8.9.5 also stipulates that the concerned

bidder may be restrained from taking part in future tender process of

the Food and Supplies Department.

70. Hence, there is no illegality or arbitrariness in the decision-making

process of the respondent-authorities in cancelling the bid of the

petitioners and forfeiting the EMD amount, strictly in terms of the NIT.

71. The next question which arises is whether the respondents blacklisted

the petitioners without a show-cause notice.

72. The requirement of a prior show-cause notice, to grant sufficient

opportunity of hearing to the concerned party, is an essential

component of natural justice, as laid down in UMC Technologies

Private Limited (supra), HI Speed Logistic Pvt. Ltd. (supra) as well as

Pranab Bose (supra), all cited by the petitioners.

73. The question which arises is whether the show-cause notice must

mention blacklisting as a consequence as well.

74. In Gorkha Security Services (supra), the question which came up for

consideration was the necessity of serving show-cause notice as a

requisite of the principles of natural justice. The effects of blacklisting

were discussed by the Supreme Court, as reiterated in several

judgments, and it was observed that a show-cause notice has to

precede a blacklisting.

75. A show-cause notice, as held by the Supreme Court, has to meet two

requirements, namely that the materials/grounds which according to

the department necessitate an action are to be stated, and the

particular penalty/action which is proposed to be taken is also

required to be mentioned.

76. The Supreme Court in the said case also reiterated that the purpose of

a show-cause notice is primarily to enable the noticee to the meet the

grounds on which the action is proposed against him.

77. In such context, let us consider the instant case. The first notice on

the part of the authorities was dated April 10, 2023 where the

authorities clearly mentioned that the price quoted by the petitioners

was less than 80% of the estimated prices, for which a hearing was

given to the petitioners.

78. The petitioners gave a reply to such notice on April 12, 2023

disclosing certain explanations for the meagre price. The petitioners

also cited tentative monthly materials required for the job

contemplated under the tender.

79. In fact, specific parameters were also mentioned by the petitioners in

their reply. Subsequently, on April 17, 2023, the petitioners gave a

demonstration. It is to be remembered that Clause 8.9.5 was well

within the knowledge of both the parties. In fact, the insistence of the

respondents for a mathematical justification and demonstration was

all along disclosed by the respondents to be due to the quotation of

the petitioners being less than 80% of the estimated price, within the

contemplation of Clause 8.9.5. Hence, the petitioners all along had a

clear idea as to the reason for which they were being given a hearing

and were required to give a demonstration as well.

80. The mere pretext that the petitioners were never given a show cause

notice indicating the exact ground of blacklisting or indicating the

consequences of blacklisting pales into insignificant, since the notice

dated April 10, 2023 issued by the respondents clearly mentioned that

failure on the part of the petitioners to submit proper justification as

well as dissatisfaction on the score of such justification would entail

that the respondents would take action "as appropriate as per the

NIT". Clause 8.9.5 was a part of the NIT and was specifically quoted

in the communication dated April 10, 2023. In the very second

sentence of the communication, it was mentioned that the tender

committee found that contrary to the Clause in the NIT at section

8.9.5, the petitioners had submitted much less as the quoted price of

the bid items.

81. Read in a composite manner, the entire text of the communication

dated April 10, 2023 was a clear show cause notice to the petitioners

regarding the alleged violation of clause 8.9.5 and the probable

consequence of implementation of Clause 8.9.5 "as appropriate, as per

the NIT".

82. In fact, the petitioners not only got an opportunity of hearing and gave

a reply on April 12, 2023, the petitioners actually participated in the

hearing and had an opportunity of dispelling the doubts in the minds

of the respondents. A demonstration was also sought from the

petitioners and was given by the petitioners, which resulted in

dissatisfaction of the authorities on the score of mathematical

justification as communicated in the letter dated April 25, 2023.

83. The respondent-Authorities, however, went one step further in fairly

granting a further opportunity to the petitioners to stick to the brands,

corroborating to the respective estimated prices, quoted by the

petitioners themselves, to do the work. It was also mentioned in the

said communication dated April 25, 2023 that failure and/or

dissatisfaction of the tender committee might lead to cancellation of

the petitioners‟ bid and forfeiture of the EMD, to be decided by the

authority of the department.

84. Clause 8.9.5 was all along implicit in the various opportunities of

hearing and demonstration given to the respondents and was the

premise of the replies given by the respondents, which also included

the repercussion of blacklisting.

85. Thus, the petitioners cannot now be permitted to argue that they were

not at notice of the consequence of blacklisting, which was implicit in

Clause 8.9.5, which was quoted by the authorities in their

communications, having got several opportunities of hearing,

representation and demonstration on such count.

86. What the petitioners did after that is also required to be factored in.

On April 28, 2023, instead of taking the opportunity given by the

respondents, the petitioners wrote an advocate‟s letter where they did

not limit themselves to disputing the stand taken by the respondents

but also went to the extent of requesting the respondents to cancel the

subject-tender and refund the EMD money at the earliest, failing

which the petitioners threatened legal action.

87. Such stand of the petitioners clearly comes within the purview of the

first sub-clause that is sub-clause (i) of Clause 6.5.1 of the tender

document, which stipulates that withdrawal of bid, while bids are

under consideration during the tender period, would entail forfeiture

of the EMD.

88. Clause 6.5.1, read in conjunction with Clause 8.9.5, clearly justifies

the respondents‟ impugned action.

89. Insofar as the allegation of imposition of additional conditions by the

respondents is concerned, the same is also incorrect on the score of

security deposit, since Clause 8.3.1 of the tender document provides

that the successful bidder shall furnish within a week of the

acceptance of the tender a security deposit of Rs.4,25,000/- (3% of the

annual contract value), on failure of which and not taking over the

work, the EMD amount would be forfeited and the bidder would be

debarred for a period years of future tender of the respondent-

Authorities, on which the decision of the authorities would be final

and binding to the bidder. Thus, there is no scope of attributing

erroneous imposition of additional costs on the respondents on such

count as well.

90. Apart from the arbitration clause, Clause 8.4 of the NIT stipulates that

in the event of any dispute between the respondents and the

petitioners, the Principal Secretary/Secretary and/or designated

officer on behalf of the respondent-Authorities reserves the sole

discretion to settle the disputes and his/her decision is final, with

which the contractor is to abide by.

91. The petitioners in the present case have not explored any of the said

options as well.

92. The last question which arises is whether the failure of the

respondents to quote the correct clauses in their impugned notice of

forfeiture and debarment if fatal. The respondents, in the said notice,

dated June 30, 2023, clearly speak about the clarification and

justification sought from the petitioners, the demonstration given by

the petitioners on April 17, 2023 and that it established that the

material quantity and expenses shown in the mathematical

justification are seemingly imaginary. It was further cited in the said

communication that the petitioners had expressed their unwillingness

to serve the respondents. Hence, there was a substantial reference to

the pith and substance of the relevant clauses as discussed above.

Clause 6.5.1(iv) was also quoted, which contemplates failure to accept

the work-order or execute the agreement or submit security deposit in

prescribed time as required as per the provision. In the present case,

the petitioners, indeed, failed to accept the work order or execute the

agreement or submit the security deposit in time, more so by their

specific refusal to participate in the work. Thus, Clauses 6.5.1, sub-

clauses (i) and (iv) as well as 8.9.5 of the tender were either quoted or

substantially mentioned, with clear reference to the content of the said

clauses in the impugned notice.

93. Thus, there was no illegality, arbitrariness or unreasonableness in the

decision-making process of the respondent-Authorities in forfeiting the

EMD amount of the petitioners as well as debarring the petitioners for

five years.

94. In such view of the matter, WPO No.1434 of 2023 is dismissed on

contest without any order as to costs.

95. Urgent certified server copies, if applied for, be issued upon

compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )