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Judgment
A.S. Bopanna, J.—The petitioner is before this court assailing the tender notification dated 12.04.2012 published in the newspaper as at Annexure-A to the petition. The petitioner is also seeking for appropriate directions to the respondents in the instant petition. The petitioner is an enlisted Contractor of the respondents. In that regard, in respect of the tender notification at Annexure-A for providing house keeping and upkeep services of various offices/BTS sites and Telephone Exchanges, the petitioner had responded. Pursuant to the same, the petitioner is also stated to have deposited a sum of Rs. 3,50,000/- on 21.03.2012 towards EMD as provided under the notification dated 12.04.2012. Before the completion of the said process, he respondents are stated to have published a fresh tender notification dated 24.02.2012 as at Annexure-B to the petition. The petitioner therefore claiming to be aggrieved by the tender notification at Annexure-B to the petition is before this court.
The learned counsel for the petitioner would contend that the petitioner having responded to the tender notification at Annexure-A was entitled to be considered. It is his case that the petitioner was the lowest tenderer in respect of the same and despite this, the respondents without assigning any reason whatsoever and without providing opportunity to the petitioner have subsequently floated the subsequent tender notification at Annexure-B. It is therefore contended that the right which had accrued to the petitioner to be considered under the notification at Annexure-A has been taken away and therefore the same is not sustainable. It is in that context, the petitioner contends that the notification at Annexure-B should be quashed and the respondents should be directed to proceed further with regard to the process which had been commenced under the notification at Annexure-A to the petition.
The respondents have filed their objection statement. It is contended that the very reason for floating the tender notification at Annexure-A itself was due to the act of the petitioner herein. It is their case that in respect of a similar work, the petitioner had tendered and was successful and accordingly the work had been assigned to the petitioner on 01.08.2011. Before the expiry of the said period, the petitioner had corresponded with the respondents indicating certain difficulties to proceed with the said contract and in that regard had also pleaded ill-health. Since, the petitioner was unable to proceed with the contract, the notification at Annexure-B came to be issued and since the petitioner had once again applied in reply to the same and while considering his bid along with the bid of another person who had responded, the Tender Evaluation Committee had taken into consideration the cause due to which the present process had occurred and in that context was of the view that the bid of the petitioner cannot be accepted and it could be negotiated with the only other bidder. Notwithstanding the same, the respondents have taken a decision to re-tender, so that appropriate offers would be received. Hence, it is contended that the action of the respondents is justified.
The petitioner no doubt has filed rejoinder statement explaining the reasons that the earlier default cannot be made a basis for rejecting the claim of the petitioner which had been made pursuant to Annexure-B, more particularly in a circumstance when the respondents have accepted the EMD of a sum of Rs. 3,50,000/- which had been deposited by the petitioner on 21.03.2012.
In the light of the above, firstly it is to be noticed that the tender proceedings pursuant to the notification at Annexure-B had not been concluded and no offer had been made to the petitioner. If that be the position, the question of hearing the petitioner or granting an opportunity before re-tendering the work would not arise. However, what is necessary to be noticed is as to whether the justification put forth by the respondents for re-tendering the work vide impugned notification at Annexure-A is justified and in that circumstance whether the grievance put forth by the petitioner would still be accepted by this Court.
The fact that the petitioner had responded to an earlier tender and work was assigned to the petitioner on 01.08.2011 cannot be in dispute. The respondents have referred to the communications dated 17.01.2012, 06.02.2012 and a certificate dated 07.02.2012 as at Annexures-R1 to R3 to refer to the earlier contract which had been granted to the petitioner and the reasons assigned by the petitioner to withdraw from the said contract both with regard to petitioner not being able to perform at the rates that had been agreed and also with regard to ill-health of the petitioner.
If this aspect of the matter is kept in view, what is to be noticed is that the petitioner in fact had withdrawn from an earlier contract halfway through and it is in that context, the notification at Annexure-B was necessitated. In such circumstance, when the petitioner having withdrawn from the earlier contract had once again responded to a subsequent contract, the Tender Evaluation Committee as per Annexure-R5 has taken note of these aspects and in a circumstance of the present nature, the Tender Evaluation Committee was justified in taking note of the circumstance under which the need for calling fresh tenders had arisen and the doubt which had been expressed by them with regard to the reliability of the petitioner.
If that be the position and when the Tender Evaluation Committee had taken appropriate decision in the present circumstances, it was still open for the respondents to negotiate and award the work to the other remaining tenderer by bringing down the rates. However, the respondents have chosen to adopt a more transparent procedure by re-tendering the work and seeking for better offers. If that be so, no fault could be found with the respondents and in such circumstance, the grievance as put forth by the petitioner cannot be accepted by this Court. In that view of the matter, I am of the opinion that the instant petition being devoid of merits is accordingly disposed of. It is however made clear that if the petitioner seeks for refund of the EMD which has been deposited by him, the respondents shall refund the same to the petitioner without any demur.