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Judgment
N.Nagaresh, J
The petitioner, a Private Limited Company, seeks to direct respondents 2 to 5 not to forfeit the EMD amount of ₹50,000/- each deposited by the petitioner for Exts.P1 and P2 works and seeks to command respondents 2 to 5 to refund the EMD amount.
The petitioner-Company is carrying on contract works in various parts of the State. The 5th respondent-Thrikkakara Municipality floated an e-tender for the following works:
(a) CMLRRP – PHASE-II BMBC Retarring works at Masjid Illathumugal Road inward No.28 of the Thrikkakara Municipality.
(b) CMLRRP – PHASE II - BMBC Retarring works to Kunneparambil Road in Ward No.28 of Thrikkakara Municipality.
The petitioner submitted bid for the two works on 30.08.2021 for amounts of ₹59,98,587/- and ₹44,95,238/-. The bid validity period (firm period) which was 60 days, expired on 30.10.2021. The petitioner states that the petitioner was communicated about the selection notice only on 06.11.2021, much after the expiry of firm period.
The petitioner states that as per Ext.P8 PWD Manual, the selection notice shall be issued to the bidder by the tendering authority within seven days or before the expiry of the firm period, whichever is earlier. The petitioner therefore submitted Ext.P5 representation to the Municipality. The Municipality, without considering the representation, has invited fresh tender and is taking hasty steps to forfeit the EMD of the petitioner. The respondents are proposing to take disciplinary action against the petitioner.
The learned counsel for the petitioner argued that as per Ext.P8 PWD Manual, the selection notice shall be issued to the bidder by the tendering authority within seven days or before the expiry of the firm period whichever is earlier. The petitioner was sent an e-mail only on 06.11.2021, which is much after the firm period. Therefore, the petitioner requested for enhancement of rate or in the alternative, return the EMD deposited by the petitioner. Without doing so, the respondents are proceeding to re-tender the work and forfeit the EMD of the petitioner, which is absolutely illegal and unsustainable.
The 4th respondent-Secretary to the Municipality filed a statement and contested the writ petition. The 4th respondent stated that Annexures-R4(a) and R4(b) Government Orders do not contemplate payment of any amount in excess of the accepted tender. The tender submission closure was on 31.08.2021. The tenders were opened on 02.09.2021. The petitioner was found to be the lowest tenderer and the petitioner was selected by the Municipal Council in its meeting on 16.10.2021.
In spite of selection, the petitioner did not care to respond to the request to receive Exts.P3(a) and P4(a) communications. The petitioner was not ready to receive the work sanction orders. Therefore, the Municipality decided to serve Exts.P3(a) and P4(a) to the petitioner by e-mail, as a last resort. The works were of an urgent nature affecting public safety. Such work cannot be dragged on.
The 4th respondent submitted that the petitioner responded positively to the e-mail communication and brought their machinery to the site for commencing tarring work. The petitioner, instead of doing the tarring the work, caused extensive damage to the road, giving rise to several complaints from the public. Drinking water pipelines were destroyed. Concrete drainage slabs were damaged. Ultimately, yielding to the public protest, the petitioner removed all machinery without any intimation to the Municipality.
Thereafter, the petitioner submitted Ext.P5 representation expressing its intention to retract from the contract. In the circumstances, the Municipal Council decided to blacklist the petitioner-Company and to forfeit the EMD. The action of the Municipal authorities cannot be treated as illegal or unjust.
I have heard the learned counsel for the petitioner and the learned Standing Counsel representing respondents 2 to 5. I have also heard the learned Government Pleader representing the 1st respondent.
The tender for the work was floated on 17.08.2021. The bid submission was closed on 31.08.2021. The bid validity therefore expired on 30.10.2021. The grievance of the petitioner is that the petitioner was not intimated about the acceptance of their bid during the firm period. Therefore, the petitioner is not bound to enter into a contract with the respondents. The petitioner therefore requested the respondents to revise the estimate or in the alternative, refund the EMD.
The Municipal authorities would state that they had prepared and offered work sanction order to the petitioner during the firm period, the staff of the petitioner-Company were not ready to accept the communication. Therefore, the communication was given to the petitioner by e-mail on 06.11.2021.
It is the specific case of the respondents that the petitioner accepted the work and deployed machinery at the work site. The petitioner caused severe damage to the road. Water pipelines were destroyed and concrete slabs were damaged. In the circumstances, the respondents are entitled to forfeit the EMD deposited by the petitioner.
Considering the pleadings and arguments, this Court finds that the issues raised in the writ petition involve disputed questions of fact. The allegation of the respondents that they offered selection letter during the firm period itself and the staff of the petitioner refused to accept the same, is an issue which cannot be decided by this Court. Similarly, the further allegation that the petitioner has caused damage to the road is also a disputed question of fact which cannot be adjudicated under Article 226 of the Constitution of India.
In the facts and circumstances of the case, the writ petition is dismissed, leaving open all other remedies available to the petitioner for redressal of grievances.