The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29277 of 2024 Prasanna Kumar Sarangi Petitioner Dr.Binoda Kumar Mishra, Advocate …. -versus- 1.State of Odisha 2.Engineer-in-Chief, Water Resources, Seshasadan, Bhubaneswar 3.Chief Engineer RRIP, Mahisapat 4.Additional Chief Engineer, RRIC, Choudwar, Cuttack 5.Superintending Engineer, R.R.C., Division No.V, Athagarh Opposite Parties Ms.Aishwarya Dash, Addl. Standing Counsel …. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MS. JUSTICE SAVITRI RATHO ORDER 07.01.2025 (Through Hybrid mode) Order No. 01. 1. The writ application has been filed for grant of the following reliefs: It is, therefore, prayed that this Hon'ble Court would be graciously pleased to admit this writ petition, call for the records and issue RULE NISI calling upon the Opposite parties to show cause as to why; i. The "Cancellation of Bid" dated 17.10.2024 (Annexure-I0) shall not be set aside or quashed on the ground of being passed without due consideration of the facts and invocation of false Ground; ii. The Opposite Parties shall not be directed to allow the Petitioner to submit the APS in the shape of Bank Guarantee and execute the tender assignment. Page 1 of 8 And if the Opposite Parties fail to show cause or sufficient cause, this Hon'ble Court be pleased to make the rules absolute; And pass such other order/orders, direction/directions and/or writ/writs as this Hon'ble Court deem fit and proper in the facts and circumstances of the case and in the interest of law, natural justice and rights of the Petitioner. And for this act of kindness, the petitioner shall as in duty bound ever pray.” 2. Pursuant to a Tender Call Notice vide Bid Identification No.ACERRICC-02/2023-24 for two construction works, the petitioner had submitted his bids online and after holding of lottery on 21.06.2024, he was selected as the successful bidder for one work. Vide letter No.891 dated 27.06.2024 (Annexure-3), he was asked by opp. party No.5 to attend office within seven days for execution of agreement with various documents including additional performance security in shape of Bank Guarantee in favour of the Divisional Officer/NSC/Post Office Time Deposit Account / Kissan Vikas Patra Bank Guarantee pledged in favour of Superintending Engineer, Rengali Right Canal Division No.V, Athagarh (Annexure-3). He obtained the bank guarantee on 06.08.2024 and submitted it on 09.08.2024 but it was not accepted by the opposite party No.5 who issued him a show cause notice on the same day as to why the tender accepted in his favour should not be cancelled. On the same day, he submitted a reply praying for Page 2 of 8 acceptance of the Bank Guarantee. He again submitted his reply with copy of bank guarantee towards APS on 11.08.2024 by email. He was issued a 2nd show cause notice on 23.07.2024 to which he responded on 25.07.2024. But the tender for both the works has been cancelled on 17.10.2024 vide Annexure-10. 3. The petitioner had earlier filed W.P.(C) No.25163 of 2024 challenging the letter No.498 dated 23.07.2024 with the prayer to allow the petitioner to submit the APS in the shape of Bank Guarantee and to execute the tender assignment and to remove the petitioner from the blacklisting if already blacklisted. 4. Perusal of the order dated 22.10.2024 reveals that after some argument, the petitioner was permitted to withdraw the writ application with liberty to challenge any action taken by the opposite parties subsequent to filing of the present writ application.
Legal Reasoning
5. Dr. Binod Kumar Mishra, learned counsel for the petitioner has submitted that in the Tender call notice (Annexure-1), it had been mentioned that the amount of additional performance security could be submitted in the shape of term deposit receipt pledged in favour of the Divisional Officer / Bank Guarantee in favour of the Divisional Officer from any Nationalized/Scheduled Bank/ NSC/Post Office Time Deposit Account/Kissan Vikas Patra. But in Page 3 of 8 letter dated 27.06.2024 sent by email instead of registered post he was asked to deposit the APS in the shape of NSC Post Office Time Deposit Account/Kissan Vikas Patra/Bank Guarantee. (The option of Term Deposit Receipt was not given). It is the further case of the petitioner that he extended his bid validity on 01.07.2024 and that it is convenient for contractors having running business to furnish security deposits such as APS in the shape of term deposit receipts as they can be obtained within a day and contractors having running business do not use NSC/Post Office Time Deposit Account/Kissan Vikas Patra for depositing security or APS of large amounts. Term deposit is the most preferred form of deposit used by the contractors. By removing the option of submitting term deposit receipt, the petitioner was effectively left with bank guarantee as the only option. As the SBI branch, Cuttack where the petitioner had his account was undergoing audit, he could not get a bank guarantee from that bank and opened a new account at UCO Bank, Dhenkanal and had obtained the required bank guarantee on 06.07.2024 (Saturday). The next date being a Sunday and the day of Rath Yatra, the State Government declared Monday, i.e., 08.07.2024 as holiday. On Tuesday, i.e., 09.07.2024 he had gone to the office of opposite party No.5 with the documents as required Page 4 of 8 under Annexure-3 including the bank guarantee issued by UCO Bank. But the opposite party No.5 refused to accept the documents and bank guarantee and issued a show cause notice to him to which he replied on the same day. The petitioner again submitted his reply through email on 11.07.2024 alongwith copy of the bank guarantee dated 06.07.2024 issued by the UCO Bank but on 23.07.2024, the opposite party no.4 vide letter no.498 dated 23.07.2024 issued a second show cause notice as to why the tender in his favour should not be cancelled as per DTCN Clause No.19 (iii) of the bid document. The petitioner sent his reply on 25.07.2024 explaining his difficulty and prayed for acceptance of the bank guarantee for APS and ISD amount. Thereafter, since the petitioner did not receive any response to the show cause reply on 14.08.2024 the petitioner again wrote a letter to the opposite party No.3 asking for considering his case sympathetically and also brought to the notice of the opposite party no.3 that the petitioner had voluntarily extended the bid validity period on 01.07.2024 without considering his request for extension of time and acceptance of Bank Guarantee, the tender for both works was allegedly cancelled on 17.10.2024. 6. Dr.Binoda Kumar Mishra, learned counsel for the petitioner submits that since the omission of option for depositing APS by Page 5 of 8 term deposit receipt was illegal and the petitioner had submitted a valid explanation for not being able to deposit the APS in time and had voluntarily extended his bid validity and had deposited the APS in the form of bank guarantee with only a few days delay, it should have been accepted. He also submits that the opposite parties should not have blocked his portal or proceeded against him for blacklisting. 7. Ms.Aishwarya Dash, learned Addl. Standing Counsel brings to our notice Clause-19 (iii) of the Detailed Tender Call Notice, (Annexure-1) wherein it has been mentioned as follows : “The applicable Additional Performance Security (APS) in shape of Term Deposit Receipt pledged in favour of the Divisional Officer/Bank Guarantee in favour of Divisional Officer from any Nationalised/Scheduled Bank in India counter guaranteed by its local branch at Bhubaneswar is to be submitted within seven days of Issue of letter of acceptance (LoA) by the Divisional Officer (by e-mail) to the successful bidder, otherwise the bid of successful bidder shall be cancelled. Further, proceeding for blacklisting shall be initiated against bidder as per Works Department Office Memorandum No. 14459 dtd. 20.09.2018”. Page 6 of 8 She has submitted that the petitioner had been given the option to deposit APS through bank guarantee and other Term Deposit. Omission of term deposit receipt in the letter was not in any way illegal. The petitioner did not deposit the amount within seven days. On account of his failure to do so and as the bid validity had expired, the tenders for the two works were rightly cancelled. 8. From a perusal of Annexure-10, it is apparent that the two works under Bid Identification No.ACERRICC-02/2023-24 have been cancelled on the ground that the 1st lowest bidder - cum winner of the lottery did not deposit the APS within the specified time limit and the bid validity of the tenders have expired. 9. We find that the petitioner has withdrawn the earlier writ petition which had been filed challenging Annexure-3. In fact petitioner chose to submit the APS by way of bank guarantee. It is not his case that he had offered a term deposit receipt within time and it was not accepted. 10.
Decision
In view of the above discussion and Clause 19 (iii) of the DTCN, we do not find any merit in the submission of the learned counsel for the petitioner. 11. Neither the show cause notices nor Annexure-10 reveal that the portal of the petitioner has been blocked or that he has been Page 7 of 8 blacklisted, submission of the learned counsel for the petitioner in this regard is therefore baseless. 12. As the opposite parties have acted in accordance with the Clause 19 (iii) of the DTCN and cancelled the tender due to non- submission of APS by the petitioner (selected bidder) within seven days of intimation, no interference is called for in exercise of our power under Article 226 of the Constitution of India. 13. The writ application is dismissed. 14. It goes without saying that if the proceedings for blacklisting are initiated against the petitioner as envisaged in Clause 19 (iii) of the DTCN, the petitioner shall be given a chance to show cause before any final order is passed. Chief Justice (Chakradhari Sharan Singh) Judge (Savitri Ratho) Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 10-Jan-2025 20:21:46 Page 8 of 8