Full Judgment
L. Mohapatra, J.
1. The petitioner is a super class Contractor and challenges the legality of the order in Annexure-2 issued by the Executive Engineer, M.I. Division Ganjam-I directing the petitioner to submit unconditional bank guarantee of Rs. 13,54,000/- towards performance security.
2. Case of the petitioner is that pursuant to Tender Call Notice issued by the opposite party No. 3 for construction of Jhodabandha MIP the petitioner submitted it's tender. After opening of the tender it was found that the tender submitted by the petitioner had quoted the lowest rate. By letter dated 17.2.2003 the Executive Engineer, M.I, Division intimated the petitioner that its tender for the above work has been accepted and the petitioner was directed to furnish requisite documents and deposit security deposit of Rs. 54,143/-in shape of N.S.C./Time Deposit Pass Book duly pledged in favour of the Executive Engineer, M.I. Division, Ganjam-I as well as for signing the agreement. At the same time, in Annexure-2 the petitioner has also been asked to furnish unconditional bank guarantee of Rs. 13,54,000/- towards performance security. The petitioner challenges the said direction for furnishing bank guarantee towards performance security on the following grounds :
(i) In the tender call notice there was no such stipulation for furnishing unconditional bank guarantee towards performance security.
(ii) In the tender schedule though the said terms does not find place, at a later stage the condition has been introduced in hand and therefore the petitioner is not liable to furnish bank guarantee, as directed, towards performance security.
3. A preliminary counter-affidavit has been filed on behalf of the opposite parties wherein claim of the petitioner that it's tender was accepted by the Executive Engineer is not in dispute. However, it is stated in the counter-affidavit that estimated cost of the project was Rs. 1,01,56,137.62 paise whereas the petitioner had quoted Rs. 77,87,151.95 paise which is 23.33% less than the estimated cost. It is also stated in the counter-affidavit that all contractors having 'A' and 'B' class licence of Public Works Department who do not pay the lump sum security are required to pay 1% estimated money at the time of submitting tender and 1% as initial security deposit at the time of acceptance of tender. Stand of the opposite parties in the counter-affidavit is that since the bid amount of the petitioner was 23.33% less than the estimated cost, i.e., less by Rs. 13.54 lakhs from the estimated cost, he was required to furnish unconditional bank guarantee towards performance security before execution of agreement. Clause 64 of the Detailed Tender Call Notice (D.T.C.N.) which is otherwise known as Tender Schedule prescribes such a stipulation. It is also submitted by the learned Additional Government Advocate in course of hearing that not only the petitioner had agreed to the clause relating to furnishing of bank guarantee towards performance security in the tender schedule but also had agreed to the condition in two of its letters addressed to the Executive Engineer.
4. Considering the submission of the learned counsel appearing for the parties as stated above, first question that arises for consideration is whether the clause with regard to furnishing of bank guarantee towards performance security was there in the tender schedule originally or it was inserted later on. This disputed question of fact cannot be decided in the writ application. However, prima facie it appears that while submitting tender D.T.C.N. Is required to be filled up by the tenderer and the contractor has to sign on each page of the D.T.C.N. Page-6 of the said D.T.C.N. shows that Clause 64 prescribes for furnishing performance security and the same has been accepted by the petitioner by signing below the said clause. In the original tender schedule furnished by the petitioner it also appears that the said clause was available in the D.T.C.N. Apart from the above, learned Additional Government Advocate has produced letter dated 22.11.2002 written by the petitioner to the Executive Engineer wherein it has expressed its willingness to deposit performance security as required at the time of agreement. It also appears from Annexure-F of the counter-affidavit filed by the opposite parties that the petitioner in its letter addressed to the Executive Engineer had intimated that he could not arrange bank guarantee as desired by the Executive Engineer, since the bank managers of the some banks could not issue bank guarantee due to end of financial year and prayed for two weeks time to sign agreement. The petitioner having itself written two letters to the Executive Engineer seeking time for furnishing bank guarantee towards performance security, we do not find any substance in the argument advanced by the learned counsel for the petitioner that Clause-64 in the D.T.C.N. was inserted at a later stage. Moreover, we do not find any illegality in the impugned letter since the petitioner has quoted 23.33% less than the estimated cost and therefore it was necessary to keep performance security in shape of bank guarantee so that the petitioner does not leave the work half way through.
So far as the first contention of the learned counsel is concerned, we do not find any force therein as in the tender call notice, all conditions required to be complied with are never mentioned. The Tender Schedule supplied to the applicant contains all the conditions and before submission of tender, the applicant is supposed to carefully read all conditions of the Tender Schedule.
5. In view of the reasons stated above, we do not find any merit in the writ application and the same stands dismissed.
Sujit Barman Roy, C.J.
6. I agree.