1. By this writ petition, challenge is made to the orders dated 14/15.3.2016, 22.3.2016 and 30.3.2016 by which earnest money was forfeited and the petitioner was debarred to participate in the tender for one year. The direction is also sought for refund of earnest money of Rs.4 lakh.
2. Learned counsel submits that pursuant to e-tender floated by the respondents, petitioner participated in the bid for supply of approximately 6012 Qunt. TFL (5 kg.cloth packing) Hybrid Muticut Sorghum Sudan Grass (SSG) seeds at various Milk Unions/ Farms in the State of Rajasthan for the year 2015-16.
3. After opening technical bid, financial bid was also opened where petitioner stood L-4. The offer given by the lowest bidder (L-1) was accepted but it did not execute the agreement or the work. The same position remain with other lowest bidders L-2 and L-3. The bid of the petitioner was then accepted without a counter offer. As per the procedure given in the Rajasthan Transparency In Public Procurement Rules, 2013, the counter offer is to be given in case lowest bidder fails to perform the work. It is to be given to the next lowest bidder i.e. L-2 and, in case of his failure, to give counter offer to L-3 and so on.
4. In the instant case, on failure to execute the agreement and work by lowest bidders, counter offer was not given to L-2 and, on its failure, to L-3 and, finally, to the petitioner, who was L-4 thus rule 69 of the Rules of 2013 has not been followed. In absence of compliance of the rule 69, acceptance of the offer given by the petitioner becomes illegal. It could not have subjected to forfeiture of the earnest money and, at the same time, debarration to participate in the tender for a period of one year.
5. It is also stated that the offer given by the bidder needs to be accepted within a period of 20 days but, in the instant case, it took around three months thus procedure therein was also floated by the respondents. It is lastly submitted that earnest money of the contractors L-1 to L-3 was not forfeited but, in a discriminatory manner, it has been forfeited in the case of the petitioner thus for all these reasons, impugned orders deserve to be set aside with a direction to the respondents to refund the earnest money of Rs.4 lakh and not to debar him.
6. Learned counsel for respondents have contested the writ petition. It is submitted that after floating e-tender, bids were given by various parties. After opening the technical bid, financial bid was opened for those who remained successful in technical bid. The petitioner was successful in the technical bid thus its financial bid was also opened. He remain L-4. The offer given by the lowest bidder i.e. L-1 was accepted but he did not execute the agreement. The bid of the next bidder i.e. L-2 was accepted and on his failure to execute the agreement, bid of L-3 was accepted and, on his refusal, it was given to the petitioner. The respondents did not take time in acceptance of the offer of the petitioner. It was taken immediately when agreement was not executed by the first three bidders. The acceptance of the bid of the petitioner was on the rates given by him and not at a lower rate so as to send counter offer or to call him for negotiation, rather, it is not even permissible under rule 69 of the Rules of 2013. When the petitioner refused to perform the work after acceptance of his bid, consequence followed and, accordingly, earnest money was forfeited with debarration of the petitioner for a period of one year which expired today i.e. 30.3.2017 thus so far as debarration is concerned, it has already lived its life. Taking into consideration the facts aforesaid, writ petition deserves to be dismissed.
7. An argument of maintainability of the writ petition in reference to clause for arbitration has also been made.
8. I have considered rival submissions of the parties and perused the record.
9. It is not in disputed that after e-tender for supply of approximately 6012 Qunt. TFL (5 kg. cloth packing) Hybrid Muticut Sorghum Sudan Grass (SSG) seeds at various Milk Unions/ Farms, technical and financial bids were opened. In the financial bid, three other bidders remained lower than the petitioner. The committee accepted the bid of L-1 but when he failed to perform or execute the agreement, an adverse order of forfeiture of earnest money was passed followed by acceptance of bid of L-2, however, it resulted with same fate as was in the case of L-1. Same story was repeated even in the case of L-3 and, lastly of L-4 i.e. the petitioner. The petitioner's bid was accepted but it failed to undertake the work after executing the agreement. In view of above, provision of forfeiture of earnest money was invoked and appropriate order has been passed.
10. It is not necessary that when a bid given by the bidder other than for L-1 is accepted, counter offer has to be given as alleged by learned counsel for petitioner. Rule 69 has been referred by the petitioner, which is quoted hereunder for ready reference -
"69. Negotiations.-(1) Except in case of procurement by method of single source procurement of procurement by competitive negotiations, to the extent possible, no negotiations shall be conducted after the pre-bid stage. All clarifications needed to be sought shall be sought in the pre-bid stage itself.
(2) Negotiations may, however, be undertaken only with the lowest or most advantageous bidder under the following circumstances-
(a) when ring prices have been quoted by the bidders for the subject matter of procurement; or
(b) when the rates quoted vary considerably and considered much higher than the prevailing market rates.
(3) The bid evaluation committee shall have full powers to undertake negotiations. Detailed reasons and results of negotiations shall be recorded in the proceedings.
(4) The lowest or most advantageous bidder shall be informed in writing either through messenger or by registered letter and email (if available). A minimum time of seven days shall be given for calling negotiations. In case of urgency the bid evaluation committee, after recording reasons, may reduce the time, provided the lowest or most advantageous bidder has received the intimation and consented to regarding holding of negotiations.
(5) Negotiations shall not make the original offer made by the bidder inoperative. The bid evaluation committee shall have option to consider the original offer in case the bidder decides to increase rates original quoted or imposes any new terms or conditions.
(6) In case of non-satisfactory achievement of rates from lowest or most advantageous bidder, the bid evaluation committee may choose to make a written counter offer to the lowest or most advantageous bidder and if this is not accepted by him, the committee may decide to reject and re-invite bids or to make the same counter-offer first to the second lowest or most advantageous bidder, then to the third lowest or most advantageous bidder and so on in the order of their initial standing and work/supply order by awarded to the bidder who accepts the counter-offer. This procedure should be used in exceptional cases only.
(7) In case the rates even after the negotiations are considered very high, fresh bids shall be invited."
11. The clause aforesaid restricts negotiation at pre-bid stage. The negotiation may be undertaken with the lowest or most advantageous bidder when ring prices are quoted or the rates quoted vary and much higher than prevailing market rates. The lowest or most advantageous bidder would be informed in writing and minimum seven days time is given for negotiation. The negotiation would not make original offer inoperative. In the event of non-satisfactory achievement of rates from such bidder, bid evaluation committee may make counter offer to such bidder and, in case it is not accepted by him, reject and re-invite bids or may make the same counter offer to second lowest or most advantageous bidder and then to third or so on and work/ supply order would be awarded to the bidder who accepts counter offer. However, above procedure is to be used in exceptional cases only. In case of very high rates even after negotiation, fresh bides to be invited.
12. In the instant case, competitive rates were given by all the bidders thus acceptance of bid was without counter offer or negotiation. In the light
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of the facts given above, the question of counter offer to L-2, L-3 and L-4 does not arise when their bid was accepted on the price quoted by them. In view of aforesaid, I am unable to accept the argument raised by the petitioner. The counter offer is to be given when rates are to lower down. 13. So far as second argument in regard to delay in acceptance of bid is concerned, I am unable to accept the aforesaid argument also. The petitioner's offer was accepted immediately when L-3 failed to execute the agreement thus allegation of delay in acceptance of the bid given by the petitioner is not made out. 14. In the light of the discussion made above, I do not find any reason to cause interference in the impugned orders for forfeiture of earnest money and so far as order of debarration is concerned, it has already lived its life as it expired today itself. 15. In the result, writ petition is dismissed.