Govind Kamat vs. The Managing Director And Anr

Held

The Court held that the appellant was entitled to a refund of the EMD amount of Rs. 15,37,305/-. While the learned Single Judge had correctly set aside the blacklisting order, the Court found that the Single Judge ought to have considered the refund of EMD when upholding the remaining portion of the order that rejected the bid. Relying on the Supreme Court's decision in Mohd. Gazi, the Court reasoned that the respondent could not proceed to forfeit the EMD amount and blacklist the appellant. The appeal was allowed to the extent of directing the refund of the EMD. The Court did not interfere with the learned Single Judge's decision regarding the execution of the agreement based on the bid amount, implying that the rejection of the bid itself was not being disturbed, only the forfeiture of EMD.

Facts

The appellant submitted an e-bid for a refreshment/canteen contract with the North East Karnataka Road Transport Corporation (NEKRTC) for Rs. 9,56,862/- per month, including GST. The appellant paid an EMD of Rs. 15,37,305/-. The respondent, NEKRTC, instead of executing the agreement, forfeited the EMD and blacklisted the appellant, citing non-compliance with tender conditions regarding the separate declaration of GST. A previous writ petition filed by the appellant was allowed, quashing the forfeiture and blacklisting order, and remanding the matter. Upon reconsideration, the respondent again rejected the appellant's highest offer, forfeited the EMD, and blacklisted the appellant for two years. The appellant challenged this in a fresh writ petition, which the Single Judge partly allowed by setting aside the blacklisting but upholding the forfeiture of EMD and rejection of the bid. The appellant then filed this intra-court appeal.

Key Issues

1. Whether the appellant's bid amount of Rs. 9,56,862/- per month was inclusive of GST at 18% as contended by the appellant, or exclusive of GST as contended by the respondent, thereby failing to comply with the tender notification (Annexure-A)? Petitioner's arguments: The appellant argued that the e-procurement portal (Annexure-C) did not have a separate column for GST, and the bid amount shown was inclusive of statutory taxes. They relied on Annexures C and D, which they claimed indicated the bid was inclusive of GST. They contended that the respondent's demand for an additional deposit of Rs. 72,46,688/- (including GST separately) was contrary to the tender notification and the online bid submission. Respondent's arguments: The respondent argued that the tender notification (Annexure-A) clearly stipulated that bidders must mention the financial offer and GST at 18% separately. They contended that the appellant failed to comply with this condition, despite being informed through various communications (Annexures F, K, G1, G2, G3). They also pointed to the appellant's own letter (Annexure-J) indicating readiness to deposit Rs. 59,06,757/-, suggesting an understanding of separate GST payment.