TMI Blog2011 (4) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... ime bidder' means some kind of a managing partner of a consortium, who acts on behalf of the consortium and with whom interaction in respect of the bidding activities is to take place. In respect of the tender submitted by it, the said consortium qualified in evaluation of the pre-qualification bid and thereafter also qualified in the evaluation of the technical bid. However, for passing these two stages, membership of the Wipro in the consortium played an important and material role as is mentioned in paragraph No. 15 of the return of the first respondent. 3. According to that paragraph no. 15, under the parameters prescribed for the purpose, the consortium obtained a total of 77 marks because of which the consortium qualified. Out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t date prescribed for receipt of bids, by giving a written notice to the tenderer. Subsequent to the last date of receipt of bids and upto the expiry of the specified bid validity period, the bid could not be withdrawn by the bidder. It is provided in the said Clause that such withdrawal may result in the forfeiture of the EMD (bid security) of the bidder. 7. Clause 6.2 of the tender conditions also specifically provided that the bid security could be forfeited at the discretion of MPSEDC if a bidder withdraws its bid during the period of bid validity. 9. As stated above, the extended period of bid validity was upto 28.7.2008, and by then the pre- qualification bids and the technical bids had been opened, in both of which the consorti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be sorted out between the petitioner and Wipro even till date. 11-A. Thereafter the security in the form of bank guarantee furnished by the petitioner was encashed by the first respondent by means of letter dated 22.7.2008. The financial bids of other bidders excluding the consortium were opened and the contract was awarded to the best bidder. 12. We have heard learned counsel for the petitioner, learned counsel for respondent no. 1, learned counsel for respondent no. 2 and the learned counsel for respondent no. 5 at great length. 13. It could not be shown to us by the learned counsel for the petitioner that there was any possibility of the consortium qualifying in the first round of pre-qualification bid or in the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urity is taken and also the purpose for which withdrawal of bids is not permitted during the validity period of the bid. 17. We are unable to accept the view suggested by the petitioner that it should be held that such withdrawal of a material member from the consortium which results in disqualification of a consortium should not be treated as withdrawal of the bid as a consequence of which view the bid security escapes forfeiture. The reason is that such a law would give a wrong handle in the hand of unscrupulous consortiums whose members can collude to make one or more members of the consortium to withdraw from the consortium causing disqualification and thereby achieve the same result as withdrawal of the bid, without the risk of forf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving of the notice contemplated above regarding forfeiture of bid security, the bidder would get an opportunity to respond as to why the entire bid security or any part of it should not be forfeited. The response of the bidder should be considered by the first respondent by a reasoned decision, and only thereafter the action as decided by the first respondent towards the forfeiture should be taken. 21. Giving of such notice is prompted by the fact that both in Clause 7.1.8 as well as Clause 6.2 of the tender conditions there is a discretion conferred on the first respondent to forfeit or not to forfeit the bid security if the bidder is guilty of violating any of the conditions mentioned in the aforesaid clauses. 22. If no such cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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