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2020 (4) TMI 63 - HC - Indian LawsWithdrawal of Bid - forfeiture of Earnest Money Deposit (EMD) - blacklisting the Petitioner from participating in future Tenders for not having separately mentioned the GST rate in the tender - HELD THAT:- There is considerable force in the submissions made by the learned counsel for the Petitioner with reference to the materials brought on record. Insofar as there is no dispute that the GST rate originally notified as per Annexure P/3 came to be modified and segregated into two, vide Annexure P/4 dated 22.08.2017 (stipulating a lesser rate of 12% for construction of roads for public purpose (Section–B) and a higher rate of 18% for construction of roads for internal/private purpose (Section–C), it was obligatory for the Respondents to have provided separate columns in the Annexure P/2 tender issued on 09.09.2019 when Annexure P/4 notification was governing the field. That apart, by virtue of the clear stipulations under clause 12.4 of the ITB, read with Section 9 of the GST Act, payment of GST was to be the liability of the awarder and hence, mentioning or non-mentioning of the rate of GST was to be of no consequence as it is a 'constant figure' with regard to which no alteration can be thought about either by the bidder or by the awarder. Above all, if at all, there was any mistake or the bid was defective for not quoting the proper amount with reference to the duties/taxes payable, it was quite open for the Respondents to have 're-evaluated the bid' in terms of clause 23.3, read with clause 23.2.3 of the ITB to work out the actual quote and to identify the L-1 bidder. Obviously, it is without any regard to these vital aspects, that the proceedings were sought to be pursued hastily, by issuing Annexure P/8; virtually without considering the objection/ explanation raised by the Petitioner vide Annexure P/7 in response to Annexure P/5 - Annexure P/8 order/proceedings dated 09.01.2020 impugned in the writ petition is not liable to be sustained and hence, it is set aside. It is still open for the Respondents to re-evaluate the bid submitted by all the participants including the Petitioner and to work out the actual bid amount, if the GST was also to be considered as part of the bid and thus, adding it on, instead of deducting the GST from the bid quoted by the Petitioner or such other bidder - Since there cannot be any dispute with regard to the 'rate of tax' payable and as to the liability of the employer/awarder to satisfy the same, it is open for the Respondents to consider the quotes made by the bidders including the Petitioner (treating the same as excluding the GST) as nobody has claimed it to be inclusive of the GST and further when the tender conditions stipulate that it has to be excluding the GST. Petition allowed.
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