WRIC/18909/2026 of M/S DS ENTERPRISES Vs UNION OF INDIA AND 4 OTHERS on 13 May 2026

1. Heard Sri Devansh Misra, learned counsel for the petitioner and Sri Vivek Kumar Singh, learned counsel for the respondents.

2. The petitioner being aggrieved by the Condition No.2 in the Letter of Acceptance by which petitioner has been asked to furnish an Additional Performance Guarantee @ 15.01% of the estimated cost as per O.M. No.DG/CON/Construction 2023/20 dated 27.02.2026 has approached this Court by means of present writ petition.

3. Challenge has been laid by the learned counsel for the petitioner on the ground that as per the tender condition, the petitioner is to submit only 5% of the bid amount as performance guarantee. To support the said argument, learned counsel for the petitioner has placed reliance upon Clause 12 of the General Conditions of the Contract and Schedule 'E' of Proforma of Schedules (Major Component).

4. He contends that the last bid was submitted by the petitioner at 3:00 P.M. on 27.02.2026, and as per Schedule 'E', the conditions of the contract could have been altered before submission of last bid. It is submitted that office memorandum which has been relied upon by the respondents while incorporating the condition in Letter of Acceptance that the petitioner is liable to be paid 15.01% as Additional Performance Guarantee has been uploaded on the website at 4:57 P.M. The petitioner in this respect has filed supplementary affidavit, which is taken on record. Accordingly, it is submitted that the rules of the game cannot be changed in midway. Versus Counsel for Petitioner(s) : Anup Shukla, Devansh Misra Counsel for Respondent(s) : A.S.G.I. M/S Ds Enterprises .....Petitioner(s) Union Of India And 4 Others .....Respondent(s)

5. He submits that in other cases where memorandum has been issued for imposition of Additional Performance Guarantee, a corrigendum has been issued by the competent authority extending the time for submitting bid. Accordingly, it is contended that the imposition of Additional Performance Guarantee @ 15.01% is illegal and amounts to arbitrary exercise of power by the respondent-authority.

6. Per contra, learned counsel for the respondents would contend that the question as to whether the memorandum has been uploaded on the website at 4:57 P.M. i.e. after submission of last date is the disputed question of fact which can very well be looked into by the competent authority. Accordingly, it is contended that the matter may be relegated to the competent authority.

7. In view of the submissions advanced by the learned counsel for the parties, we dispose off the writ petition permitting the petitioner to file a detailed representation before the respondent no.3-Chief Engineer-Cum- Executive Director, BHU Project, Varanasi CPWD ventilating all his grievances against the imposition of Additional Performance Guarantee @ 15.01% within a period of two weeks from today. On submitting such representation, the respondent no.3 shall consider and decide the same strictly in accordance with law after giving due notice and opportunity of hearing to the petitioner within a period of one month from the date he receives the representation of the petitioner.

8. For a period of three months or till the disposal of representation of petitioner by the respondent no.3, whichever is earlier, the respondent- authority shall not forfeit the earnest money of the petitioner. May 14, 2026 NS WRIC No. 18909 of 2026 2 (Garima Prashad,J.) (Saral Srivastava,J.) Digitally signed by :- NITIN KUMAR High Court of Judicature at Allahabad