I have generally observed that the tender verbiage are in such a way that date of release or return of EMD or Bank Guarantee becomes difficult to conclude.
During my tenure, I was approached by business team to give view as government client was taking any decision on returning of the BG .
The query was “Can we request for
the return of BG given against EMD requirement under the RFP and when?”
It looked very simple from the question sent to me but upon perusal of the documents and circumstances I felt like laughing at complexity got created due to circumstances in BID Evaluation and Process or lethargically no communication of response from the government.
What was holding financial loss and cost, was a decision pending from government to reject or cancel the tender, though the validity of tender had expired and government should have return the bank guarantee beyond the validity period, which was of no gain to them too.
I suggested Business team to put a request to return of the original BG supporting my view by the below rationale:-
The EMD was to be valid for a period of 45 days beyond the validity
period of the bid. The Validity period was 180 days from the opening date of bid. The financial bid submitted was also valid till 180 days from the opening date of
the bid.
The forfeiture of EMD was applicable if we withdraw /amend before
the validity period of the Bid which is again 180 days from the opening date of
bid.
Further, the return of EMD of unsuccessful bidders shall be returned
within 30 days of conclusion of the bid process(the
bid process concludes for an unsuccessful bidder upon been not qualified for
financial bid), as per relevant clause in RFP. My assumption is that financial bid was to be opened within 180 days. If calculated, by taking conservative approach, 225(180 + 45) days have had already passed hence it was easy to conclude and believe that we were unsuccessful on the
date of opening of Technical Bid).
The circumstances that complicated our problem was after Technical Bid Opening, no communication was passed on to anyone about the successful bidder. In absence of such communication, does that mean to ask for return BG, there has to be an unsuccessful Bidder? In absence of such information can the government hold the BG beyond the validity period of financial bid, which is not yet opened.
No one in government office were ready to decide because none of them wanted to decide for extension of tender opening dates nor were ready to return BG. None of tenderer wanted to ring bell and make government official to know that they are sleeping on crores of rupees by way of EMD or Bank Guarantee which is causing financial losses to each tenderer.
Who would want to spoil their relationship with government officials?
Does a legal opinion taken to delay decision's or are they been sought to conclude decision?
Are we(Counsel) a medium to provide clarity or are we just a tool to splash a news item of another failure?
I would like readers to ponder around the question, Who is benefited when a decision pending before government is though ministerial for each of us but if looked all together would mean, huge loss of productivity, money and efforts, that went in vain just because there is no automated means to return the EMD back to Tenderer...manual methods are purposely followed to gain advantage of harassment.
This is just one kind of lethargic instances that is caused due to manual process and means adopted by government.
This is just one kind of lethargic instances that is caused due to manual process and means adopted by government.
