Tender forfeiture was unsustainable where corrigendum removed GST condition and no tender term was breached.

A tender forfeiture was held unsustainable where the bidder had participated and succeeded under an original condition requiring GST to be paid separately, and a later corrigendum withdrew that condition. On the facts recorded, the bidder had not breached any tender term, so forfeiture of the earnest money deposit was arbitrary and discriminatory. The deposit was therefore refundable.

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Issues: Whether the respondent was justified in forfeiting the petitioner's earnest money deposit after issuing a corrigendum withdrawing the original tender condition providing for separate GST payment on the contract amount, and whether the petitioner was entitled to refund of the deposit.

Analysis: The original tender condition required GST to be paid separately, and the petitioner participated in the tender process and emerged successful on that basis. The subsequent corrigendum withdrew that condition, yet the petitioner's earnest money deposit was forfeited on the allegation of non-performance. On the facts recorded, the petitioner had not violated any term of the tender notification, and the forfeiture was found to be arbitrary and discriminatory.

Conclusion: The forfeiture of the petitioner's earnest money deposit was unsustainable, and the petitioner was entitled to refund of the deposited amount.

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