JUDGMENT : Mahendar Kumar Goyal, J. 1. This writ petition has been filed assailing the legality and validity of the order dated 11.3.2024 passed by the Chairman, Rajasthan State Food and Civil Supplies Corporation Ltd., Rajasthan-the second appellate authority (for brevity-'the second appellate authority') whereby, while allowing an appeal preferred by the respondent no.1 under the provisions of Rajasthan Transparency in Public Procurement Act, 2012 (for brevity-'the Act of 2012'), the work order given to the petitioner has been cancelled and re-tender procedure is directed to be started. 2. The relevant facts in brief are that the Rajasthan State Food and Civil Supplies Corporation (for brevity'-the Procuring Entity') issued a notice inviting bids dated 27.1.2023 for transportation of foodgrains/sugar from the godowns of the Food Corporation of India to the fair price shops in District Dholpur. It was a two stage bid. The petitioner and the respondent no.1 were the only participants. During the bid process, the Procuring Entity required the petitioner to supply the documents mentioned therein such as, audited balance sheet and profit and loss account with correct UDIN No., turnover and working capital certificate and ITR of financial year 2022-23. Technical analysis comparison chart of both the bidders was uploaded by the Procuring Entity on 1.12.2023 wherein, the petitioner was found “responsive” whereas, the respondent no.1 was found “non-responsive” and was disqualified for the reason that it has submitted the financial undertaking to furnish performance security of 2.5% instead of 5%. The first appeal preferred by the respondent no.1 against its disqualification came to be dismissed by the appellate authority vide order dated 8.1.2024; however, the second appeal preferred by it came to be allowed vide order impugned dated 11.3.2024 in the manner stated hereinabove. Hence, this writ petition assailing the order impugned. 3. It is stated in the writ petition that the second appellate authority erred in failing to appreciate that while, the deficiencies in the bid document of the respondent no.1 amounted to material deviation and were not curable under Rule 61 of the Rajasthan Transparency in Public Procurement Rules, 2013 (for brevity-'the Rules of 2013'), the deficiencies in its bid, i.e., shortfall in the documents submitted along with the bid document, were permitted to be cured by the Procuring Entity under Rule 61(2) of the Rules not being material. It is further stated that the petitioner was granted work order on 18.12.2023 after opening its financial bid on 1.12.2023 and upon having paid the entire security deposit as also the bank guarantee. It is, therefore, prayed that the order impugned dated 11.3.2024 be quashed and it may be permitted to continue with the work. 4. The respondent no.1 has, in its reply to the writ petition, supporting the findings recorded by the second appellate authority, stated that since, it was put to hostile discrimination by the Procuring Entity, its appeal has rightly been allowed as both the bidders should have been afforded level playing field. It is averred that the Procurement Entity committed illegality in permitting only the petitioner to cure the defect in its technical bid which was material in nature. It is further averred that on account of a typographical error in the bid document, the amount of performance security came to be mentioned as 2.5% instead of 5% since in the NITs issued previously, the performance security amount was 2.5%. Dismissal of the writ petition is, therefore, prayed for. 5. The respondents no.2 to 5 in their reply, supporting the order dated 11.3.2024, submitted that the writ petition be dismissed. 6. The petitioner, in its rejoinder to the reply filed by the respondent no.1, averred that the respondent no.1 has tried to mislead by not stating anything about the deletion of the mandatory stipulation in the financial undertaking “or as per RTPP Rules amended time to time” submitted by it along with the bid document. 7. In its rejoinder to the reply by the respondents no.2 to 5, the averments made in the writ petition were reiterated. 8. Reiterating the averments made in the writ petition, the learned senior counsel for the petitioner-Shri N.K. Maloo would contend that the bid evaluation committee required it to submit the documents of the nature envisaged under Rule 61(2) of the Rules of 2013 which provides an opportunity to a bidder to remove the non-material non-conformities in the bid document such as the audited balance sheet and profit and loss account with correct UDIN No., the turnover and working capital and ITR of the financial year 2022-23. He submitted that along with the bid document, although, the petitioner had submitted all these documents; but, on account of an inadvertent and bona fide error, either the financial year came to be mentioned wrong or, the documents of previous financial year came to be submitted, which was rectified as soon as the procuring entity required it to do so. Referring to the scheme of the Rule 59, 60 and 61 of the Rules of 2013, the learned senior counsel submitted that while it is permissible for the bid evaluation committee to require a bidder to remove the non-material deficiencies in the bid document, it is not permissible to get the material deviation/reservation/omission cured. Shri Maloo submitted that the bid document required a bidder to submit the financial undertaking to offer the performance security amount of 5% or as per RTPP Rules amended time to time of the total value of the cost of the quantity for supply; whereas, the respondent no.1 has submitted the undertaking to furnish the performance security amount of 2.5% only that too deleting another important condition “as per RTPP Rules amended time to time.” He submitted that since it tantamount to 'material reservation' within the ambit of Rule 59 of the Rules of 2013, the second appellate authority erred in allowing the appeal preferred by the respondent no.1 on the premise of unequal treatment. 9. Learned senior counsel further submitted that the second appellate authority erred in cancelling the work order and directing re-tender even in absence of any prayer in this regard. He, therefore, prays that the writ petition be allowed and the order impugned dated 11.3.2024 be quashed and set aside. 10. Per contra, learned counsel-Shri Bipin Gupta for the respondent no.1 submitted that the second appellate authority has rightly observed that mentioning of the performance security amount of 2.5% instead of 5% in its financial undertaking was on account of a bona fide typographical error inasmuch as in the previous NIBs, the performance security amount of 2.5% was required to be furnished. He further submitted that the deficiencies in the documents filed by the petitioner were not of the nature as stipulated under Rule 61(2) of the Rules of 2013; rather, completely wrong documents were filed by the petitioner along with its bid document; but, putting the respondent no.1 to hostile discrimination, while, the petitioner was extended an opportunity to cure the incurable defects, it was not afforded any opportunity to remove the typographical error and in view thereof, the second appellate authority did not err in allowing the appeal. 11. Shri Gupta further submitted that had it furnished the performance guarantee security of 2.5% instead of the undertaking only, the matter could have been otherwise. Countering the submission raised by learned senior counsel for the petitioner that the second appellate authority erred in directing cancellation of the work order and re-tender even in absence of a prayer in this regard, learned counsel submitted that since the work order in favour of the petitioner was issued during pendency of the appeal, no prayer could be made for its cancellation. In this regard, inviting attention of the Court towards the provisions of Section 11(2)(a)(ii), (iii) and (3)(e) of the Act of 2012, he further submitted that in the situation stipulated therein including the anti competitive behaviour in the procurement process, the entire tender process could be cancelled. Shri Gupta submitted that in view of rejection of the technical bid of one of the bidders out of only two bidders, since, no scope of competition was left, the second appellate authority rightly cancelled the work order issued in favour of the petitioner. Referring to and relying upon clause- 14D of the tender document, Shri Gupta submitted that if the required documents from the check list are not uploaded, the bid is not to be considered responsive. However, the Procuring Entity acting in violation of this condition, erroneously granted the petitioner an opportunity to remove the material deficiencies in its tender document. He, therefore, prays that the writ petition be dismissed. 12. Shri S.S. Naruka-learned AAG on behalf of the respondents no.2 to 5, supporting the order impugned dated 11.3.2024, adopted the arguments advanced by Shri Bipin Gupta. 13. Heard. Considered. 14. He, therefore, prays that the writ petition be dismissed. 12. Shri S.S. Naruka-learned AAG on behalf of the respondents no.2 to 5, supporting the order impugned dated 11.3.2024, adopted the arguments advanced by Shri Bipin Gupta. 13. Heard. Considered. 14. To better appreciate the controversy, i.e., whose deficiencies were material in terms of the Rules of 2013 so as to declare him non-responsive, it would be profitable to refer the relevant statutory provisions : “59. Determination of responsiveness- (1) The bid evaluation committee shall determine the responsiveness of a bid on the basis of biding documents and the provisions of sub-section (2) of section 7. (2) A responsive bid is one that meets the requirements of the bidding documents without material deviation, reservation, or omission where: - (a) “deviation” is a departure from the requirements specified in the bidding documents; (b) “reservation” is the setting of limiting conditions or withholding from complete acceptance of the requirements specified in the bidding documents; and (c) “Omission” is the failure to submit part or all of the information or documentation required in the bidding documents. (3) A material deviation, reservation, or omission is one that, (a) if accepted, shall:- (i) affect in any substantial way the scope, quality, or performance of the subject matter of procurement specified in the bidding documents; or (ii) limits in any substantial way, inconsistent with the bidding documents, the procuring entity’s rights or the bidder’s obligations under the proposed contract; or (b) if rectified, shall unfairly affect the competitive position of other bidders presenting responsive bids. (4) The bid evaluation committee shall examine the technical aspects of the bid in particular, to confirm that all requirements of bidding document have been met without any material deviation, reservation or omission. (5) The procuring entity shall regard a bid as responsive if it conforms to all requirements set out in the bidding documents, or it contains minor deviations that do not materially alter or depart from the characteristics, terms, conditions and other requirements set out in the bidding documents, or if it contains errors or oversights that can be corrected without touching on the substance of the bid. 60. Clarification of bids.- (1) To assist in the examination, evaluation, comparison and qualification of the bids, the bid evaluation committee may, at its discretion, ask any bidder for a clarification regarding its bid. 60. Clarification of bids.- (1) To assist in the examination, evaluation, comparison and qualification of the bids, the bid evaluation committee may, at its discretion, ask any bidder for a clarification regarding its bid. The committee’s request for clarification and the response of the bidder shall be in writing. (2) Any clarification submitted by a bidder with regard to its bid that is not in response to a request by the committee shall not be considered. (3) No change in the prices or substance of the bid shall be sought, offered, or permitted, except to confirm the correction of arithmetic errors discovered by the committee in the evaluation of the financial bids. (4) No substantive change to qualification information or to a submission, including changes aimed at making an unqualified bidder, qualified or an unresponsive submission, responsive shall be sought, offered or permitted. (5) All communications generated under this rule shall be included in the record of the procurement proceedings. 61. Non-material Non-conformities in bids.- (1) The bid evaluation committee may waive any non-conformities in the bid that do not constitute a material deviation, reservation or omission, the bid shall be deemed to be substantially responsive. (2) The bid evaluation committee may request the bidder to submit the necessary information or document like [audited statement of accounts, PAN, etc.] within a reasonable period of time. Failure of the bidder to comply with the request may result in the rejection of its bid. (3) The bid evaluation committee may rectify non-material non-conformities or omissions on the basis of the information or documentation received from the bidder under sub-rule (2).” 15. Thus, from the scheme of aforesaid Rules, it is apparent that while, minor deficiencies in the bid document may either be ignored or, clarification be sought or the bidder may be required to make up the same; the material deficiencies are not permitted to be cured. 16. Now, if the deficiency in the bid document of the petitioner is considered, as is reflected from the material on record, it has submitted certain documents along with bid document either with the wrong UDIN No. or, of the financial year 2021-22 instead of the financial year 2022-23. Rule 61(2) permits the bid evaluation committee to request the bidder to supply the documents like audited statement of account, PAN etc. Rule 61(2) permits the bid evaluation committee to request the bidder to supply the documents like audited statement of account, PAN etc. Use of the words “like” and “etc.” has to be given due importance and purposive interpretation as envisaged by the legislature while enacting the Rules, i.e., not to oust an otherwise eligible bidder from the zone of consideration only on account of non-submission of the documents not amounting to material deviation/omission under Rule 59(3) of the Rules. This Court is of the considered opinion that the documents required by the Bid Evaluation Committee from the petitioner are covered under Rule 61(2) as has rightly been observed even by the second appellate authority in its order impugned dated 11.3.2024 wherein, it has observed “while it can be considered within interpretation power and discretion of the procuring entity to allow to make up for shortfall of the documents.” Contention of the learned counsel for the respondent no.1 that the audited statement of account under this clause means that only if the un-audited statement of account is submitted, the bidder can be permitted to submit its audited copy, is too specious to merit acceptance. This Court is not persuaded to give such narrow and restricted meaning to the phraseology used under Rule 61(2) of the Rules. In view thereof, this Court has no hesitation in recording a finding that the shortfall in the submitted documents by the petitioner along with its bid document, by their nature, did not constitute material deficiency/omission/reservation. 17. Now, this Court considers whether the respondent no.1 also deserved an opportunity to rectify its shortcoming in the bid document which required it to submit a financial undertaking in terms that it shall furnish the prescribed performance security amount of 5% or as per RTPP Rules amended time to time on the total value of the cost of the quantity for supply. However, in contradiction to it, the respondent no.1 submitted the financial undertaking stating therein that it shall furnish prescribed performance security amount of 2.5% on the total value of the cost of the quality for supply. However, in contradiction to it, the respondent no.1 submitted the financial undertaking stating therein that it shall furnish prescribed performance security amount of 2.5% on the total value of the cost of the quality for supply. There cannot be two opinion on the aspect that submission of the financial undertaking in terms of the bid document is an important aspect affecting the bidder’s obligations under the proposed contract and failure to do so amounts to material reservation in terms of Rule 59 of the Rules of 2013 rendering the bidder unresponsive. Therefore, this Court is satisfied that the promise to furnish the performance security amount of 2.5% instead of 5% and omission of the word “as per RTPP Rules amended time to time” in the financial undertaking submitted by the respondent no.1 amounts to material reservation which could not be permitted to be cured. Submission of the learned counsel for the respondent no.1 that it was on account of a typographical error, is far from convincing. Even otherwise also, no explanation has been offered as to why the material condition of furnishing the prescribed performance security amount “as per RTPP Rules amended time to time” was omitted by it in the financial undertaking. It is neither case of the respondent no.1 that this requirement was totally insignificant nor, it can be assumed to be so in view of the importance attached to it. In view thereof, this Court is satisfied that the bid document submitted by the respondent no.1 suffered from material deficiency which was not curable. Therefore, the second appellate authority erred in putting both the petitioner and the respondent no.1 at equal pedestal and striking down the decision of the Procuring Entity in holding the petitioner responsive and the respondent no.1 non-responsive as unfair and discriminatory. 18. This Court is also not in agreement with the finding of the second appellate authority that under Rule 60, it was obligatory upon the Procuring Entity to have afforded the respondent no.1 an opportunity to clarify its position qua financial undertaking. The Rule 60 of the Rules of 2013 does not give unqualified or unbridled power to the bid evaluation committee to seek clarification qua each and every deficiency in the bid document. This discretion is qualified by the provisions of sub-Rule (3) and sub-Rule (4) of Rule 60. An unqualified bidder cannot be permitted to make changes making it responsive. The Rule 60 of the Rules of 2013 does not give unqualified or unbridled power to the bid evaluation committee to seek clarification qua each and every deficiency in the bid document. This discretion is qualified by the provisions of sub-Rule (3) and sub-Rule (4) of Rule 60. An unqualified bidder cannot be permitted to make changes making it responsive. As already held, the bid document submitted by the respondent no.1 suffered from the material reservation and in view thereof, it could not have been made responsive resorting to provisions of either Rule 59 or of Rule 60 of the Rules. 19. In view of the aforesaid discussion, the writ petition deserves to be allowed. 20. Accordingly, the writ petition is allowed. The order dated 11.3.2024 passed by the second appellate authority is quashed and set aside.