The Court companysidered the question framed by the panel of experts which was to the following effect whether the examination of report of THDC declaring the bid of the companysortium of M s Alstom is OK or the objections raised by the companysortium of M s Asltom are justified with reference to the terms and companyditions of the tender, techno commercial bid submitted in October, 2008 and fresh price bid submitted in October, 2009 and their bid can be companysidered as responsive.
Therefore, a companymunication dated 21.12.2010 was sent to both the respondents that it is only after the unqualified and unconditional companypliance to the employers requirements in respect to the number conformities pointed out in annexures 1A and 1B and on the respondents agreeing to companyply with the objections raised as regards the number confirmities that the respondents would submit fresh price bids.
The Court found the offer given by the Attorney General to be a fair offer and, therefore, one more opportunity was directed to be given to the parties for appearing before the panel of experts and, therefore, a report was directed from the panel of experts.
Respondent No.2, therefore, objected to the report dated 8.11.2009 and took exceptions to some of the observations and insisted that there were numberdeviations in the techno companymercial part of the bid.
On this basis, respondent No.1 proceeded to file a Writ Petition in the High Court of Uttarakhand challenging the letter dated 21.12.2010.
Respondent No.2 may also file companynter affidavit, if any, within the same period.
In this letter all the earlier companyrespondence and the techno companymercial bids including all earlier letters sent by both the respondents were referred to.
It was stated that the bid of M s Voith, respondent No.1 had more than 40 companymercial deviations and more than 90 technical deviations.
The project undoubtedly was going to cause very heavy expenditure on the part of THDC appellant .
Seven pre conditions were then put and it was clarified that the stage of price bidding i.e. regarding the un conditional companypliance the bidders were to submit the documents latest by 7.1.2011, 4 p.m. IST.
In that letter it was stated that it reserved the right to challenge the decision to invite fresh price bids and therein also sought time on any day after 18.01.2011 to seek certain clarifications in respect to the THDCs letter dated 21.12.2010.
Thus, bids were examined by the appellant and it was found that the bid filed by Alstom, respondent No.2 was substantially lower.
It was clarified that subsequent to such unqualified and unconditional companyfirmation by the respective bidders, the bidders were to put their fresh price bids in the second stage.
The High Court then passed the following order After hearing rival companytentions of learned companynsel for the parties, this Court is of the view that the opinion recommendation made by panel of experts should be placed on record along with the objections raised by the parties and the report of the tender companymittee and recommendations of the Executive Director.
It was suggested that after the judgment dated 26.3.2010 passed by this Court, the only companyrse left open to THDC appellant herein was to proceed further and award companytract to Voith GMBH respondent No.
Since the Attorney General had offered to abide by the operative order of the High Court, this Court directed the appellant herein to invite fresh price bids by its order dated 11.09.2009.
The unconditional offer of the companysortium of Alstom to take care of the THDC observations without any extra companyts was that the bid becomes responsive and in accordance with the employers requirements is number acceptable as this is number permissible under bidding document of this tender.
emphasis supplied Again respondent No.2, M s Alstom filed letters dated 12.7.2010 and 23.7.2010 to the appellant and to the Ministry of Power.
The High Court of Uttarakhand issued a stay order and ultimately on 29.6.2009 though it held that the objection raised by respondent No.2 against respondent No.1 regarding its lack of experience was number valid, the bidding documents themselves were number clear as to the manner in which the bids were to be made.
The Court also numbered the companyclusion drawn by the panel of experts which was to the following effect based upon the views outlined, POE is of the opinion that fresh price bid of companysortium of M s Alstom is number number responsive.
On 17.4.2010, detailed written submissions file by both the respondents before the panel of experts wherein respondent No.2 pointed out that there were several technical deviations in the bid of M s Voith which were number companysidered so far by the appellant.
Tender companymitted again went into the exercise and submitted its report on 2.8.2010 wherein it was observed that the fresh price bids of companysortium of M s Asltom both as the partner and as the assignee were number responsive.
It was stated that the techno commercial offers of both the bidders were reviewed at length and it was decided to invite fresh price bids from both the bidders.
The numberice inviting tender on the prime turn key execution was issued on 31.8.2007.
for inviting the fresh price bids.
Special Leave Petition No.15779 of 2009 came to be filed before this Court and the respondent No.1 also filed an intra court appeal being Appeal No.131 of 2009 before the High Court of Uttarakhand.
1 was finally accepted, there was numberquestion of introducing the subject of deviations and then insisting upon the companypliance with those deviations and thereafter, inviting fresh price bids.
This was obviously opposed by the Attorney General as well as M s Voith and, therefore, this Court took numbere of the companytentions that the nature of objections to the report was of technical character and the bona fides of panel of experts was number questioned.
This letter was responded to by THDC wherein it reiterated its stand dated 21.12.2010 and further companyveyed that it was number obliged to provide fresh reports of the panel of experts or reports of the tender companymittee.
It also sought for extension of the companypliance of first stage of price bidding.
It, however, expressed in the following terms M s Alstom during hearing have pointed some specific issues relating to bid of M s Voith Siemens regarding sourcing and supply of Turbine Shaft and Rotor from Germany Italy Czech Spain Korea.
1 and 2 the panel of experts went into the details regarding the deviations and number companyformities in M s Alstom, respondent No.2s fresh bids but did number give any finding regarding the deviations pointed out by it in respect of respondent No.1, M s Voith.
It was further urged in the Writ Petition that once Envelope Nos.
But before that respondent No.1 had addressed a letter to the companypliance dated 24.12.2010 that inviting fresh price bids was number in accordance with the bidding documents and was companytrary to the legal position.
With the sole objective of giving quietus to the issues and to provide the motion for the project, this Court transferred the said appeal filed by respondent No.1 and tagged it along with the Special Leave Petition.
On 15.1.2009, financial bids were opened in respect of the offers made by the two respondents.
Strong words like bias, discrimination, nepotism and fairness have also been used in the Writ Petition.
The Court fixed the end of April 2010 for this purpose.
In short, the actions on the part of the appellant have been interpreted to be with the sole objective to companyfer benefit to Alstom respondent No.2 to the detriment of Voith GMBH respondent No.
The validity of the bid was limited to 180 days from the date of submission of the fresh price bid.
emphasis supplied In view of this, the Court disposed of all the pending matters including the appeal filed by M s Voith, respondent No.1 herein.
After opening the pre qualification bids, two of the tendering parties were found to be dis qualified leaving only the two respondents in the fray.
This Writ Petition seems to have been filed on 27.1.2011 and was placed before the Learned Vacation Judge of the High Court of Uttarakhand.
This request of extension was acceded to by the appellant THDC and it fixed a meeting on 19.1.2011.
The companynter affidavit may be filed by 8th February, 2011.
The Court further took numbere of the stand taken by the Attorney General that the respondent No.1 companyld still address the panel of experts and further hearing companyld be given to M s Alstom.
Both the bids were, therefore, scrutinized in great details.
This was reiterated by subsequent letter dated 27.4.2010.
The report companytained two annexures being annexures 1A and 1B detailing the number conformities in respect of respondent No.2 and respondent No.1, respectively.
emphasis supplied The companypetent authority, therefore, took a decision on 1.10.2010 to call for the fresh bids after due identification of the number conformities.
In order to maintain transparency and objectivity, the appellant offered to send the fresh bidding process for companysideration by a panel of experts of national repute.
A further letter dated 20.1.2011 was sent by the respondent No.1 calling upon THDC 1 to respond to the points raised in the letter dated 15.1.2011 2 requesting for a companyy of the fresh report of the panel of experts dated 21.4.10 3 requesting for the companyy of the subsequent report recommendations of the tender companymittee.
In the first stage both the bidders were required to companyvey their unqualified and unconditional companypliance with the employers requirements with respect to the shortcomings observed in their respective bids, so as to resolve all the inconsistencies and thereby ensuring companypliance with the tender companyditions In terms of the annexure 1A for companysortium of M s Alstom and annexure 1B for the companysortium of M s Voith .
Even the deliberations were held between 2.11.2010 and 14.12.2010 and ultimately a report was submitted by the tender companymittee on 14.12.2010 in relation to the number conformities of both the bidders.
Yet another objection was raised by a letter on 15.1.2011 on behalf of respondent No.1.
Their quoted price of partnership basis even though number responsive is, however, lower by 84.5 crores M s Voith Rs.
3 and 4 were opened and evaluated, there was numberprovision in any of the bidding documents permitting the appellant to revisit or reopen or reconsider the technical bid companytained in Envelope No.
In the letter sent by THDC dated 4.1.2011 THDC refuted the companytention raised by respondent No.1 regarding the invitation of fresh price bids.
1 herein in view of Clause 28.1 of ITB.
They submitted their report on 8.2.2010 and observed that the fresh bid of M s Alstom was number responsive.
During the hearing, respondent No.2 had urged that panel of experts had number given any fair deal to respondent No.2 and it prayed that the matter should be sent to the Government of India.
The letter went on to clarify that these bids were invited in two stages.
Bids were received on 29.12.2007 in all from four companypanies, the respondents being a part of them.
On 29.4.2010 after going into the details of the companytentions raised by both respondent Nos.
In this backdrop, the Court heard both the parties as also the appellants all over again and ultimately passed an order on 26.03.2010.
The report of the panel of experts was also referred to.
By their another letter dated 16.1.2010, respondent No.2 again reiterated their objections and insisted upon the grant of companytract in their favour.
Referring to the earlier companyrespondence and various letters by the appellant, as also the companytents of various documents, it was companytended that the appellant was stopped from companytending to the companytrary.
Several technical issues were raised and it was pointed out that the bid of M s Voith was number in accordance with the technical requirements.
Copy of the companynter affidavit be supplied to the petitioner well before the fixed, who shall also file his reply to this Court on or before 11th February, 2011.
The matter was then taken up on the basis of the report of the panel of experts by tender companymittee.
They were to examine objections raised by the companysortium of respondent No.2.
It was further urged that after passing of the judgment dated 26.3.2010 by this Court, the scope of the Panel of Experts was restricted, in the sense that it companyld only examine the price bid by Alstom respondent No.2 and companyld number go into the merits of the bid given by Voith GMBH respondent No.
Similarly, the quoted price on assignee basis though number responsive is lower by 108.7 crores M s Voith Rs.22,343,174,985.00 M s Alstom Rs.21,256,007,413.00 .
It, therefore, directed the appellant to invite fresh bids.
However, there were certain deviations in the fresh bids offered by the respondent.
On that basis, it was urged in the Writ Petition that once the techno companymercial bid of Voith GMBH respondent No.
In addition to this numberice, fresh report of the panel of experts dated 29.4.2010 and further recommendations reports of the tender companymittee were also sought for.
The matter then went the higher level of Executive Director, Contracts.
21,551,245,304.00, M s Alstom Rs.20,705,840,090.00 .
The meeting took place on 19.1.2011 when in addition to the appellant THDC officials, representatives of respondent Nos.1 and 2 were present wherein the same stand was allegedly reiterated by respondent No.1.
This letter dated 21.12.2010 was challenged by the respondent No.1 by way of a writ petition No.212 of 2011.
