By a separate companymunication dated 6th October, 2010 the appellant companypany companyveyed to RDS the reasons for rejection of its tender.
Recommendation received from GAIL numberwithstanding the appellant company appears to have expressed apprehensions about the capability of RDS to companyplete the project in time having regard to the fact that RDS had taken three years to companyplete a breakwater with a length of mere 500 meters whereas the appellant companys breakwater project stretched over a length of 1800 meters and had to be companypleted within a period of 33 months only.
The report of the CAG was forwarded by the appellant to GAIL with the request to arrange companyies of work order, and satisfactory evidence of the credentials of RDS.
A further development in the meantime took place in the form of the CAG forwarding a report in which certain adverse observations regarding the companypletion of the breakwater at chainage 22M to chainage 200 M in the Andaman and Nicobar Project were made.
A resolution was accordingly passed by the Board of Directors of the appellant companypany on 4th October, 2010, whereby it decided to annul the Breakwater tender in exercise of its power under Clause 28.1 of the Bidding Document on the ground that RDS did number qualify the BQC criteria which fact had, according to the appellant, companye to light only after the opening of the price bids.
Reservations about the viability of the rates quoted by RDS which were found to be abnormally low were also expressed.
Clause 8.1.1.1 of the Tender document was in the following words The bidder shall have experience of having successfully companypleted, as a single bidder or as a lead of a Consortium Joint Venture, at least one project of a breakwater in an offshore location as defined at Clause No.8.1.2.5 below of minimum length of 400m during the last 20 twenty years to be reckoned from the last date of submission of bids.
The appellant company also sought the details about the companytracts to verify the companyrectness of the certificates submitted by RDS along with its bid in response to the tender numberice.
Suffice it to say that the maintainability of Writ Petition No.534 of 2011 filed by RDS out of which the appeal arises was assailed by the appellant herein on the ground that the earlier petition filed by it having been withdrawn the second petition filed by RDS was number according to the appellant maintainable insofar as the same sought to question the validity of the decision taken by the Board of Directors on 4th October, 2010 cancelling the tender process and the companymunication of the said decision with reasons for rejection of the bid submitted by RDS on 6th October, 2010.
Questions regarding validity of certificates submitted by RDS were also raised in the writ petition.
Ltd., the appellant in this appeal, for short referred to as RGPPL.
In response to the numberice inviting tenders, EIL received five tenders from five different entities viz.
With the annulment of the entire tender process Writ Petition No.2142 of 2010 filed by Hung Hua Ranjit Buildcon Ltd. inter alia challenging the acceptance of the technical bid submitted by RDS was dismissed as withdrawn by the High Court in terms of order dated 30th November, 2010.
It also enclosed along with its tender, companypletion certificate dated 5th April, 2008 issued by Deputy Chief Engineer IV, Andaman Harbour Works under the Ministry of Shipping, Road Transport and Highway, Government of India certifying that RDS had companypleted breakwater of 500 meters against a tender dated 26th May, 1999.
GAIL accordingly recommended RDS to the appellant company for award of the companytract.
In response to the above writ petition filed by Hung Hua, the appellant companypany filed a short affidavit in which it disputed the averments made in the writ petition and took the stand that the documents filed by RDS along with its bid showed that breakwater at Mus in Car Nicobar Island was built at an offshore location and that RDS had companypleted the entire work as a single entity on behalf of M s Ellen Hinengo Ltd. While the writ petition filed by Hung Hua was pending before the High Court, the appellant sought from GAIL the work order issued to RDS in respect of the qualifying project at Car Nicobar to verify the credentials of the RDS.
Completion certificate dated 30th June, 2003 issued by the Senior Executive Manager of Ellen Hinengo Ltd. a Tribal Society EHL and letter dated 10th November, 2000 addressed by the said Ellen Hinengo Ltd. to RDS asking it to companymence work for companystruction of breakwater at Mus in Car Nicobar Island pursuant to tender dated 3rd November, 2000 were also produced by RDS apart from a certificate issued by EHL about the offshore location of the breakwater.
RDS the respondent in this appeal, M s ESSAR Construction Ltd., M s Afcons Infrastructure Ltd., joint venture of M s Higgard Punj Lloyd Ltd. and joint venture of M s Hung Hua Ranjit Buildcon Ltd. With the tender submitted by it RDS enclosed the requisite documents such as Form B in which details of specific work experience, on the basis whereof it claimed to be satisfying the Bid Qualification Criteria BQC for short , were also given.
The appellant RGPPL is charged with the duty of companypleting the balance work at LNG Terminal of the Dabhol Power project and of companymissioning and operating the same.
In terms of an international companypetitive bidding numberice, issued by it on 26th June, 2009, EIL invited tenders from eligible parties for companypletion of, what is called Breakwater at LNG Terminal at RGPPL site, Dabhol, Maharashtra.
GAIL was also informed that in the absence of satisfactory evidence furnished by RDS, the appellant was number in a position to place the matter for award of companytract before the Board of Directors.
Apart from stipulating other terms and companyditions, Clause 8.1.1.1 of the tender required that Single Bidders responding to the invitation should have experience of successfully companypleting as a single bidder or as a lead of a Consortium Joint Venture, at least one project of a breakwater in an offshore location with a minimum length of 400 meters.
Tenders received from different parties were techno companymercially evaluated by EIL all of whom were found to be technically qualified except Hung Hua Ranjit Buildcon Ltd. who went out of the reckoning at that stage itself.
The companystruction of the breakwater was left incomplete by a previously employed companytractor appointed for the purpose on account of the stoppage of the work by the Dabhol Power Company.
In Writ Petition C No.8252 of 2010 which was filed by RDS to challenge the annulment of the tender process and the rejection of its techno companymercial bid as number responsive a similar order was made by which the writ petition was dismissed as withdrawn reserving liberty to the respondent RDS to take recourse to seek redress in accordance with law if it was excluded from companysideration in the fresh tender which RGPPL had decided to issue.
The High Court has in the judgment under appeal rejected that companytention and number only held that the writ petition filed by RDS was maintainable but also that the decision to reject the tender submitted by it was number legally valid number was the annulment of the entire tender process.
That order came to be passed on an application filed by the appellant RGPPL stating that the entire tender process having been scrapped with a decision to invite fresh tenders Writ Petition No.2142 of 2010 did number survive for companysideration.
The appellant has, for that purpose, engaged GAIL as its Engineer who has in turn appointed Engineers India Limited EIL as their Primary Project Management Consultant.
The High Court took numbere of the subsequent events and dismissed the writ petition as number pressed in view of the fact that the tender process had been scrapped and a decision to invite fresh tenders had been taken.
From the minutes of the meeting of the Board of Directors it is further evident that the Board had taken numbere of the CVC guidelines and declined to award the companytract to the next lowest tenderer in view of the huge price difference between L1 L2 and opted to go for fresh tenders.
While a final decision regarding award of the companytract had yet to be taken, Hung Hua Ranjit Buildcon Ltd. who was one of the bidders and whose bid was number found to be techno commercially qualified, filed a writ petition in the Delhi High Court, inter alia, alleging that while they had been wrongly disqualified, RDS who did number satisfy the qualifying criteria had been wrongly held to be qualified.
While companyrespondence between RGPPL, GAIL and EIL was being exchanged on the subject the appellant received certain documents under RTI Act including the work order placed by Andaman Harbour Works on EHL and those placed on M s Recon International for a part of the Andaman Project for chainage 22 200 meters.
The CAG found that due to delay in the companystruction of a portion of the breakwater companypled with number compliance of companytractual terms, the department had suffered a loss of Rs.2.61 crores, apart from increase in companyt of the work by Rs.3.55 crores.
Scott Wilson a U.K. based entity was also kept in the loop as a backup companysultant for marine works.
RDS was accordingly asked by EIL to produce the documents in support of its qualification such as the work order for the Andaman Harbour works.
S. THAKUR, J. Leave granted.
There is companysiderable merit in the submission made by the learned companynsel for the appellants and Ms. Jai Singh.
These appeals arise out of a companymon judgment and order dated 17th October, 2011 passed by the High Court of Delhi whereby Writ Petition C No.534 of 2011 filed by the respondent has been allowed and the rejection of the tender submitted by it quashed with a mandamus to the appellant companypany to take a fresh decision on the subject in the light of the observations made by the High Court.
Names of only four bidders found techno companymercially eligible were recommended by EIL for the approval of GAIL the owners engineer.
The factual matrix leading to the filing of the writ petition by RDS Project Ltd. hereinafter referred to as RDS for short has been set out at companysiderable length in the order passed by the High Court.
The price bids of the four bidders were pursuant to the said recommendation opened on 11th February, 2010 in which RDS was found to be the lowest bidder having quoted a price of Rs.390 crores only, which was less than the estimated companyt of the project by Rs.160 crores.
The earlier companytractor had, according to the appellant, companystructed only 500 meters of breakwater length leaving the balance of nearly 1800 meters incomplete and a certain length thereof untouched.
