JUDGMENT

Sujata V.Manohar, J.

(1) THE Maharashtra State Electricity Board, the c appellant in Civil No. 4893 of 1998 floated a tender dated 20-12- 1997 for design, engineering, manufacture, supply, erection and commissioning of large diameter pipes and steel tanks with all accessories and auxiliaries as prescribed in the bid documents for Units 3 and 4 of Khaperkheda Thermal Power Station, Maharashtra, each unit being of 210 d MW. The qualifying requirements of bidders as specified in the tender were, that the bidder should have designed, fabricated/manufactured, supplied, erected and successfully commissioned large diameter piping system comprising the supply of MS pipes not less than 2000 mm diameter and laid/buried for a minimum total length of 3 kms in a thermal power station and the same should be in successful operation for the past two years as reckoned on the date set for opening of the bid. Further, the bidder should have a minimum turnover of Rs 7.5 crores per annum for the last 3 consecutive years.

(2) UNDER clause 1.4 of the qualifying criteria, it was provided:

"NOTWITHSTANDING anything stated above, the owner reserves the right to assess the bidders capability and capacity to perform, should the circumstances warrant such an assessment in the overall interest of the owner."

Pursuant to the invitation, the appellant-Maharashtra State Electricity Board received tenders from eleven bidders including M/s I.V.R.Construction Ltd. and M/s Raunaq International Ltd., who are the two contestants before us. After screening of the bids, a note was submitted by the Technical Director of the Maharashtra State Electricity Board for the consideration of the Board of Directors. The note stated that out of the offers received, four offers were from tenderers who qualified as per the qualifying criteria. M/s I.V.R. Construction Ltd., Hyderabad was stated to be one of the four such offerers. The note also mentioned that two offerers which included M/s Raunaq International Ltd., though not meeting the qualifying requirements, had done CW piping for 210 MW units. M/s I.V.R.Construction Ltd. were (Sujata V.Manohar, J.) recommended by the Technical Director for the placement of the ordeR.The a said Company, however, fell short of the requisite experience by one year. The note also stated that the offer of M/s Raunaq International Ltd. was the most competitive, being Rs 43,28,316.00 less than the price quoted by M/s I.V.R.Construction Ltd.

(3) IN this connection, it is pointed out by the Maharashtra State Electricity Board that M/s Raunaq International Ltd. have designed, fabricated and commissioned MS pipes of 2000 mm diameter buried underground, but for a distance less than 3 kms. They also have the requisite experience of doing such work for thermal power units of 210 MW. They have more than 2 years experience in this work.

(4) THE Board of Directors of the Maharashtra State Electricity Board, at its meeting held on 29/6/1998, after considering the note submitted by the Technical Director, decided to accept the offer of M/s Raunaq International Ltd. in view of the price advantage to the Board and adequate experience of M/s Raunaq International Ltd. of having completed similar type of work for 210 MW units. The offer of M/s Raunaq International Ltd. was accordingly accepted and the tender was awarded to it.

(5) M/S I.V.R.Construction Ltd. challenged the decision of the Board in a writ petition filed in the High court of Bombay. The High court has passed the impugned interim order under which the High court stayed the operation of the letter of intent dated 20/7/1998 issued to M/s Raunaq International Ltd. Hence the present appeal.

(6) IN these proceedings, the Maharashtra State Electricity Board has filed an affidavit of its Technical DirectoR.It is stated in this affidavit that the offer of M/s Raunaq International Ltd. was accepted on account of the price advantage to the Boa