Judgment:-

S.H. Kapadia, J.

Leave granted.

2. A short question which arises for determination in these civil appeals is -whether the decision of the Bid Evaluation Committee ("EC" for short) dated 6.5.2008 rejecting the Bid Proposal made by the Consortium led by M/s Zoom Developers Pvt. Ltd. as non-admissible in terms of RFP and thus excluding the said Consortium from the zone of consideration was unjustified, arbitrary and bad in law, as held by the impugned judgment of the Kerala High Court dated 4.12.2008 in Writ Appeal No. 1460/2008.

Facts:

3. Government of Kerala (GoK) vide G.O. No. 9/07/F&PD dated 9.3.2007 decided to invite bids for the Development of International Deepwater Seaport and Container Transshipment Terminal at Vizhinjam under Public-Private Partnership. Vide G.O. dated 15.6.2007 GoK decided on the key provisions in the Request For Proposal ("RFP" for short) documents for the bidding of the above Project. A competitive bid process was thus initiated by M/s Vizhinjam International Seaport Ltd. ("VSL" for short). VSL was the Sponsor. IL & FS Infrastructure Development Corporation ("IDC" for short) was the Project Advisor. Accordingly, on 8.8.2007, Press Notification was issued by M/s VSL inviting RFP for the development of the Project. On 23.1.2008 a Bid Opening Committee was constituted vide G.O. of the same date. Thirty-three firms obtained the RFP documents. Vide G.O. dated 19.2.2008, Bid Evaluation Committee headed by the Chief Secretary was also constituted to Evaluate the Bid Proposals. Ultimately, bids were received from the following five Consortia by 31.1.2008 (which was the last date stipulated for receiving the Bids), they were:

(i) Apollo Enterprises led consortium

(ii) Nagarjuna Construction Co. led consortium

(iii) Videocon Industries Ltd. led consortium

(iv) Lanco Kondapalli Power Pvt. Ltd., Hyderabad, led consortium

(v) Zoom Developers Pvt. Ltd., Mumbai led consortium.

4. The bidders were required to submit their proposals in four covers, namely, the Outer Cover (containing details of the bidder, power of attorney in favour of the lead member, consortium agreement entered amongst the members of the consortium, legal opinion, security of Rs. 50 million in the form of bank guarantee etc.), Cover-1 (Statement of Qualification), Cover-2 (Technical Proposal) and Cover-3 (Financial Proposal). In this case, evaluation was done in three stages. In the first stage, there was evaluation of Outer Cover and Cover-1 to check the admissibility of bids and evaluation of qualifications as stipulated in the RFP. It may be noted that evaluation of the Technical Proposal had to be done only of those bidders who met the "Qualification Criteria" (vide second stage). The third stage contemplated evaluation of the Technical Proposal. As stated above, only five bids were received. These bids (Outer Cover and Cover-1) were opened on 31.1.2008 by the Bid Opening Committee. The said firms were found to have satisfied prima facie the requisite requirements. The bids were accepted by the Bid Opening Committee for further scrutiny. The bids submitted were considered at the meeting of the EC on 25.2.2008. In the said meeting it was observed that, with regard to the bid submitted by the consortium led by M/s Zoom Developers Pvt. Ltd. ("ZDL" for short), the Power of Attorney and the Consortium Agreement were unstamped and they needed to be stamped. It was further pointed out by the EC that the lead member in terms of the RFP, namely, M/s ZDL was required to hold a minimum equity of 26% in the Special Purpose Company ("SPC" for short), which has not been expressly mentioned in the Consortium Agreement. The EC further pointed out to M/s ZDL that one of the consortium member, namely, M/s Portia Management Services Ltd. ("PMS" for short) had signed the consortium agreement on behalf of Peel Ports Ltd. ("PPL" for short) but M/s PPL is not a member of the consortium. Additional information regarding the financials of M/s PMS (on its own