The petitioner, which is a consortium of two companies, viz., M/s. EFKON AG of Austria and M/s. EFKON India Private Limited, filed the present Writ Petition feeling aggrieved by the communication of the respondent vide letter No. CGM (T)/HGCL/DGM(T)-II/602/2006-07 dated 22-8-2011 whereby it was informed that the technical bid submitted by the former is non-responsive.

The background facts leading to the filing of the present Writ Petition are summarized hereunder:

The respondent has received financial aid to a tune of 42027 Million Yen from the Japan International Corporation Agency (JICA) towards cost of Hyderabad Outer Ring Road project. As part of this project, the respondent has issued bid notice No.CGM(T)/HGCL/2/2009-10 dated 22-3-2010 inviting pre-qualification tenders for design, supply, installation, commissioning, testing and warranty, maintenance for equipments of Toll Collection System and related facilities for Outer Ring Road to Hyderabad City in the State of Andhra Pradesh, India under Phase-2 program. The bidding consists of three stages i.e., (i) pre-qualification and short-listing, (ii) technical bid and (iii) price bid. The petitioner and nine other bidders have submitted their pre-qualification bids in response to the said notice. After opening the pre-qualification tenders, six companies were short-listed for submission of technical bids and accordingly bid notice No.ORR/JICA2/TMS/10-11 on 5-10-2010 was issued for submission of technical bids. In response thereto, the petitioner submitted its technical bid. After opening the technical bids and in the course of analysis thereof, the respondent addressed letter dated 26-4-2011 to the petitioner wherein it has raised as many as 69 queries. The petitioner submitted its clarifications to all those queries on 16-5-2011 supported by documentary evidence. The respondent issued letter No.CGM(T)/HGCL/DGM(T)-II/602/2006-07, dated 22-8-2011 informing therein that the petitioner’s bid, on evaluation, is determined as non-responsive as per Clause 28 of the Instructions to Tenderers (ITT). This communication is questioned in this Writ Petition.

A detailed counter-affidavit is filed by the Managing Director of the respondent. The relevant averments of the counter-affidavit are as under:

The evaluation of the technical bids was placed before the Technical Evaluation Committee constituted by the Government of Andhra Pradesh vide G.O.Ms.No.313, Municipal Administration, dated 23-4-2008. The terms of reference to the Technical Evaluation Committee as per the said G.O.are: (i) to discuss and deliberate on various issues related to the project and to arrive at unanimous opinion; (ii) to evaluate the bids (received on ICB route), seek clarifications, if any, from the bidders/consultants, determine whether the bids are substantially responsive without material deviation, reservation or omission etc.; (iii) to determine and recommend the lowest evaluated bids in respect of Civil Works Contractors/Consultants to the High Level Committee for approval; and (iv) to attend the Technical Evaluation Committee meetings as and when convened in view of the importance of Outer Ring Road project; that the Technical Evaluation Committee was requested during the meeting held on 27-6-2011 to examine the 32 unsatisfactory clarifications given by the petitioner along with two major and one minor deviations and consider whether the unsatisfactory clarifications are critical or they may be ignored or those deviations can be rectified at the stage of design approval; that upon deliberations, the Members of the Technical Evaluation Committee recommended to reject the petitioner’s bid as not responsive to the tender conditions and a decision was accordingly taken and informed to the petitioner by the respondent; that Clause 28.4 of the ITT provides for waiver of minor infirmity, but in the present case, there are two major and one minor deviations and that the following are the deviations: