The main contention of the writ petitioners in the instant writ petition is that the petitioner No. 2–NICCO Corporation Ltd. although fulfilled the eligibility criteria and is eligible to participate in the price bid, has not been allowed to participate at the stage of price bid. The petitioner, although eligible has been wrongfully excluded by the respondents from participating at the final stage, viz. Consideration of the price bid but the petitioners' price bid has been taken into consideration by the respondents and found to be the lowest. The respondent has utilised the price bid of the writ petitioner to bring down the price bid of the next lowest tenderer.

2. The work under the tender is for setting up of a Kerosene Recovery process Unit, being a part of an ONGC project at Hazira.

3. Engineers India Ltd. (EIL) were appointed by ONGC as consultants. EIL had an independent status as advisers to ONGC.

4. In ONGC, the preliminary considerations were entrusted to a Tender committee. The final decision in ONGC was however taken by a Steering committee presided over by the Chairman.

5. The newspaper publication inviting bids set out only two paragraphs from the Bid Evaluation Criteria. The full BEC was available to all bidders as part of the tender documents which they purchased.

6. The Original Clause 1. 5. 2 was as follows :–

"1. 5. 2. Main Bidder or leader of the joint venture/consortium should have minimum experience in execution of at least one hydrocarbon processing plant in the field of petroleum or refinery or gas processing plant or petrochemicals or fertilized plant and should have completed at least a single contract of value not less than Rs. 8 crores during the last seven years and should accept total responsibility for the total score of work including project management......... "

7. The BEC was amended on the 23rd May, 1991 so as to increase scope for competition and a corrigendum was published in newspapers on the 4th June, 1991. The BEC as finally amended is set out as follows :–

"The first sentence starting from "Main bidder or leader of the joint venture - - - - -including project management shall be replaced by :

In case of Joint Venture/Consortium Bids, one of the participants should have experience in execution of at least one Hydrocarbon processing plant in the field of Petroleum or Refinery or Gas processing Plant or petrochemicals or Fertiliser Plant and Leader should have completed at least a single contract value not less than Rs. 8 crores during the last 7 years and the Leader should accept total responsibility for the total scope of work including Project Management.

The above Corrigendum was issued to all the agencies who purchased the tender document as on that date."

8. The bids were submitted on or before 19.8.91. The price part of the bid were submitted separately on the same day.

Bidders could be either single or joint venture/consortium NICCO submitted the bid claiming to be a joint venture/consortium with Toyo Engineering India Ltd. (TEIL) of which NICCO CLAIMED to be the leader.

10. NICCO in their bid stated as follows :–

"Please note that this subject tender being submitted by NICCO as prime bidder who is totally responsible for total scope of work including project management and fulfil BEC requirement of successful completion of at least one Single contract value of not less than Rs. 8.0 Crores. Moreover as per requirement of BEC criteria and Addendum No.1 of NIT, we have nominated M/s. TOYO Engineering India Ltd. as our sub-contractors who possess requisite experience in execution of Hydrocarbon processing plant."

(Vide Tender Committee review minutes dated 27.1.93).

(hereinafter referred to as MOU)

5. A Memorandum of Understanding between NICCO and TEIL dated 29/31 July, 1991 was submitted. The said MOU described TEIL as the nominated contractor of NICCO and TEIL. It has been submitted by learned Solicitor General on behalf of ONGC that TEIL did not undertake the responsibility of constructio