The main legal point established is the authority of the World Bank and monitoring agencies in setting eligibility criteria for projects, as well as the principles of fairness, non-arbitrariness, and public interest in the tender process.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The petitioner no.1 is a joint venture of two companies. It allegedly intended to participate in a tender dated August 2, 2018 for a contract to design and build sewage treatment plant and allied works in connection with the National Mission for Clean Ganga (NMCG) project. The project was conceived and is being implemented nationwide, primarily with the funding of the World Bank.

2. The tender was a two-tier process, contemplating a prior technical bid and subsequent financial bid, to happen consecutively.

3. Prior to the technical bid being opened, the petitioner wrote to the respondents on September 29, 2020 (annexed at page-137 of the writ petition) requesting an amendment of the Minimum Qualifying Criteria (MQC) of the tender so that maximum number of bidders can participate in the bidding and for healthy competition. Such proposed amendment pertained primarily to the distance which was to be covered in the previous works of the bidders for the purpose of the pre-requisite past experience regarding similar projects.

4. The petitioner made several communications to the respondents on this count, indicating on November 27, 2020 (page-142 of the writ petition) that the said NIT condition, which appeared in Addendum 2 dated December 26, 2019 and was reiterated by the authorities vide Addendum No.4 dated November 26, 2020, would allow only a single bidder to qualify on much higher prices than the estimated price, leading to loss of financial resources of the country and precluding fair competition, maximum participation and transparency in the tender process.

5. The petitioner relies on an e-mail communication from the respondents' end dated November 8, 2020 (annexed at page-145 of the writ petition), by which the respondents acknowledged the verbal requests and letters from the petitioner and assured the petitioner that the relaxations in PQ as sought by the petitioner in its letter dated September 29, 2020 might be considered during the opening of technical bid of the project. It was further indicated in the e-mail that the relaxations might be considered based on legitimate practical grounds regarding the said PQ points and for more competitive bidding.

6. However, in utter disregard of their assurance, the respondentauthorities proceeded to open the technical bid on December 10, 2020 without consideration of the petitioner's request for modification of the conditions. As such, the petitioner has preferred the present writ petition seeking cancellation of the concerned tender dated August 2, 2018 and for ancillary reliefs.

7. Learned senior counsel appearing for the petitioner submits that the petitioner had no scope of participating in the tender, since the technical pre-conditions of the NIT were never amended. It is submitted that such condition was tailor-made in favour of the respondent no.5, which was the only successful bidder in the technical bid. It is argued that such a situation was foretold by the petitioner in its previous communications, clearly indicating in its correspondence that refusal to modify the condition would tantamount to awarding the project to a single bidder, which was against all norms of inclusiveness and impartiality governing public tenders.

8. That apart, it is submitted that the respondent no.5 was blacklisted by the UP Jal Nigam Limited at Gaziabad, where respondent no.5 is based, for which the Government had registered a case under Section 304 of the Indian Penal Code and other relevant provisions of law, apart from blacklisting the respondent no.4. Learned senior counsel relies on the annexure at page-3 of the supplementary affidavit filed by the petitioner in connection with the writ petition on this score. By placing reliance on page-4 of the supplementary affidavit, it is urged that even the Bihar Urban Infrastructure Development Corporation, Patna had raised serious allegations against respondent no.5, which resulted in respondent no.5 being bla