( 1 ) THE respondent No. 2, National Highways Authority of India (NHAI) vide notice dated 20th November, 2006 No. NHAI/cm/mtcs/2006-II invited tenders from established and reliable manufacturers/suppliers for the design, supply, installation, testing, commissioning and maintenance of state-of-the-art Toll collection Systems at toll plazas on National Highway.

( 2 ) AS per clause 2. 7. 1 of the Tender Notice, the bidders were required to submit their proposals along with an application fee of Rs. 5000/- or US$ 125 and an Earnest Money Deposit (hereinafter referred to as "emd") of Rs. 10,000,000/- (Rupees Ten Million only) or US$ 25,0000 in the form of a demand draft/pay order drawn in favour of "national Highways Authority of India" or any scheduled bank payable at New Delhi. It was further stated in the tender document that the EMD could also be in the form of a Bank Guarantee as per clause 3. 2. 2 and the format specified in Section VIII of the document was to be valid for a period of 180 days from 5th January 2007 which was the original date fixed for the opening of the bids. It was also mentioned in the Tender document that a bid submitted without EMD and/or the application fee will be summarily rejected.

( 3 ) THE case set up by the petitioner is as under:

(a) The petitioner Kapsch Metro JV, vide letter dated 4. 1. 2007 participated in the abovementioned tender and submitted its proposal as per clause 2. 12. 3 of the tender document. The petitioner also submitted its application fee of Rs. 5000/- in the form of DD/pay Order No. 679819 drawn in favour of "national Highways Authority of India" Canara Bank, Mayapuri Branch, new Delhi and submitted the EMD of US$ 25,000 in the form of Bank guarantee dated 3rd January, 2007 being Ref. No. 316020164955-HX issued by Standard chartered Bank which was valid for a period of 180 days from 5th January 2007.

(b) As per clause 2. 18 of the tender document, the Bid was to be opened at the NHAI premises but the same was postponed on 4. 1. 2007 afternoon and rescheduled for 22nd January, 2007 (17 days later) without any prior intimation to the individual bidders.

(c) The petitioners accordingly submitted their bid on 22. 01. 2007, as per the rescheduled date of the opening of the bid according to the procedure outlined in the Bid. When the bid of the Petitioner was opened on 22nd January, 2007, the EMD submitted by the Petitioner in the form of the bank guarantee was valid for 180 days for a value of Rs. Ten Million (Two Hundred Fifty Thousand dollar), with effect from the original date of the bid i. e. 5th January, 2007.

(d) The petitioners upon realizing the fact that the bank Guarantee was in effect required to be from the rescheduled date of the opening of the bid, i. e. , 22nd January 2007, and not from 5th January 2007, acted promptly by rectifying the same and thereby furnishing the amended Bank Guarantee dated 1st February, 2007 for a period of 180 days from the revised date of Bid opening and valid upto 21st July, 2007. The amended bank guarantee was sent to the NHAI by the petitioner vide letter dated 4th February, 2007.

(e) The petitioner apprehending rejection of the bid on the ground that the Bank Guarantee was made in conformity only after the opening of the bid despite the fact that the original Bank Guarantee was valid for a period of 180 days with effect from the non-rescheduled date of opening of bid that is 5th january, 2007, made a representation on 12th February, 2007 to the respondent no. 2 indicating the bonafide mistake and informing them about the rectification of the same.

(f) Despite that rectification and amendment of the bank Guarantee the respondent no. 2 issued the impugned letter dated 15th February, 2007 expressing its refusal to process the document (Bank Guarantee) after the opening of the bids on the 22nd January, 2007.

(g) This has led to the present writ petition. The relevant clauses of the Tender document have been reproduced belows: "2. 7 APPLICAT

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