BADAR DURREZ AHMED (ORAL)

1. We have heard the counsel for the parties at length.

2. We are not inclined to pass any interim order in favour of the petitioners. The reasons for the same would be clear from what is stated below.

3. This writ petition has been filed in respect of a tender which was invited by National Thermal Power Corporation (Respondent No.2) for the supply and installation of 11 Steam Turbine Generator (STG) Packages for its various Super

Thermal Power Projects.

4. The bids were invited in two sequential stages. The first stage was that of the Techno-Commercial Bid and the second stage involved the Price Bid.

5. The bids were to be submitted, as aforesaid, in sequence. Only those parties which cleared stage-I would be entitled to submit their price bids in stage-II.

6. The petitioner is aggrieved by the fact that it has not been allowed to continue to the second stage by virtue of the impugned letter dated 18.08.2010. In the said letter, it has been stated that the petitioner's bid was rejected on the ground of it being non-responsive in terms of clause 21 of the Instruction To Bidders (ITB) read along with item no. 4.0 of the Bid Data Sheet (BDS), Section-III. In view of the said rejection, the Bank Guarantee (BG) submitted by the petitioner towards Bid Security was returned in original.

7. Essentially the petitioner's bid has been rejected on the ground that the Deed of Joint Undertaking (DJU) which was required to be submitted by the bidders was not in conformity with the format prescribed under the bid documents. It is the contention of the learned counsel for the petitioner that while the Deed of Joint Undertaking (DJU) which had been submitted along with the Techno-Commercial

Bid did not comply with the format as prescribed under the bid documents, this deficiency was subsequently corrected and the revised DJU was furnished in June, 2010, which was exactly in terms of the format prescribed under the bid documents.

8. Mr Mukul Rohatgi, senior advocate, the learned counsel for the petitioner drew our attention to several clauses of the Instructions To Bidders (ITB), and in particular, he referred to clauses 20, 21, 22, 23 and 24. The said clauses read as under:-

Clause No. INSTRUCTIONS TO BIDDERS (ITB)

20. 20.1 21. 21.1 21.2 Clarification of Bids During bid evaluation, the Employer may, at its discretion, ask the Bidder for a clarification of its bid. The request for clarification and the response shall be in writing, and no change in the price or substance of the bid shall be sought, offered or permitted. Preliminary Examination of Stage-I (Techno-Commercial) Bid: The Employer will examine the bids to determine whether they are complete, whether required securities have been furnished, whether the documents have been properly signed and whether the bids are generally in order. Prior to the detailed evaluation, the Employer will determine whether each bid is generally complete, acceptable and is substantially responsive to the bidding documents. For purposes of this determination, a substantially responsive bid is one that conforms to all the terms, conditions and specifications of the bidding documents without material deviations, objections, conditionalities or reservations. A material deviation, objection, conditionality or reservation is one (i) that affects in any substantial way the scope, quality or performance of the contract; (ii) that limits in any substantial way, inconsistent with the bidding documents, the Employer's rights or the successful Bidder's

21.3 21.4 22.0 22.1 obligations under the contract; or (iii) whose rectification would unfairly affect the competitive position of other Bidders who are presenting substantially responsive bids. Critical Provisions No deviation, whatsoever, is permitted by the Employer to the provisions relating to following clauses. (a) Governing Laws (Clause 5 of GCC, Section IV). (b) Settle