VIBHU BAKHRU, J

1. The petitioners have filed the present writ petition challenging, inter alia, the decision of the Border Roads Organisation, respondent no.2 herein (hereinafter referred as the ‘BRO’) in awarding the Letter of Award dated 12.03.2013 (hereinafter referred as the ‘impugned LOA’) in favour of respondent no.3 for the project referred to as Z-Morh tunnel on National Highway No. 1 (Srinagar Sonmarg Gumri Road) in the State of Jammu & Kashmir on Design, Build, Finance, Operate and Transfer Annuity Basis. The petitioners have also impugned the action of the BRO in executing the Concession Agreement with respondent no.5, a company incorporated for the purpose of executing the project (hereinafter referred to as the ‘SPV’).

2. The BRO, is engaged in the development and maintenance of roads and bridges in the border areas of India. The BRO issued a “Request for Qualification”(hereinafter referred to as the ‘RFQ’) on 16.04.2012, inviting pre-qualification proposals from interested bidders/parties for the development, operation and maintenance of the Z-Morh tunnel on National Highway No. 1 (Srinagar Sonmarg Gumri Road) in the State of Jammu & Kashmir (hereinafter referred to as the ‘project’) on Design, Build, Finance, Operate and Transfer Annuity basis through Public-Private Partnership.

3. The petitioners have alleged that respondent no.3 has violated the conditions of the RFQ and thus, was disqualified for being considered for award of the contract for the project. Consequently, it is contended that, the impugned LOA in favour of respondent no.3 and the Concession Agreement between respondent no. 2 and the SPV should be set aside and the petitioner, being the second lowest bidder, should be awarded the contract for the project.

4. As per clause 1.2.1 of RFQ, the BRO adopted a two stage process (collectively referred to as the ‘Bidding Process’) for selection of the bidder for award of the contract for implementing the project. The first stage (the ‘Qualification Stage’) of the process involved screening the applicants/bidders for determining whether the bidders possessed the qualifications, as specified in the RFQ for undertaking the project. All the interested parties, who qualified the Qualification Stage, would be eligible for participation in the second stage of the bidding process (the ‘Bid Stage’) as contemplated in the Request For Proposal (hereinafter referred to as the ‘RFP’).

5. The Project was approved, subject to receipt of approval from the Cabinet Committee on Infrastructure, by the Public Private Partnership Appraisal Committee of the Department of Economic Affairs, Ministry of Finance, Government of India in its 52nd & 53rd meetings held on 10.07.2012 & 16.07.2012. On 14.09.2012, the Cabinet Committee on Infrastructure approved the Project. In the meanwhile, twenty two applicants applied for being considered as qualified for submitting their bids for the project. On 03.08.2012, the BRO announced the list of pre-qualified bidders based on the qualification criteria set out in the RFQ. Seventeen out of the total twenty two applicants, which included the petitioner as well as respondent no. 3 and respondent no. 4, were declared pre-qualified for submission of price bids and participating in the Bid Stage of the bidding process. In August 2012, the BRO issued the RPF for the participation of the bidders who had cleared the Qualification Stage.

6. The petitioner, respondent nos. 3 and respondent no. 4 were amongst the eight bidders, out of seventeen pre-qualified bidders, who submitted their price bids and the same were opened on 16.10.2012. Respondent no.3, who had quoted Rs.234.70 crores as Annuity, was the lowest bidder. Petitioner 3, with a quote of Rs.257 crores, was the second lowest bidder and the respondent no.4 was the third lowest bidder (Rs.267.2 crores).

7. The Petitioner sent a letter dated 04.02.2013 to the BRO for confirming the extension of validity of its bid until March 31, 2013.