A typographical error in a Power of Attorney, when duly signed, accepted, and notarized, does not render a bid non-responsive and cannot lead to the forfeiture of the bid security.

VIBHU BAKHRU, J.

1. The petitioner is a consortium comprising of two companies-M/s Atlanta Ltd. and M/s PBA Infrastructure Ltd. The petitioner has filed the present petition, inter alia, praying as under:-

“(i) to issue a writ of certiorari thereby quashing the letter No. NHAI/BOT/11019/02/05/07/335 dated 14.9.2010;

(ii) to issue a writ of prohibition restraining respondent No. 1 from invoking/partially invoking the bid security provided by the petitioner in the nature of form of bank guarantees bearing No. 0505010BG0002405 and BG-162-10 issued by respondents No. 3 & 4 respectively;

(iii) that pending the hearing and final disposal of the petition, this Hon’ble Court be pleased to issue an order and injunction restraining respondents No. 3 & 4 from honouring any invocation or enforcement of the bank guarantees 0505010BG0002405 and BG-162-10,by the respondent No. 1;

(iv) that pending the hearing and final disposal of the petition, this Hon’ble Court be pleased to pass an order restraining respondent No. 1 from invoking the bid security in the nature of bank guarantees 0505010BG0002405 and BG-162-10;

(v) for ad-interim reliefs in terms of prayers (iii) & (iv) above,”

2. Respondent no.1 (hereafter 'NHAI') had invited tenders for the work of four-laning of the Jetpur–Somnath Section of N.H. 8–D from Km 0.000 to Km 127.600 in the State of Gujarat under NHDP, Phase III to be executed as BOT (TOLL) on Design, Build, Finance, Operate and Transfer (DBFOT) basis (hereafter 'the Project'). On 22.12.2009, NHAI invited Requests for Qualification (RFQ) to shortlist the applicants for the aforesaid project. The petitioner submitted its RFQ on 09.02.2010. The petitioner states that certain clarifications were sought from the petitioner, which were duly responded to and on 21.06.2010, the petitioner was declared as pre-qualified to submit its bid for the project.

3. The petitioner states that, thereafter, the petitioner was issued RFP documents (Request for Proposal) on payment of approximately Rs. 2,00,000/-. And, on 09.08.2010, the petitioner submitted its bid along with the requisite enclosures as mentioned in the bid document. The petitioner also furnished a bid security in the form of a bank guarantee in the sum of Rs. 8,28,00,000/-.

4. In terms of RFP documents, the petitioner also submitted the necessary Power of Attorneys (hereafter ‘POAs’). M/s Atlanta Ltd (the lead member of the consortium) issued a POA in favour of Sh. Ulhaas N. Bhole to act on its behalf. The said POA was signed by the Managing Director of M/s Atlanta Ltd. The certified copy of the Board Resolution was also enclosed. Similarly, POA executed on behalf of PBA Infrastructure Ltd. authorising Mr Vishal Wadhawan, was also filed along with bid documents. In case of M/s Atlanta, the POA dated 28.07.2010 was notarized on 06.08.2010 and the POA issued by M/s PBA Infrastructure Ltd. was dated 27.07.2010 and was not-arised on 28.07.2010.

5. According to the petitioner, the POAs were typed earlier but were executed and not-arised on the dates as endorsed by the notaries. The petitioner, accordingly, furnished letters of the concerned notaries conforming that the POAs were executed before them.

6. The petitioner received a letter dated 14.09.2010 (which is impugned in the present petition), communicating that the petitioner's bid had not met the test of responsiveness, inter alia, for the reason that POAs for signing the bids were dated prior to the date of attestation. In case of PBA Infrastructure Ltd., the common seal of the company had also not been affixed.

7. Mr Shroff, learned counsel appearing for the petitioner contended that the POAs were valid and had been executed before the respective notaries and the same had been confirmed by them. Since the text of the POA was printed earlier, a prior date was typed and that was an inadvertent error. He submitted that since there was no deviation from the RFP terms, the petitioner's bid could not be termed as non-responsive and NHAI