The court emphasized the importance of fulfilling tender eligibility conditions as specified in the NHAI Act and upheld NHAI's decision to reject the bids based on non-compliance with the specified conditions.

S. RAVINDRA BHAT, J.

1. The petitioner (hereafter referred to as “Mohandas”) is aggrieved that its bid in response to the Notice Inviting Tender ("NIT") inviting two separate bids for Short Term Improvements & Routine Maintenance Work of sections of Porbandar-Bhiladi-Jetpur; (Km. 0.000 to Km.117.600) of NH-8B in the State of Gujarat (hereafter “the works”) issued by the National Highways Authority of India (“NHAI”) was not accepted. The NITs were issued on 15.12.2016 and 22.02.2017 (both are subject matter of two separate writ petitions, WP 6719/2017 and WP 6720/2017).

2. The petitioner is a works contractor; it claims to have gained experience in construction and maintenance of roads and highways. It responded to the two NITS, issued on separate dates. The scope of the project included routine maintenance of all the assets, facilities and services created within Right of Way (hereinafter "ROW") on the specified sections of national highways including maintenance of carriageway, shoulders, median etc., providing incident management by way of route patrol and surveillance, value addition to the road by way of providing crash barriers, median fencing, road signage and road marking etc, wherever required, road property management, horticulture maintenance etc. for a period of 36 months. The petitioner was issued two separate rejection letters – dated 19.07.2017 and 24.07.2017. NHAI expressed the opinion that Mohandas did not fulfill the eligibility conditions stipulated in the NIT.

3. The relevant eligibility condition (in WP 6719/2017, which is identical to the other NIT, except that in WP 6720/2017 it is numbered as Clause 4.5A) reads as follows:

“4.4 A. To qualify for award of the contract, each bidder in its name should have the following:-

(a) achieved an average annual financial turnover (In all classes of civil engineering construction works only) equal to the amount Indicated In NIT during last three years ending 31st March of the previous financial year duly certified by Chartered Accountant (Notwithstanding anything to the contrary contained herein. In the event that the bid due date falls within three months of the closing of the latest financial years. It shall ignore such financial year for the purpose of the bid and furnish annual financial turnover w.r.t. 3 years preceding In last financial year).

(b) satisfactorily completed (not less than 90% of contract value), as a prime contractor (or as a nominated/approved subcontractor, provided further that all other qualification criteria are satisfied) similar works during last seven years ending last day of month previous to the one in which bids are invited, either of the following;

i. three similar completed works costing not less than amount equal to Rs, 876 lakhs,

ii. two similar completed works costing not less than amount equal to Rs. 1095 lakhs.

iii. one similar completed work costing not less than amount equals to Rs. 1752 lakhs.

(The similar work constitutes experience in operation and maintenance/construction of four/six laned highway for O&M contracts whereas for special repairs /renewal work contracts, similar work constitutes experience of bituminous work on 2/4/6 lane highways)

(Escalation factor as under shall be used to bring the value of such completed works to the level of current financial year i.e. 2017-18)

Escalation factor (for the cost of works completed during the last 7 years & financial figures required for the calculation of bid capacity) may be taken as follows:

4. NHAI by its letters dated 19.07.2017 and 24.07.2017 determined the Petitioner's technical bid to be non-responsive in terms of clause 4.4 A (b) (and clause 4.5A(b)) of tender documents/N