Point of law: Tender work – Technical bidder - Governmental Order/ Corrigendum - Works Contracts, Including Turnkey Contracts - Bid Evaluation Criteria & Evaluation Methodology - Clause 3 defines bidder, “for the purpose of this provision to mean any person or firm or company, including any member of a consortium or joint venture, every artificial juridical person not falling in any of the descriptions of bidders, including any agency, branch or office controlled by such person, participating in a procurement process. A possible mistake made by respondents in respect of another tendering process would not give the petitioner a reason to insist that the same mistake should be perpetrated by the respondents in respect of the tender in question.

JUDGMENT :

VIPIN SANGHI, J.

1. The issue that arises for consideration in this writ petition under Article 226 of the Constitution of India is: Whether the policy decision of the Government of India, which requires that any bidder from a Country which shares land border with India should register with the Competent Authority, is attracted in the case of the petitioner. The above issue arises for consideration in the following background:

2. The petitioner company is registered with the Registrar of Companies, Delhi, also having registration under the Micro, Small and Medium Enterprises Development Act, 2006. It carries on its business of executing contracts for installation of pipelines for oil and gas sector in India, for Indian Oil Corporation Limited. The case of the petitioner is that the respondent namely, Mecon Ltd. – which is a project management consultant of GAIL India Limited, issued an advertisement inviting bids for E-Tender No. 8000016825 for laying pipeline, and associated works of 36’’ Inches x 112.500 km under Dhamra-Angul Pipeline Project of Jagdishpur-Haldia Bokaro- Dhamra Pipeline Project (JHBDPL) PH-II, on or about 02.07.2020. The tender work was split into 3 Sections, namely Section I, II and III. The petitioner submitted its bids for Section II, with which we are concerned.

3. The case of the petitioner is that Section II of the invitation to bid, “Clause A”, relates to Technical Criteria. It, inter alia, lays down the Experience Criteria. Admittedly, the petitioner claimed technical competence to offer its bid by relying on the Explanatory Note (iii) to Clause A in the Technical Criteria. Since the same is relevant, we reproduce the Technical Criteria contained in Clause A, as well as the “Note to A” which reads as follows:

“BID EVALUATION CRITERIA & EVALUATION METHODOLOGY

A. Technical Criteria

A.1 The bidder should have successfully executed/completed in last 10 (Ten) years to be reckoned from the bid due date, at least one single contract (*) involving laying/installation, testing of buried cross country hydrocarbon steel Pipeline of diameter and length as given below for qualifying for the quoted section(s):

For Section-I Minimum 16 Km of Dia. 18" OD or above in a single stretch.

For Section-II Minimum 14 Km of Dia. 18" OD or above in a single stretch.

For Section-III Minimum 15 Km of Dia. 18" OD or above in a single stretch.

(*) In case more than one contract are emanating against one tender, these contracts are to be considered as single contract for evaluation of credentials of a bidder for meeting their experience criteria.

Bidders who intend to qualify for more than one section shall meet the qualifying requirement on cumulative basis for the quoted section (s).

A.2 In case the bidder has an experience as a consortium member and such a member has executed earlier a job within its scope as a member of the consortium, which is required as experience as per the qualification criteria in clause no. A.1, will be considered. Appropriate documentary evidence to establish this is to be submitted towards such experience.

A.3 EQUIPMENT DEPLOYMENT CRITERIA

Bidder shall meet the minimum construction equipment requirement as specified in Annexure-9A of the bidding document. Bidders who intend to qualify for more than one Section shall meet the cumulative requirement for construction equipment specified for individual section.

Note to A:

(i) A Job executed by a Bidder for its own plant/project cannot be considered as experience for the purpose of meeting BEC of this Tender Document. However, jobs executed for Subsidiary/Fellow subsidiary/Holding company will be considered as experience for the purpose of meeting BEC subject to submission of tax paid invoice (s) duly certified by Statutory Auditor of the Bidder towards payments of statutory tax in support of the job executed for Subsidiary/Fellow subsidiary/Holding company. Such Bidders to submit these documents in addition to the documents specified to meet BEC.

(ii) Consor