Interpretation of bidding process clauses and appendices related to POA submission.

JUDGMENT

1. Respondent 1-NHAI invited bids for four-laning of the Sambalpur-Orissa border stretch, of 88 km, of NH-6, in the State of Orissa. The bidding process envisaged application, by the interested reader, who fulfilled the qualifications stipulated in the Request for Qualification (RFQ), whereafter the NHAI would announce a list of prequalified applicants, who could participate in the bidding process by submitting the Request For Proposal (RFP). The petitioner MSK Projects obtained a copy of the RFQ from NHAI. Thereafter, a Consortium comprising the petitioner and Respondents 3 and 4 submitted an application, as a bidder for the Project. The petitioner was the lead member of the Consortium.

2. Clause 2.2.5 of the RFQ required submission, by the interested reader, of a Power of Attorney (POA), in the following terms:

"2.2.5 The Applicant should submit a Power of Attorney as per the format at Appendix-II, authorising the signatory of the Application to commit the Applicant. In the case of a Consortium, the Members should submit a Power of Attorney in favour of the Lead Member as per the format at Appendix-III."

3. Thus, it was clear that, whether under the RFP or under the RFQ, (i) where the bidder was a Consortium, the Members of the Consortium were required to furnish a POA in favour of the Lead Member and (ii) the Bidder was required to submit a POA, authorising submission of the Bid by the signatory thereof. The formats for the POA to be submitted under Clauses 2.1.10 of RFP (by the Members of the Consortium in favour of the Lead Member) and 2.1.9 of RFP (by the Bidder authorising the signatory who submits the Bid) were to be found in Appendices IV and III to the RFP, respectively.

4. On 5th February, 2010, NHAI wrote to the petitioner, querying, as to why (i) the POA, authorising the signing of the application submitting the bid, was signed by the same person who had signed the application, i.e. Ms Vandana C Patel, and (ii) Respondents 3 and 4 had both not signed the POA in the format provided in Appendix II to the RFQ.

5. The petitioner responded on 9th February, 2010. Vandana Patel, it was submitted, was the authorised signatory of the petitioner, in which capacity, she had authorised signing of the application submitting the bids by herself. Apropos Appendix II, it was submitted that the format in Appendix II envisaged submission of the POA by the authorised person of the Lead Member of the Consortium and not by all members of the Consortium.

6. Vide letter dated 8th March, 2010, NHAI declared the petitioner the "Pre-qualified Applicant" for the Project.

7. On the basis thereof, the petitioner purchased, from NHAI, a copy of the RFP. Clause 1.2.4, read with Clause 2.1.7 of the RFP, required the bidder to deposit of the security of Rs. 9.09 crores. Additionally, Clauses 2.1.9 and 2.1.10 of the RFP required the Bidder to provide two POAs, thus:

"2.1.9. The Bidder should submit a Power of Attorney, as per the format at Appendix-III, authorising the signatory of the Bid to commit the Bidder.

2.1.10 In case the Bidder is a Consortium, the Members thereof should furnish a Power of Attorney in favour of the Lead Member in the format at Appendix-IV."

8. Appendices III and IV to the RFP provided the following formats, for the POAs to be submitted in terms of Clauses 2.1.9 and 2.1.10 of the RFP:

"APPENDIX-III

Power of Attorney for signing of Bid

{Refer Clause 2.1.9}

Know all men by these presents, We, ............... (name of the firm and address of the registered office) do hereby irrevocably constitute, nominate, appoint and authorise

Mr./Ms. (Name), son/daughter/wife of ........... and presently residing at ........... who is presently employed with us/the Lead Member of our Consortium and holding the position of .............. as our true and lawful attorney (hereinafter referred to as the "Attorney") to do in our name and on our behalf all such acts, deeds and things as are necessary or required in connection with or in