The court emphasized the importance of the scope of work defined in the Memorandum of Understanding (MoU) between the bidder and its sub-contractor, and found that the petitioner's bid did not meet the essential requirements of the tender. The subsequent attempt to cure the defect by entering into a fresh agreement after the bid submission deadline was impermissible.

ORDER :

ARAVIND KUMAR, J.

1. The petitioner has sought for quashing of the communications dated 30.07.2022, 17.08.2022 and 13.09.2022 ‘Annexure-B’, whereby the tenders submitted by the petitioner has been declared to be non-responsive.

2. The respondent floated a tender on 21.02.2022 for Supply, Erection, Testing and Commissioning of Power Supply Receiving and Distribution System, 750 V DC- Third Rail Traction Electrification and SCADA System for Ahmedabad Metro Rail Project Phase-II. The petitioner submitted its bid online on 04.06.2022 along with documents. On 30.07.2022, the respondent forwarded communication to the petitioner informing that the bid submitted by the petitioner is considered as non-responsive in terms of the clause 4.2(b) of Section III of Evaluation and Qualification Criteria (hereinafter referred to as ‘EQC’ for short). This was responded to by the petitioner on 31.07.2022 seeking clarification and basis on which the bid of the petitioner was considered as non-responsive. The respondent by communication dated 01.08.2022 forwarded a letter to the petitioner informing that the representation of the petitioner is being looked into. Thereafter on 17.08.2022, the respondent forwarded the impugned communication stating thereunder that as per tender clause No. 4.2(b) Key – activity D: TSS, the scope of specialized Sub-contractor shall be “supply and supervision” of erection, testing and commissioning of 600 V/750 V DC and above DC voltage TCC works. However, the Memorandum of Understanding between the petitioner and its consortium members Secheron SA is limited to “supply” and therefore, the petitioner does not meet “must meet” tender criteria regarding key activity D:TSS.

3. The above communication triggered the petitioner to enter into another MoU with the said M/s.Secheron SA under which agreement, the clause 2 relating to scope of work came to be specifically excluded “supervision”. Hence, the petitioner taking umbrage under the said fresh MoU, had entered into with the consortium member, forwarded a communication on 23.08.2022 to the respondent of this development and requested the respondent to re-consider the decision and this was followed by another communication dated 26.08.2022. The respondent authority vide communication dated 13.09.2022 informed the petitioner that bid was not meeting “must meet” tender criteria regarding key activity D:TSS and as such reiterated its earlier stand of petitioner being declared as non-responsive. Hence, this petition.

4. The respondent who is on caveat, has appeared and filed the reply affidavit denying the averments made in the petition and contending that the petition is not maintainable on the ground that no fundamental right of the petitioner is violated. It is also contended that the bid of the petitioner was rejected as it does not specify the eligibility cum qualification requirement. It is also contended that there is suppression of facts. It is also contended that tender is divided into three stages namely :

(a) Initial Filter cum Qualification Requirement (IFCQR) Bid;

(b) Technical bid

(c) Price bid

5. It is contended that clauses 4.2(a) and 4.2(b) lay on the eligibility-cum-qualification criteria and said clauses have been incorporated. Having regard to the fact that the work involved is of a special nature and as such the tender document permitted the bidders to engage the services of Special Sub-contractor for undertaking said work. Hence, contending that in view of clause 34.2 of Section I of Tender Document defining the expression Sub-contractor and the experience criteria is laid down in Clause 4.2(b), whereunder key activity is not only the experience which the bidders and/or their subcontractors require to possess but the same is also part of the scope of work which the bidders and/or their Subcontractors had to undertake, in the event of tender is awarded to them.

6. It is further contended that bidders are permitted to rely upon the experience of specialized