I.A. Ansari, J.

1. The respondent No. 1, namely, Oil India Ltd., a Government of India Undertaking, published a global tender, on 2.1.2008, inviting bid applications for installing and commissioning 2(two) sets of Mud Tank System for BHEL make AC-SCR Drilling Rigs with tank system, each set consisting of (i) three numbers of active tanks and (ii) three numbers of reserve tanks. The said tender was invited under Single Stage Two Bid System, namely, Techno Commercial Unpriced Bid' and 'Commercial Bid'. Responding to the Notice Inviting Tender ('the NIT), amongst others, the respondent No. 5 herein, which is a proprietorial firm registered, under National Small Scale Industries Corporation Ltd., and the petitioner, which is a company registered under the Companies Act, 1956, submitted their tenders. By a letter, dated 4.4.2008, respondent No. 1 sought for certain clarifications from the petitioner company with regard to the petitioner company's technical bid. A reply to the letter, dated 4.4.2008, aforementioned, was issued by the petitioner-company on 9.4.2008. The petitioner-company, however, claims that it, later on, came to know that the petitioner-company's bid was found to be not conforming to the specifications of the NIT and, treating the petitioner-company's bid as technically non-responsive, respondent No. 1 had rejected the petitioner-company's Techno-Commercial Unpriced Bid. Consequently, the 'Commercial Bid' of the petitioner-company was not opened. However, respondent No. 5 was held qualified by the Techno-Evaluation Committee and, in consequence of this finding, the price bid of the respondent No. 5, along with another bidder, namely, BHEL, was opened and respondent No. 5 was selected for awarding the contract.

2. The respondent No. 1 has, however, not been able to place the supply order with the respondent No. 5 inasmuch as the petitioner-company has, in the meanwhile, filed this writ petition, under Article226 of the Constitution of India, challenging, inter alia, rejection of the petitioner-company's technical bid as non-responsive and also the selection of respondent No. 5, as awardee of the contract, in this writ petition, and an order, on 5.6.2008, was passed directing the respondent No. 1 not to finalise the said tender process.

3. As reflected by the writ petition, the petitioner-company's case is, in brief, thus: The petitioner-company has been carrying on similar nature of works since the year 1982 and has gained not only sufficient experience, but also has acquired international reputation and goodwill in installation and commission of Mud Tank System inasmuch as it has been supplying and installing Mud Tank Systems and drilling equipments, during the past several years, to various foreign companies like Kuwait Drilling Company and even to national public sector undertakings, such as, ONGC Ltd., etc. Because of the vast experience and technical competence, which the petitioner-company has acquired, it had been quite confident that if the selection were done on merit, the petitioner-company's technical bid could not have been rejected as technically non-responsive. The Techno-Commercial bid, submitted by the petitioner-company, was enough to meet any recent technological development inasmuch as the petitioner-company has been manufacturing, supplying, installing and commissioning Mud Tank System and accessories of drilling to different companies all over the world and the technical competence, experience and reputation, which-it has gained, ought to have made it qualified in the Techno-Commercial Unpriced bid, but the petitioner-company's technical bid has been rejected arbitrarily and such rejection suffer from non-application of mind and mala fide. The Mud Tank System, which the petitioner-company has supplied to M/s. Kuwait Drilling Company, are similar to ones, which the respondent No. 1, in terms of the global tender, had sought to obtain; whereas respondent No. 5, according to the petitioner-co