1. The question involved in this Writ Petition is whether a contractor can take advantage of the relaxed "qualification of the bidder" issued after the last date for submitting the technical bid and the financial bid, and after opening the technical bid and before opening the financial bid.

2. The writ petitioner, the additional third respondent and others submitted tenders for the work of improvement of riding quality of NH17 at KM63/00 to KM 91/00, in response to Ext.P2 tender notification dated 5.10.2009. The approximate cost of the work was fixed at Rs.906 lakhs. The tender was to be submitted under the two cover system containing financial bid and technical bid. The last date for submitting tender was before 4 PM on 25.11.2009. As per Ext.P2 notification, the technical bid was to be opened at 4.30 PM on 25.11.2009.

3. Five contractors, including the petitioner and the additional third respondent, submitted tenders. The technical bids were opened on 25.11.2009 at 4.30 PM.

4. Ext.P2 provides that the tenderer has to get the Standard Bidding Document, which should form part of the tender documents, from the Secretary, Indian Road Congress, New Delhi. The petitioner has produced relevant pages of the Standard Bidding Document as Ext.P3. The Standard Bidding Document in full was made available by the learned counsel appearing for the petitioner and it is taken on record. Clause 4.5 of Chapter A in Part I of the Standard Bidding Document provides for the requirements to qualify for award of contract. The relevant portion of Clause 4.5 of Chapter A in Part I of the Standard Bidding Document reads as follows:

"4.5 A. To qualify for award of the contract, each bidder in its name should have in the last five years as referred to in Appendix.

(a) achieved a minimum annual financial turnover (in all classes of civil engineering construction works only) amount indicated in Appendix in any one year (usually not less than two and a half times the estimated annual payments under the contract);"

5. On 27.11.2009, the Government of India, Ministry of Road Transport and Highways issued Ext.P4 Circular amending the Standard Bidding Document circulated vide Circular No.RW/NH- 24020/2/99-PIC dated 4.9.2000. Clause 4.5 of the Standard Bidding Document quoted above was amended as follows:

"General Experience

The Applicant shall meet the following minimum criteria:

(a) Average annual turnover (defined as billing for works in progress and completed in all classes of civil engineering construction works only) over the last five years of 40 per cent of the value of contract/contracts applied for."

6. According to the petitioner, the question of awarding the contract work has to be decided in terms of Ext.P4, which modified the qualifications of the bidder contained in Ext.P3. The petitioner contends that the evaluation of tenders should be made as per the amended provisions. The Writ Petition was filed on the ground that the petitioner apprehends that the respondents may "stick to the norms" contained in Ext.P3. The relief prayed for in the Writ Petition is to "issue a writ of mandamus or any other order or direction, directing the respondents to evaluate the tenders in terms of Exhibit P4 including the tender submitted by the petitioner pursuant to Exhibit P2".

7. The additional third respondent filed a petition for impleading and got itself impleaded. According to the additional third respondent, Ext.P4 would apply to submission of tenders only after 27.11.2009. The eligibility criteria fixed by the amendment would not affect the tenders submitted earlier. Eligibility has to be decided with reference to the last date for submission of tenders and not thereafter.

8. In the counter affidavit filed on behalf of respondents 1 and 2, it is stated that before modification of the guidelines regarding the procedure to be adopted for inviting of tenders and qualifications of contractors, evaluation of the tenders in the present case was done by