Tender committees must adhere to established eligibility criteria and cannot alter rules post-evaluation without basis in the tender documents.

ORDER :

This writ petition is filed with a prayer of Certiorarified Mandamus, calling for the records on the file of the first respondent relating to the minutes of the implementation of Bio-CNG projects in the Corporations of the State – Madurai, Coimbatore, Tiruppur, Tiruchirapalli, Tambaram and Salem on Public-Private Partnership Tender Evaluation and Scrutiny Committee, Tamil Nadu, held on on 02.12.2024 at 01:00 p.m. through video conference, Chennai, and to quash the same in as much as it declares the petitioner to be ineligible in participating in the financial bids of the respondents 3 and 4 and consequently, direct the respondents to approve the technical bid of the petitioner and permit the petitioner to participate in the financial bid.

2. The factual background in which the writ petition arises is that the respondents floated a tender on 02.03.2024, inviting bids on Public- Private Participation mode on Design, Built, Finance, Operate and Transfer basis for a period of 20 years with reference to the establishment of Municipal Solid Waste based Bio-CNG plant at Coimbatore. The last date for submission of the bid was 22.04.2024. Thereafter, the time was periodically extended and ultimately, the last date was 26.06.2024. The petitioner also submitted its technical bid. As per Clause 2.2 of the tender document, the eligibility criteria and qualification criteria were prescribed. As per Clause 2 of the qualification criteria, the single bidder/ lead member of the consortium should have reported an average annual turn over of atleast Rs.15 crores in the last three consecutive financial years. Clause 2.2.7 of the tender documents state that in computing the technical capacity, net worth and turn over of the bidder/ consortium members under clause 2.2.2(b), the net worth turn over and experience of the respective associates would also be eligible as mentioned thereunder.

3. It is further mentioned that for the purpose of the Request For Proposal (RFP), an “associate” means, in relation to the bidder/ consortium member, a person who controls or is controlled by or is under the common control with such bidder/ consortium member (Associate). Therefore, the petitioner formed a consortium with one Spectrum Renewable Energy Private Limited, whereby the petitioner was the lead partner and the said company was the technical partner for the purposes of submitting the bid. The petitioner, in compliance with Clause 2.2.7 of the RFP, has submitted an average annual turn over of Rs.30.44 crores of its associate company viz., Sherisha Technologies Private Limited, which has controlling power over the petitioner herein to meet the financial eligibility criteria as per the RFP. Since the Sherisha Technologies Private Limited owns 44% of the equity shares in Refex Renewable and Infrastructure Limited and since the petitioner is a wholly-owned subsidiary of Refex Renewable and Infrastructure Limited, it can be seen that the Sherisha Technologies Private Limited is an associate of the petitioner, which is the lead member and their annual turn over can also be taken into account for the purpose of meeting the eligibility criteria.

4. It is the further case of the petitioner that when the Tender Scrutiny Committee took up the issue of scrutinising the tender, they found the petitioner to be eligible. The Tender Committee, in its meeting, had considered the said turn over and with reference to both Coimbatore and Madurai had taken into account the said turn over of Rs.30.44 crores and it clearly made an entry that the qualification is verified and satisfied. However, three months later, the very same Tender Committee, for the reasons best known to them, once again seems to have taken up the concluded issue of verifying about the technical qualification, and the impugned order is passed, stating that since the Sherisha Technologies Private Limited holds only 44% in RPFL, the same proportion of the turn over alone will be considered and therefore, if