JUDGMENT

MINI PUSHKARNA, J: (ORAL)

1. The present petition has been filed seeking quashing and setting aside of the letter dated 05th March, 2024 issued by respondent no.1-National Highways Authority of India (“NHAI”) to the petitioner, whereby the technical bid of the petitioner has been held to be non-responsive. Thus, by way of the present petition, petitioner has prayed for direction to the respondent no.1-NHAI to consider and declare its technical bid to be responsive, open its financial bid and consider the same for award of tender. 2. Facts in brief are that, Notice Inviting Tender (“NIT”) dated 08th December, 2023 was issued by respondent no.1-NHAI for „Rectification of MoRTH identified blackspots at seven (07) - locations on Jaipur-Reengus- Sikar Section of NH-52 in the State of Rajasthan on Engineering, Procurement & Construction (EPC) mode‟. Pursuant to the aforesaid NIT, respondent no.1 issued a Request for Proposal (“RFP”) in February, 2024 delineating the schedule of the bidding process. Consequently, the petitioner submitted its bid on 26th February, 2024.

3. Subsequently, the respondent no.1-NHAI vide its letter dated 01st March, 2024 sought a clarification from the petitioner regarding its technical bid and directed that the same be furnished latest by 05th March, 2024 upto 1:00 PM. Thereafter, the petitioner submitted its clarification vide letter dated 05th March, 2024.

4. However, by the impugned communication dated 05th March, 2024, the technical bid of the petitioner was held to be non-responsive, aggrieved by which, the present petition has been filed.

5. Learned Senior Counsel appearing for the petitioner submits that the criteria as given in Clause 2.2.2.2(iii) of the RFP, is duly met by the petitioner. He submits that the work executed by the petitioner in Manipur for the National Highways and Infrastructure Development Corporation Limited, MoRTH (“Manipur Project”) falls squarely within the four corners of the eligibility criteria. He submits that the petitioner has completed the aforesaid Manipur Project, wherein the petitioner has duly constructed two bridges with four spans longer than 15 meters each and the cost of the said similar project is more than 51.02 Crores.

6. Attention of this Court has been drawn to the letter dated 05th March, 2024 written by the petitioner, whereby clarification was given by the petitioner on the evaluation of its technical bid.

7. He further submits that the respondent No. 1 has malafidely declared the technical bid of the petitioner as non-responsive by adopting a discriminatory interpretation of technical capacity requirements and are creating an irrational and arbitrary discrimination. Thus, he submits that the eligibility criteria stipulated under Clause 2.2.2.2(iii) for a sole bidder and under Clause 2.2.2.4 in the case of a Joint Venture (“JV”), are disparate and discriminatory.

8. Per contra, learned counsel appearing for respondent no.1 submits that the petitioner does not fulfill the criteria of technical qualification, as the petitioner did not execute work of a similar nature related to bridges, for a cost of Rs. 51.02 Crores, in terms of the criteria laid in the RFP. He further submits that work has already been awarded to the successful bidder on 09th March, 2024.

9. Having heard learned counsel for the parties, it is apposite to consider the relevant terms of the RFP, which read as under:

“xxx xxx xxx

2.2.2.2 Technical Capacity (i) For demonstrating technical capacity and experience (the “Technical Capacity”), the Bidder shall, over the past 10 (ten) financial years preceding the Bid Due Date, have received payments for construction of Eligible Project(s), or has undertaken construction works by itself in a PPP project, such that the sum total thereof, as further adjusted in accordance with clause 2.2.2.5 (i) & (ii), is more than Rs 255.09 crore (Rs. Two hundred fifty five crore and nine lakh only) (the “Threshold Technical Capacity”). (ii) Eligible projects sh