W.P.(C) 5868/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 16.11.2021

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Judgment delivered on: 19.05.2022

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W.P.(C) 5868/2021

AYESA INGENIERIA Y ARQUITECTURA S.A.U ..... Petitioner

Through:

Dr. Amit George, Mr. Priyabrat Tripathy,

Mr. Amol Acharya, Mr. Rayadurgam

Bharat, Mr. P. Harold, Mr. Ayush Acharjee

and Mr. Dorab Sabharwal, Advs.

versus

RAIL VIKAS NIGAM LIMITED

..... Respondent

Through:

Mr. Udit Seth and Mr. Anil Seth, Advs. for

R-1

Mr. Prashant Kumar Nair, Adv. for R-2

CORAM:

HON’BLE THE ACTING CHIEF JUSTICE

HON'BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

JASMEET SINGH, J.

1.

The present petition has been filed by the petitioner seeking amongst

others the following relief:

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001907

W.P.(C) 5868/2021

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evaluation of the final markings of the Petitioner;”

2.

The case of the petitioner is that the petitioner is a company

incorporated under the laws of Spain. In accordance with the Companies

Act, 2013, the petitioner has set up and is operating its branch at D-99, 4^th

Floor, Sector-2, Noida, Uttar Pradesh – 201301. The respondent No.1/ Rail

Vikas Nigam Ltd. is a company incorporated under the Companies Act,

1956 and is a wholly owned subsidiary of Ministry of Railways,

Government of India.

3.

The petitioner is engaged in the business of design consulting and

project management of projects including projects of urban mass transport.

On 02.12.2019 the respondent No.1 issued a Request for Proposal (RFP)

from experienced and reputed Consultants to provide General Consultancy

cum Project Management Consultancy (GC cum PMC) Services for:

Construction of Elevated and Underground Metro Railway works from

Mominpur (Ex.) to Esplanade, approx. 5.30 Km in connection with Joka -

BBD Bag Metro Corridor, in the state of West Bengal, India (hereinafter

called the “Project”). The RFP was revised in June 2020.

4.

The RFP was based on “Quality and Cost Based Selection” (QCBS)

process. It is submitted that in QCBS, bids the successful bidder is selected

on the basis of marks given for both – technical experience, as well as

financial quote. As per the RFP, 80% weightage was reserved for technical

bid score, and 20% weightage was reserved for financial bid score. The

bidder getting the highest combined marks would be considered for award of

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001907

W.P.(C) 5868/2021

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the project. Since the scope of the Project included performance of GC Cum

PMC, the bidders were required to possess the experience of both GC and

PMC in past projects. Clause 5.7.2.2.3 of the RFP prescribed “Hurdle

Criteria” under which bidders were supposed to possess past experience as

both: (i)GC and (ii)PMC in similar projects.

5.

The bidder was to be evaluated on a maximum of 10000 marks in

accordance with Clause 5.7.2.3 of the RFP. Marks were to be awarded in the

following manner:

6.

The petitioner submits that in a pre-bid meeting, a specific question

was asked regarding execution of work relating to twin tunnel, to which the

respondent No.1– rather than giving clarification, merely referred to the

terms of the revised RFP.

7.

The RFP also mandated the prospective bidders to submit a self-

evaluation of marks for their respective technical experience in the

prescribed format.

8.

The petitioner submitted its bid for the Project on 30.07.2020. Having

past experience, under Hurdle Criteria, the petitioner, in its bid, submitted

the experience certificates of Lucknow GC and Panama-I projects, which are

both GC cum PMC projects, and Panama-2 project which is a purely PMC

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001907

W.P.(C) 5868/2021

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project. As per self-evaluation, the petitioner claims that it should hav