O.M.P.(I) (COMM.) 244/2022 Page 1 of 24

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

O.M.P.(I) (COMM.) 244/2022 & I.A. 12741/2022

CONSULTING ENGINEERS GROUP LIMITED..... Petitioner

Through:

Mr.

Arvind

Nayar,

Sr.

Advocate with Ms. Nandadevi

Deka, Mr. Sudhir Yadav, Mr.

Savyasachi Rawat and Mr.

Akshay

Joshi,

Advocates

(M:8130788166)

versus

NATIONAL HIGHWAYS AUTHORITY OF

INDIA (NHAI)

..... Respondent

Through:

Ms.

Gunjan

Sinha

Jain,

Advocate

(M:9811387311;email:gunjan.si

nha@surico.in)

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGMENT

%

06.10.2022

MINI PUSHKARNA, J.

1. By way of the present petition under Section 9 of the

Arbitration and Conciliation Act, 1996 (hereinafter called “The Act”),

petitioner is seeking prayer for staying operation of debarment order

dated 02.08.2022 issued by the respondent by which petitioner has

been debarred from participating in all the tenders floated by

respondent and other executing agencies of Ministry of Road

Transport and Highways of India, for a period of three months with

levy of penalty of Rs. 20 lakhs. The petitioner further prays for

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004041

O.M.P.(I) (COMM.) 244/2022 Page 2 of 24

restraining respondent from giving effect to or acting in terms of or in

furtherance of the said debarment order, and for restraining respondent

from rejecting the bills submitted by petitioner prior to the order dated

02.08.2022 as non responsive.

2. Facts in brief are that, notice inviting tender dated 15.03.2018

was issued by respondent for the project: consultancy services for

Authority‟s Engineer (hereinafter referred to as „AE‟) for supervision

of construction of 8 Lane Dwarka Expressway from Delhi-Haryana

Border to start of rail over bridge, Gurugram, Haryana. As per the

tender document, bidders could apply either as a sole firm or by

forming joint venture with other consultants.

3. In order to participate in the aforesaid tender process and to

provide consultancy services, M/s Aecom Asia Company Ltd

(hereinafter referred as “M/s Aecom”) and M/s Consulting

Engineering Group Ltd. (hereinafter referred as „petitioner‟) agreed to

form a consortium wherein M/s Aecom was the lead partner and

petitioner was the associate partner. Memorandum of Understanding

(MOU) dated 14.05.2018 was entered between petitioner and M/s

Aecom for this purpose. Petitioner entered into the bidding process as

joint venture with M/s Aecom pursuant to the aforesaid MOU.

Technical and financial bids were submitted by M/s Aecom for

participation in the tender process.

4. Subsequently, Letter of Award (“LOA”) dated 22.10.2018 was

issued to the consortium of petitioner and M/s Aecom. LOA was

specifically addressed to M/s Aecom being the lead partner and

authorized representative of the consultants.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004041

O.M.P.(I) (COMM.) 244/2022 Page 3 of 24

5. Consultancy Agreement dated 05.12.2018 was entered between

the consortium of petitioner and M/s Aecom as joint venture on the

one hand and respondent on the other hand. Clause 8 of the said

Consultancy Agreement under the General Conditions of Contract

provides for amicable settlement of disputes between the parties, as

follows:

'' 8.Settlement of Disputes

8.1Amicable Settlement

8.2Dispute Settlement

6. The contract for construction of 8 lane Dwarka Expressway was

awarded to Larsen and Toubro Ltd. (hereinafter referred as EPC

Contractor). The consortium of petitioner and M/s Aecom was

engaged as consultant to act on behalf of respondent herein as

Authority‟s Engineer for supervision of the said construction work.