PATEL ENGINEERING LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The National Highways Authority of India (R-2) had decided to undertake development and operation / maintenance of "six laning of Dhankuni Kharagpur Section of NH-6" in the States of West Bengal and Orissa under NHDP Phase-V "on design, build, finance, operate and transfer" (DBFOT) "toll basis project through public private partnership". For the said purpose, R-2 decided to invite offers for selecting a private entity to which the project could be entrusted on the basis of a long term "Concession Agreement".

(2.) An elaborate bidding process was devised by R-2, the full details of which are not necessary for the present purpose. Bids were invited on the basis of the "lowest financial grant required by a bidder for implementation of the project", or in the alternative "a bidder may, instead of seeking a grant, offer to pay a premium in the form of revenue share and / or upfront payment, as the case may be," to R-2 for award of the concession.

(3.) The petitioner, a company, was one of the 14 persons, who submitted bids. Petitioner quoted a premium of Rs.190.53 crores per year and was declared the highest bidder. By a letter dated 17-01-2011, R-2 informed the petitioner that its bid had been accepted and the petitioner was called upon to confirm its acceptance within 7 days [as required under Clause 3.3.5 of the Request for Proposal (RPF), volume 1]. By a letter dated 24-01-2011 the petitioner company expressed its inability to confirm its acceptance on the ground that its bid was found not commercially viable on a second look. The petitioner stated in the said letter that minutes of the pre-bid meeting, which included several amendment / queries, were published on website of NHAI on 07-01-2011 and the bid had to be submitted within three days thereafter, i.e., on 10-01-2011, thereby leaving insufficient time to consider and assess impact of the clarifications published by R-2 on its website on 07-01-2011.