EFKON INDIA PRIVATE LIMITED AND STRABAG AG CONSORTIUM, AN UNINCORPORATED JOINT VENTURE Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA

JUDGEMENT

(1.) W.P.(C) 3251/2018 & W.P.(C) 3607/2018

(2.) The brief facts are that scope of work tendered by NHAI included supply, laying, installation and testing of Fibre Optic Cable along the Eastern Peripheral Expressway on both sides, in addition to Operation & Maintenance of ATMS for a period of Four (4) years from the date of a Taking-Over Certificate of ATMS. Further scope of works is described in the Employer's Requirements of the Bid Document. The bidding documents consisted among others a standard pre-qualification Document under Japanese ODA Loans by JICA, dated October 2012 and Notice Inviting Tender (NIT) dated 23.06.2017. The tender was to be conducted by way of submission of Technical Bid and a Financial Bid through e-procurement portal. The tender documents also contained a mandatory Bid Security of Rs. 4,52,00,000/- (Rupees Four Crores and Fifty Two Lakhs only) which had to be submitted at the time of submission of technical bid.

(3.) The schedule of bidding process (Clause 2 NIT) stipulated invitation of RFP on 206.2017; bid due date was 22.08.2017; opening of technical bids was on 208.2017; declaration of eligible/qualified bidders was 20 days from the opening of Technical Bids; opening of Financial Bid was 7 days after the declaration of qualified bidders. The letter of award of contract was 10 days after the opening of financial bids and signing of Agreement is 10 days after the LOA. The two petitioners, (the petitioner in W.P.(C) 3251/2018 referred to hereafter as "Efkon" and the petitioner in W.P.(C) 3607/2018 hereafter referred to as "IBI Group") submitted their bids. NHAI sought clarifications from Efkon by its letter dated 26.10.2017,which were responded to with replies. Efkon, by letter dated 04.11.2017 replied to all the queries of NHAI. By letter dated 18.01.2018 NHAI sought extension of validity of the bid upto 21.02.2018 which was acceded to by Efkon's letter dated 19.01.2018, confirming bid extension upto 21.02.2018. The petitioner Efkon also extended bid validity till 08.02018, by its letter-dated 16.02.2018. Since nothing was heard about the bid, Efkon flagged concerns in its letter to NHAI's Chairman dated 26.10.2017. At this stage, NHAI asked all bidders to extend their bid validity and that of the bank guarantees furnished till 30.04.2018 and 31.05.2018 respectively. This request too was acceded to. It is stated that in these circumstances, Efkon was shocked to receive the result of technical evaluation addressed by NHAI by its letter dated 02.04.2018 stating that the Petitioner has not qualified technically. It was furthermore surprising to note that no reasons were assigned, based on which such a decision was taken by NHAI. The letter proposed to open the financial bid on 004.2018 at 11:30 A.M. It is contended that in terms of the schedule under Notice Clause 2 of the tender conditions, the financial bids were to be opened only after seven days from the date of declaration of qualified bidders, to provide disqualified bidders an opportunity to redress their grievances before NHAI and to follow due and transparent bidding process.