WP(C) 2114/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI The writ petitioners, who have formed a joint venture in order to respon d to a Notice Inviting Tender issued by the Assam State Electricity Board (for s hort ’ASEB), assails the decision of the respondent Board holding the technical bid submitted by the respondent No.5 to be responsive so as to justify the openi ng of the financial bid offered by the said respondent No.5. The writ petitioner s and the respondent No.5, it must be noticed, are the only two bidders who had submitted their response to the NIT in question. It must also be noticed at this stage that the financial bid offered by the petitioners exceeds the amount quot ed by the respondent No.5 by over Rs. 8 crores. 2. The detailed facts that will be required to be noticed for an ef fective adjudication of the issues arising from the voluminous pleadings of the parties, the records produced and the arguments advanced, may now be narrated. 3. The Assam State Electricity Board had published a NIT dated 12.3 .2006 for International Competitive Bidding for procurement of Grid Communicatio ns (PLCC) Equipment for the sub stations in Assam under the Assam Power Stations Development Project. The cost of procurement of the equipment and the machinery for which the bids were invited were to be met from a loan from the Asian Devel opment Bank (ADB). The Government of India, the State of Assam and the ADB were parties to various loan agreements which were executed to facilitate grant and r eceipt of loan from the ADB by the State of Assam which was to be made available to the ASEB for different works in connection with the Assam Power Stations Dev elopment Project. The various loan agreements which have been brought on record by the contesting parties would go to show that apart from the usual and pre-set norms that were to guide the proposed finance to be made available by the ADB, the outlay of the loan amount against specific contracts like the present one we re required to be approved by the ADB at all stages. The details of the invitati on to submit bids, the norms governing such invitation and consideration of the bids to be submitted make it clear that apart from the two bid process which was to be evaluated by a Committee of Technical Experts, whose opinion was to be su bmitted to the ADB for its final approval, the parties had agreed to have the se rvices of an expert consultant who was to be consulted from time to time in the event any necessity arose for seeking clarification with regard to the response submitted by any of the tenderers. 4. In response to the NIT dated 12.3.2006, the writ petitioners as a joint venture and the respondent No.5 claiming to be duly authorised by the ma nufacturer of the equipment required to be offered for supply, submitted their r espective bids which were opened on 10.8.2006. The bids submitted after initial scrutiny were sent to the consultant i.e. one SMEC whose report, as available on record, would seem to indicate that both the bids submitted by the writ petitio ners and the respondent No.5 were found to be technically responsive, though an opinion was expressed that there was need to obtain an extended guarantee from t he respondent No.5 in view of the fact that the product offered was largely untr ied in the market. The matter, thereafter, went to the Technical Committee const ituted by the Board whose opinion was adverse to the respondent No.5. Such an ad verse opinion, shorn of technical details, proceeded on the basis that the produ ct offered being untried and unknown in the market, the respondent No.5 had fail ed to meet the requirements imposed by the conditions contained in the bid docum ent, particularly Clauses 7 and 8 of Section III of the bid document. On receipt of the aforesaid opinion of the Technical Committee, the matter was referred by the ASEB once again to the consultant with a specific query as to whether the e quipment offered to be supplied by the respondent No.5 would make the bid respon sive to Clauses 7 and 8 of Section III of the bid document. The affirmative answ er of the consultant, particularly, that the earlier supply effected by the resp ondent No.5 with regard to the equipment known as PL 1790 can be taken into acco unt in determining the bidders’ qualification under Clauses 7 and 8 of Section III was disagreed to by the Technical Committee which met once again in the mont h of December, 2006. The Committee took the view that as the equipment known as PL 1790 was stated by the consultant itself to be different from what was being offered i.e. Micon T 390, which product, at best, was related to the equipment k nown as PL5000, the bid offered by the respondent No.5 cannot be considered to b e technically responsive. That apart, the Committee took the view that the produ ct offered being new and the source of spares etc. being uncertain, the ASEB sho uld not be made an experimental ground by the intended supply. The matter, there after, was sent to the ADB as required, which body disagreed with the views of t he Technical Committee by holding that the premises for judging the responsivene ss of the bid/offer must necessarily be those as embodied in the bid document it self. The ADB, on the said premises, directed for opening of the financial bids which, accordingly, was done sometime in the month of April, 2007. Aggrieved by the aforesaid actions and as the financial bid offered by the petitioners was mu ch higher than what was offered by the respondent No.5, which fact reasonably af fected the prospects of the writ petitioners to the grant of the contract in que stion, the present proceeding has been initiated. 5. Before proceeding to notice the stand taken by the contesting pa rties in the present proceeding and consideration of any of the said contentions , it will be necessary to set out hereinafter the provisions of the relevant cla uses of the bidding document on which reliance has been placed by the learned co unsels for the contesting parties and arguments have been advanced. Section I Instructions to Bidders & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 4.0 ELIGIBLE BIDDERS 4.1 A Bidder may be a natural person, private entity, government-owned entit y (subject to ITB Sub-Clause 4.5) or any combination of them with a formal inten t to enter into an agreement or under an existing agreement in the form of a Jo int Venture (JV). In the case of a JV: (a) all parties to the JV shall be jointly and severally liable; and (b) a JV shall nominate a Representative who shall have the authority to con duct all businesses for and on behalf of any and all the parties of the JV durin g the bidding process and, in the event the JV is awarded the Contract during co ntract execution. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 7.0 CLARIFICATION OF BIDDING DOCUMENT 7.1 A prospective bidder requiring any clarification of the Bidding Document shall contact the Purchaser in writing at the Purchaser‘s address indicated in the BDS. The Purchaser wil respond in writing to any request for clarification, provided that such request is received no later than twenty-one (21) days prior to the deadline for submission of Bids. The Purchaser shall forward copies of i ts response to all Bidders who have acquired the Bidding Document directly from it, including a description of the inquiry but without identifying its source. S hould the Purchaser deem it necessary to amend the Bidding Document as a result of a clarification, it shal do so following procedure under ITB Clause 8 and Sub -Clause 24.2. 8.0 AMENDMENT OF BIDDING DOCUMENT 8.1 At any time prior to the deadline for submission of the Bids, the Purcha ser may amend the Bidding Document by issuing addenda. 8.2 Any addendum issued shall be part of the Bidding Document and shall be c ommunicated in writing to all who have obtained the Bidding Document directly from the Purchaser. 8.3 To give prospective Bidders reasonable time in which too take an addendu m into account in preparing their Bids, the Purchaser may, at its discretion, ex tend the deadline for the submissiono f the Bids, pursuant to ITB Sub-Clause 24. 2. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 11.0 DOCUMENTS COMPRISING THE BID 11.1 The Bid shall comprise two envelopes submitted simultaneously, one conta ining the Technical Proposal and the other the Price Proposal, enclosed together in an outer single envelope. 11.2 Initially, only the Technical Proposals are opened at the address, date and time specified in ITB Sub-Clause 27.1. The Price Proposals remain sealed and are held in custody by the Purchaser. The Technical Proposals are evaluated by the Purchaser. NO amendments or changes to the Technical Proposals are permitted . Bids with Technical Proposals which do not conform to the specified requiremen ts will be rejected as deficient Bids. 11.3 Price Proposals of technically compliant Bids are opened in public at a date and time advised by the Purchaser. The Price Proposals are evaluated and t he Contract is awarded to the Bidder whose Bid has been determined to be the low est evaluated substantially responsive Bid. 11.4 The Technical Proposal shall contain the following: (a) Technical Proposal Submission Sheet. (b) Bid Security, in accordance with ITB Clause 21; (c) Alternative Technical Proposal, if permissible, in accordance with ITB C lause 13; (d) Written confirmation authorizing the signatory of the Bid to commit the Bidder, in accordance with ITB Clause 22. (e) documentary evidence in accordance with ITB Clause 16 establishing the B idder‘s eligibility to bid; (f) documentary evidence in accordance with ITB Clause 17, that the goods an d Related Services to be supplied by the Bidder are of eligible origin. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 29.0 CLARIFICATION OF BID 29.1 To assist in the examination, evaluation, comparison and post-qualificat ion of the Bids, the Purchaser may, at its discretion, ask any Bidder for a clar ification of its Bid. Any clarification submitted by a Bidder that is not in res ponse to a request by the Purchaser shall not be considered. The Purchaser‘s req uest for clarification and the response shall be in writing. NO change in the pr ices or substance of the Bid shall be sought, offered, or permitted, except to c onfirm the correction of arithmetic errors discovered by the Purchaser in the ev aluation of the Price Proposals, in accordance with ITB Clause 31. 30.0 RESPONSIVENESS OF TECHNICAL BID 30.1 The Purchaser‘s determination of the responsiveness of a Technical Propo sal is to be based on the contents of the Technical Proposal itself. 30.2 A substantially responsive Technical Proposal is one that conforms to al l the terms, conditions, and specifications of the Bidding Document without mate rial deviation, resrvation, or omission. A material deviation, reservationl, or omission is one that: (a) affects in any substantial way the scope, quality, or performance of the Goods and Related Services specified in the contract; or (b) limits in any substantial way, inconsistent with the Bidding Document, t he Purchaser‘s rights or the Bidder‘s obligations under the Contract; or (c) if rectified would unfairly affect the competitive position of other Bid ders presenting substantially responsive Technical Proposals. 30.3 If a Technical Proposal is not substantially responsive to the Bidding D ocument, it shall be rejected by the Purchaser and may not subsequently be made responsive by the Bidder by correction of the material deviation, reservation, o r omission. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 38.0 POST QUALIFICATION OF THE BIDDER 38.1 The Purchaser shall determine to its satisfaction during th evaluation of Technical Proposals whether Bidders are qualified to perform the Contract sat isfactorily. 38.2 The determination shall be based upon an examination of the documentary evidence of the Bidder‘s qualifications submitted by the Bidder, pursuant to IT B Clause 19, to clarifications in accordance with ITB Clause 29 and the qualific ation criteria indicated in Section III, Evaluation and Qualification Criteria. Factors not included in Section III, Evaluation and Qualification Criteria shall not be used in th evaluation of the Bidder‘s qualfication. 38.3 An affirmative determination shall be a prerequisite for the opening and evaluation of a Bidder‘s Price Proposal. A negative determination shall result into the disqualification of the Bid, in which event the Purchaser shall return the unopened Price Proposal to the Bidder. 39.0 PURCHASER‘S RIGHT TO ACCEPT ANY BID, AND TO REJECT ANY OR ALLL BIDS 39.1 The Purchaser reserves the right to accept or reject any Bid, and to ann ul the bidding process and reject all Bids at any time prior to Contract award, without thereby incurring any liability to the Bidders. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & Section - II BIO DATA SHEET Procurement of Grid Communications (PLCC) Equipment For Substations in Assam C. Preparation of Bids ITB 10.1 The language of the Bid is: English ITB 11.4(i) The Bidder shall submit with its Technical Proposal the followin g additional documents: 1. Guaranteed Technical Particulars as per Section VI, ’ Schedule of Supply’ 2. Type Test Certificates 3. Quality Assurance Plan 4. Manuf acturer’s Authorization Certificate D. Submission and Opening of Bids ITB 22.2 The written confirmation of Authorization to sign on behalf of the Bidder shall consist of: a) The written confirmation of Authorization to sig n on behalf of the Bidder shall consist of Notarized Power of Attorney. If the b idder is from a country where this practice is not used then a similar legal ins trument of authorization as applicable under the home country laws of bidder mus t be provided. b) Bids submitted by an existing or intended Joint Venture of Con sortium shall include an undertaking signed by all the parties (I) stating that all parties shall be jointly and severally liable, and (II) nominating a Represe ntative who shall have the authority to conduct all business for and on behalf o f any and all the parties of the JV during the bidding process and, in the event the JV is awarded the Contract, during contract execution. Section - III EVALUATION AND QUALIFICATION CRITERIA Procurement of Grid Communicaitons (PLCC) Equipment For Substations in Assam 3.0 TECHNICAL CRITERIA: & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 3.2 The material offered shall be fully type tested as per relevant Internat ional/Indian Standard. The Bidder shall furnish type test report as per Clause 3 .4.1 of Section VI. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 7.0 EXPERIENCE CRITERIA: 7.1 The Bidder shall include data and information in its Bid showing that: (i) The Bidder should be manufacturer/Leader of a Joint Venture/Consortium o f Manufacturer(s) of PLCC Terminals, CVT, Wave Trap, Line Coupler/Matching Unit, Protective Device, Microprocessor type EPAX Telephone exchange, Telephone Instr uments and RTU/SCADA interfaces and fibre optic communication interfaces, who ha s/have established manufacturing facility in his/their works for manufacture of PLCC Terminals, CVT, Wave Trap, Line Coupler/Matching Unit, Protective Device, M icroprocessor type EPAX Telephone exchange, Telephone Instruments and RTU/SCADA interfaces and fibre optic communication interfaces. In case the Bidder is not a manufacturer, but only a duly authorized representat ive of the manufacturer, the experience requirements as provided in item (i) abo ve must be complied with by the manufacturer being duly represented. Otherwise, the bid will be rejected. ii) The Manufacturer must have designed, manufactured; type tested, supplied and commissioned PLCC Terminals, CVT, Wave Trap, Line Coupler/Matching Unit, Pr otective Device, Microprocessor type EPAX Telephone exchange, Telephone Instrume nts and RTU/SCADA interfaces and fibre optic communication interfaces, which are in successful operation for at least five years as on the date of bid opening. iii) The Bidder must have adequate testing facilities in his works or shall arrange such tests in recognized laboratories/institutions, for the product offe red. The Bidder shall indicate clearly where he proposes to conduct tests for th e products offered by him. The bid shall include complete details of t esting fa cilities available at the manufacturer‘s works. 7.2 To qualify for a package of contracts made up of this and other contract sfor which bids are invited in, the bidder must demonstrate having experience an d resources sufficient to meet the aggregate of the qualifying criteria for the individual contracts. 7.3 Sub-contractor‘s experience and resources shall not be taken into accoun t. 8.0 SUPPLY CAPACITY: 8.1 The Bidder has to reaffirm with documentary proof that he has supplied m ore than the quantity involved in the package/bid during any two years in the la st five years individually for the items listed below: . Capacitive Voltage Trarnsformer . Wave Trrap . Carrier Terminal. 8.2 In the event of Joint Venture/Consortium to meet the supply capacity cri teria, the collective supply experience of the JV/Consortium should meet the cri teria requirements as per clause 3.1 above. & & & & & & & & & & & & & & & & & & & & & & & & & & & & &.. & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. SECTION-VI SCHEDULE OF SUPPLY Procurement of Grid Communications (PLCC) Equipment For Substations in Assam Chapter 1 List of Goods and Related Services 1.1 LIST OF MAIN EQUIPMENT : Item No. Description Unit of Measurement Quantity Remarks 1.1(a) & &.. & & &. & & & &. & & &.. 1.1(b) & & &. & & & &. & &.. & & &.. 1.3(a) Single Channel PLCC Terminal Each 110 1.3(b) Twin Channel PLCC Terminal Each 96 1.4(a) & & &.. & & & & & & & &. & & & & &. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & Chapter 3 TECHNICAL SPECIFICATION A. GENERAL INFORMATION 3.1.0 SCOPE OF CONTRACT 3.1.1 This section of the specification covers the requirements of design, manufacture, tests at manufacture’s works, supply and related services includi ng installation of this equipment at site of Grid Communication (PLCC) com plete with all accessories for efficient and trouble free operation as sp ecified. 3.1.2 The scope of work includes supply of Grid Communication (PLCC) Equipment as individual items and other accessories as specified in schedule of supply fo r rehabilitation and expansion of existing ASEB PLCC System. Therefore, Bidders should pre-assess suitability and adaptability of the PLCC Equipments they inten d to supply. PLCC Equipments where needed, shall be ’tailor made’ and will be su pplied with necessary mounting fixtures. Bidders must pre assess prior to supply suitability and adaptability of PLCC Equipment intended to be supplied for reha bilitation and expansion of existing ASEB PLCC System. 3.1.3 & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &.. 3.1.4 Bidders shall take particular note shall be taken that the scope include s for incidental civil/ building modifications to facilitate installation of the supplied PLCC equipment and where necessary, modify/ expand and existing substa tions’ Control, PLCC and/or battery rooms. Bidders are to carefully assess exist ing substations PLCC equipment arrangements/ layouts and satisfy themselves rega rding the adequacy of existing space and any actual need of civil/ building modi fication to ensure satisfactory installation. It is believed that experienced co ntractors may well entirely obviate or minimize the need for any civil/ building s modification. 3.1.5 Bidders shall note that in the above works to be executed under this Con tract for an extension to or rehabilitation of existing parts of the Employer’s electricity supply system and their interconnection within Assam. Where the Work s under this Contract, interface with the works of others engaged by the Purchas er under the Assam Power Sector Development Project (APSDP), the Works shall be coordinated with those other works in progress, together with all reasonable coo peration in matters of site access where works are required to proceed in simila r programme timing with other works. 3.1.6 & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. 3.4.0 BIDDING 3.4.1 Each tender shall be accompanied by the following information with suffi cient details to enable the Purchaser to make an appraisal of the quality and su itability of the material and equipment offered. (a) Type Test Certificates. i) Type test certificates of equipment of similar design from an internatio nally or Govt. of India recognised laboratory or certificates of type test carri ed out at own laboratory, if the testing laboratory, has ISO 9000 (or its equiva lent) series certification or in presence of representative from Govt. instituti on or organisation. The Type test certificates should not be more than 5(five) y ears old. Type tests certificates are required for following equipments : . Capacitive Voltage Transformer (CVT) . Wave Trap . Power Supply module of Carrier Terminal and Battery Charger. . Coaxial Cable. ii) Equipment which has never been tested for critical performance shall not be accepted .In such cases, a promise or agreement by a bidder to have the equi pment tested after award of a contract is not acceptable. iii) Test reports to be acceptable must be related directly to equipment offe red. Test reports for a higher class of equipment are acceptable with a commitme nt to perform the type test free of charge on the particular equipment after the contract is awarded. Reports of critical tests conducted earlier than the date specified in the specifications will not be accepted. iv) Type-test reports of the same or similar equipment manufactured by a lic ensor or associated companies are acceptable only if they