1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3338 OF 2009 ABG Infralogistics Ltd., a company ) incorporated under the Companies ) Act, 1956, having their offices at ) 5th Floor, Bhupati Chambers, 13, ) Mathew Road, Mumbai – 400 004. )... ...Petitioners. Versus The Trustees of the Jawaharlal Nehru) Port Trust, having their offices at ) Admn. Building, Sheva, Tal. Uran, ) Navi Mumbai – 400 707. )... ...Respondent. Mr. T. N. Subramanian, Sr. Advocate, with Mr. R. V. Saagle, Mr. Abhimanyu Singh, Mr. Vinod Kumar i/by Mr. S. Priya for the Petitioners. Mr. G. E. Vahanvai, Solicitor General with Mr.Rajiv Kumar, Mr. F.A.Bhalwal i/by M/s. Vyas & Bhalwal for the Respondent. CORAM : BILAL NAZKI and SMT.V.K.TAHILRAMANI, JJ. RESERVED ON: 6TH APRIL, 2009. PRONOUNCED ON : 8TH APRIL, 2009. 2 JUDGMENT (Per Bilal Nazki,J.) : A request was issued for qualification document in June, 2008 from the respondent for the purpose of developing a stand-alone container- handling facility. The petitioners applied for consideration. The petitioners were disqualified at one stage and they filed a writ petition in this Court being Writ Petition No 6513 of 2008 which was decided on 8th October, 2008. This Court held that the petitioners were eligible to be considered in terms of clause 2.2.3 of the RFQ (Request for Qualification document) and the respondent was directed to consider the bid of the petitioners. Thereafter, it appears that the matter was being processed and the petitioners were directed to give certain clarification by letter dated 21st January, 2009. The petitioners were communicated that on scrutiny of their RFQ submission certain clarifications were needed to be given in terms of clause 2.2.0. In paragraph 2(i) it was stated : "As per clause 2.2.6(g)(iv) of RFQ, the Joint Bidding Agreement should clearly indicate that “the Consortium till the occurrence of the [Appointed Date / Financial Close] under the Concession Agreement be liable jointly and severally for all obligations of the Concessionaire in relation to project”. Kindly indicate in your application where the same has been clearly stated.” There were other clarifications also sought. On 27th January, 2009 the 3 petitioners were informed that the time for giving clarifications has been extended from 28th January, 2009 to 2nd February, 2009. By 31st January, 2009 the petitioners gave the reply and on 12th March, 2009 the respondents informed the petitioners that they have not been short-listed for participation in the bid stage. This order is challenged in this writ petition. 2. Before going to the submissions made by the learned senior Counsel appearing for the petitioner, it will be necessary to refer to certain clauses of RFQ. Clause 2.2.6(g) reads as under: “(g) Members of the Consortium shall enter into a binding Joint Bidding Agreement (the “Jt. Bidding Agreement”) for the purpose of making the Application and submitting Bid in the event of being shortlisted. The Jt. Bidding Agreement shall, inter alia: It has other sub-clauses but sub-clause (iv) is important for the present case, which reads as under: "(iv) Include a statement to the effect that all members of the Consortium shall, till the concurance of the [Appointed Date / Financial Close] under the Concession Agreement be liable jointly and severally for all obligations of the Concessionaire in relation to project.” Clause 2.19.1 and sub-clause (g) lay down: "2.19.1 Prior to evaluation of Applications, the Authority shall determine whether each Application is responsive to the requirements of the RQF. An application shall be considered 4 responsive only if: (g) is accompanied by the Jt. Bidding Agreement (for Consortium), specific to the Project as stipulated in Clause 2.2.6(g).” Clause 2.20 lays down : (i) To facilitate evaluation of Applications, the Authority may, at its sole discretion, seek clarifications from any Applicant regarding its Application. Such clarification(s) shall be provided within the time specified by the Authority for this purpose. Any request for clarification(s) and all clarification(s) shall be in writing. (ii) If an Applicant does not provide clarifications sought under Sub- Clause (i) above within the prescribed time, its Application shall be liable to be rejected. N case the Application is not rejected, the Authority may proceed to evaluate the Application by construing the particulars requiring clarification to the best of its understanding, and the Applicant shall be barred from subsequently questioning such interpretation of the Authority. 3. In the light of this clauses, the learned senior Counsel appearing for the petitioners submits that once the clarifications were sought from the petitioners and clarifications were given, the respondents were bound to consider the materials given in respondents to the notice. Since the respondents have failed to consider the materials supplied, therefore the exercise of rejecting the bid papers of the petitioners would amount to arbitrary exercise of power. He further submits that the petitioners were tried to be ousted even at the earlier stage when the High Court came to their rescue and now the same thing is being repeated. 5 Secondly he contended that there are certain guidelines which require that at least five contenders should be considered in order to eliminate arbitrariness. Now by eliminating the petitioners only two parties remained in the field. Learned Solicitor general, who appears for the respondent submits that the requirement of producing certain documents and materials in terms of RFQ is that they should be produced at the time of filing the application, which is clear from clause 2.19.1(g) of the RFQ and if the letter of 21st January, 2009 is taken into consideration the clarifications sought from the petitioners was that, “Kindly indicate in your application where the same has been clearly stated”. Since on scrutiny when the respondent had not found that the Consortium had taken upon itself the liability of being responsible jointly and severally for all obligations in relation to project, therefore, they were asked to indicate as to whether they have stated so in their application or not. The response of the respondent itself was an admission of the fact that it was not mentioned. They in response in their letter dated 31st January, 2009, inter alia stated as under: "Clause 2.2.6(g)(i) of the RFQ Document states that the Joint Bidding Agreement shall, interalia, “convey the intent to form an SPV with shareholding/ownership / equity commitment(s) in accordance with this RFQ, which would enter into the Concession Agreement and subsequently carry out all the responsibilities as 6 Concessionaire in terms of the Concession Agreement in case the concession to undertake the Project is awarded to the Consortium”. Since the Concession Agreement will be signed with the SPV incorporated under India Companies Act, 1956 as per clause 2.2.6 of the RFQ, and the `Appointed date' and the `Finance Close' will occur only after the Concession Agreement is signed with the SPV, the SPV will undertake all responsibilities including Financial Close or any acts to be done between signing of the Concession Agreement and Appointed Date.” In the said letter, they also annexed an agreement drawn between the Consortium members on 23rd January, 2009. The learned Solicitor General further submitted that the condition of the bid could not be changed after the bids were invited as is settled by the various pronouncements of the Honourable the Supreme Court. Therefore, the petitioners were not responsive on the date when the application was filed. 4. In the light of this submission, we feel that the clarifications were not sought from the petitioner to do some thing afresh or to produce some documents, but only to clarify whether they had stated certain required information in the application itself. 5. Coming to the second argument that there should be at least five bidders, these guidelines cannot be constituted to mean that even if there are not five eligible parties available, even then the respondent should consider the parties who are ineligible only to make the number of bidders as required by the guidelines. 7 6. For these reasons, we do not consider there is any merits in the writ petition, which is hereby dismissed. Sd/- (BILAL NAZKI, J.) Sd/- (SMT.V.K.TAHILRAMANI,J.)