1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE - CIVIL WRIT PETITION NO.3847 OF 2009 Mundra Port & Special Economic Zone Limited, a Company incorporated under the Companies Act, 1956 having its regis- tered office at Adani House, Near Mithakhali Circle, Navrangpura, Ahmedabad-380 009. .... Petitioners - Versus - The Board of Trustees of the Port of Jawaharlal Nehru Port Trust, a body corporate constituted under the provisions of the Major Port Trust Act, 1963 as amended by the provisions of the Major Port Trusts Amendment Act, 1974 and having their Bombay Office at 1107, Raheja Centre, 214, FPJ Marg, Mumbai 400 021 and a Container Terminal Office at Nhava-Sheva, Uran, Navi Mumbai, Dist. Raigad. .... Respondents S/Shri R.A. Dada, Senior Advocate with Vikram Nankani i/b Naresh S. Thacker for the Petitioners. S/Shri Rajib Kumar with S.A. Bhalwal i/b 2 M/s. Vyas & Bhalwal for the Respondents. CORAM: BILAL NAZKI & Smt.V.K. TAHILRAMANI, JJ. RESERVED ON : JUNE 18, 2009 PRONOUNCED ON: AUGUST 24, 2009 JUDGMENT (Per Bilal Nazki, J.): 1. This writ petition has been filed challenging a letter dated 20th March, 2009 passed by the respondents. 2. Before coming to the facts of the case, it will be profitable to note that by the impugned letter the respondents have informed the petitioners that they have not been shortlisted for participation in the bid stage. The petitioners contend that the petitioners are a company and have promoted, constructed, operated and maintained the largest private port in India at Mundra, District Kutch, Gujarat and they claim that the Mundra Port has been in operation since 1998 and the total 3 capital investment made by the petitioners in the said Port in the last five years is Rs. 2481.39 crores and for the Financial Year 2008-2009 they are making another addition of Rs.1350/- crores. The net-worth of the company as on 31st March, 2008 was Rs.2609.70 crores. By a tender, the respondents invited applications from interested parties for the development of a Standalone Container Handling Facility with a Quay Length of 330M towards North of Jawaharlal Nehru Port Trust on Design, Built, Finance, Operate and Transfer (DBFOT) Basis. The petitioners submitted the Request for Qualification (RFQ) Document as a consortium consisting of the petitioner-company and Leighton Contractors (India) Private Limited. According to the petitioners, they satisfied all the terms and conditions of the RFQ including the qualification criteria in relation to technical capacity, financial capacity and operation and maintenance 4 experience, not only on individual basis but also as a consortium. They contend that without assigning any reason, the respondents have disqualified the petitioners and not shortlisted the petitioners for participation in the bid stage. 3. In the counter affidavit filed by the Deputy Manager, Port Planning and Development, Jawaharlal Nehru Port Trust, it has been contended that the respondents follow a procedure for awarding contracts based on Government guidelines. The procedure is fair, reasonable and consistent with the public policy. He has stated that by Notification dated 31st August, 2004 the Government of India constituted a committee on infrastructure inter alia with the object of initiating policies that ensure time bound creation or world class infrastructure, developing structures that maximise the role of public private partnership in the field of 5 infrastructure and monitoring progress of key infrastructure project. In May, 2005 the Government of India set up an empowered sub- committee of the Committee on Infrastructure. The Committee was set up to facilitate the functioning of the Committee on Infrastructure. The Government of India also set up a Public Private Partnership Appraisal Committee. The Government of India also by a letter dated 12th January, 2006 circulated the procedure and guidelines to the concerned authorities. As per the guidelines, the Sponsoring Ministry has to identify the project to be taken up through the public private partnerships and the Ministry has to undertake preparations of the feasibility studies, etc.. The guidelines further provide that the administrative ministry may invite expression of interest in the form of Request for Qualification i.e., RFQ to be followed by shortlisting of pre-qualified bidders. In June, 2008 the respondents had 6 invited tenders for the development of a Standalone Container Handling Facility with a Quay Length of 330M towards North of Jawaharlal Nehru Port Trust on Design, Built, Finance, Operate and Transfer Basis. The respondents decided to carry out the bidding process in June, 2008. The proposed bidders were given notice in the tender documents that the facility will have the capacity to handle more than 0.6 TEUS (Twenty-foot Equivalent Units). The total project cost including the development of civil work, cost of equipment, etc., was estimated to be about Rs.600/- crores. It was decided to shortlist the bidders through an open competitive bidding process, as set out in the tender documents which were prepared in line with the Model RFQ documents issued by the Government of India. 4. Twenty three parties purchased the RFQ documents. Nine applicants submitted their bids for the RFQ. One of the bids was rejected 7 as their submission was not as per the tender requirement. The petitioners did not submit the RFQ documents within the parameters and the requirement of the tender documents. Since it was found that there were discrepancies in the documents submitted by the petitioners, by a letter dated 21st January, 2009 the respondents asked the petitioners to give clarification in respect of certain queries raised pertaining to their application. The petitioners responded. But according to the respondents, the statement purported to have been given by way of a clarification did not comply with or met the requirements of the RFQ documents. Now the controversies in the light of these pleadings is very short i.e. whether the petitioners satisfied all the terms and conditions of the tender. This can be appreciated by first pointing out certain clauses of the tender dealing with the qualifications and criteria. The Clause 2.2.2 reads thus: 8 "2.2.2 To be eligible for pre- qualification and shortlisting, an Applicant shall fulfil the following conditions of eligibility: (A) Technical Capacity: For demonstrating technical capacity and experience (the "Technical capacity"), the Applicant shall, over the past 5 (five) financial years preceding the Application Due Date have (i) Paid for or received payments for construction of eligible project(s) and/or (ii) paid for development of Eligible Project(s) in Category 1 and/or Category 2 specified in Clause 3.2.1.; and/or (iii) Collected and appropriated revenues from Eligible Project(s) in Category 1 and/or Category 2 specified in Clause 3.2.1, Such that the sum total of the above is more than Rs.600,00,00,000 (Indian Rupees Six Hundred Crores only) (the "Threshold Technical Capability") Provided that at least one fourth of the Threshold Technical Capability shall be from the eligible project in category 1 and/or category 3 specified in clause 3.2.1. (B) Financial Capacity: The Applicant shall have a minimum 9 Net Worth (the "Financial Capacity") of Rs.150,00,00,000 (Indian Rupees One Hundred and Fifty crores only) at the close of preceding financial year. In case of a Consortium, the combined technical capability and net worth of the members, who have an equity share of at least 26% each in such consortium, should satisfy the above conditions of eligibility. 2.2.3 O&M Experience: The Applicant shall (in the case of a Consortium) include a member having at least 26% (Twenty six percent) equity participation in the Project company/SPV, who has experience of five years or more in operation and maintenance (O&M) of Category / projects specified in Clause 3.2.1, with an aggregate capital cost equal to Rs.600,00,00,000 (Six Hundred Crores). In case the Applicant is not a Consortium, it shall be eligible only if it has equivalent experience on its own. In the absence of such experience, the Applicant shall, for a period of at least 5 (five) years from the date of commercial operation of the project, undertake to enter into an operation and maintenance (O&M) agreement with an entity having equivalent experience, failing which the Concession Agreement shall be liable to termination." 5. After the petitioners submitted the RFQ along with the joint bidding agreement, the 10 respondents responded by an e-mail dated 1st December, 2008. This was replied to by the petitioners and thereafter on 21st January, 2009 the respondents sought further clarification and asked the petitioners to give their clarification by 28th January, 2009. On 24th January, 2009 the petitioners sought time upto 2nd February, 2009, which was granted and the reply was sent on 28th January, 2009. Now these are the two letters which are important for considering the controversy. The letter dated note 21st January, 2009 notes, "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.". In its reply dated 27th 11 January, 2009, the respondents replied in the following words: "Please find attached an Addendum to the Joint Bid Agreement which clarifies that the consortium will be jointly and severally for all obligations of the Concessionaire in relation to project till the occurrence of the (Appointed date/financial closure) under the concession agreement." The learned counsel appearing for the respondents submits that by adding an addendum, the petitioners were adding something to their bidding tender which was not there in the original tender. He further submits that this question has already been considered by this Court in an earlier petition and the Court has held that if any clarification is sought, that would not mean that the petitioners were at liberty to do something afresh or to produce new documents but had only to clarify whether they had stated certain required information in the application itself. Many arguments were made by the learned senior counsel appearing 12 for the petitioners but we feel that on the showing of the petitioners themselves, an addenda was added in reply to a notice for clarification by the petitioners. The learned counsel appearing for the respondents submits that even the addenda does not specify the requirements of the tender notice, but in any case something new was introduced and added. Therefore, we feel that it could not have been done since the petitioners were not eligible on the date they filed the documents and they could not have been considered. In an earlier case being Writ Petition No.3338 of 2009 {ABG Infralogistics Ltd. v. The Trustees of the Jawaharlal Nehru Port Trust}, this Court vide Judgment dated 8th April, 2009, while interpreting the same conditions held, "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 13 information in the application itself." Since the petitioners had not given information in the application with respect to the required information in the application but by way of a clarification had added new documents and new material, they were not qualified. For these reasons, we do not find any merit in the petition which is accordingly dismissed. Sd/- BILAL NAZKI, J. Sd/- Smt. V.K.TAHILRAMANI, J.