Case: Afcons Infrastructure Ltd Vs. Nagpur Metro Rail Corporation Ltd.

2. Bids were invited by NMRCL for the design and construction of a viaduct in Reach-3 between Jhansi Rani Square and Lokmanya Nagar Stations from CH 7825M to CH 18212M on the East-West Corridor of Nagpur Metro Rail Project.3. GYT-TPL JV gave its bid for the contract but NMRCL, by an e-mail dated 23rd July, 2016 communicated to GYT-TPL JV that its bid was disqualified at the technical bid opening. The comment/remark relating to the disqualification stated that the documents submitted by GYT-TPL JV do not meet the eligibility conditions as stipulated in Clause 4.2 (a) of Section III of the bid documents.4. The controversy on the eligibility of GYT-TPL JV arises in view of Clause 4.2 (a) of Section III of the tender conditions which reads inter alia as(a)Specific Construction & Contract Management experienceA minimum number of similar contracts specified below that have been satisfactorily completed as a prime contractor, joint venture member during last 10 (ten) years i.e. up till 31.05.2016(a) Should have received minimum INR 3200 Million from 1 contract in a metro civil construction work and should have completed viaduct length not less than 5 km in the same contract.According to GYT-TPL JV, it had executed the Pearl River Delta intercity high speed railway project in China; it had received INR 3200 million from that project and it had constructed a viaduct of 7.284 km length under that contract. Before the High Court and before us, there was no controversy that GYT-TPL JV had received a minimum of INR 3200 million from its Pearl River Delta Intercity High Speed Railway Project and that whether it had completed a viaduct having a length of not less than 5 km. The sole question before the High Court was whether the Pearl River Delta Intercity High Speed Railway Project met the requirement of a ‘metro civil constructionAccording to NMRCL, an inter-city high speed railway project did not meet the requirements of a metro civil construction work.6. The High Court disagreed with NMRCL in the followingcivil construction work completed by the petitioner [GYT-TPL JV] in terms of condition no. 4.2 (a) was for an intercity high speed railway project in China and in the said contract, the petitioner had completed a viaduct of 7.284 km length….The petitioner has admittedly constructed a viaduct of not less than 5 km for the prestigious Pearl River Delta Intercity high speed railway project in China. We find on a reading of the tender conditions and particularly clause 4.2(a) thereof that a contractor or a joint venture company is required to have the experience in Metro Civil Construction work and of completing a viaduct having a length of not less than 5 kms. We do not appreciate the submission on behalf of the respondent that since the petitioner had constructed the viaduct for a high speed railway project, the petitioner would not have the experience of constructing a viaduct for a metro. It is not disputed by the respondent thatwould mean a railway or an underground railway. If that be so, we fail to fathom as to why the technical bid of the petitioner was disqualified though the petitioner has constructed a viaduct for Pearl River Delta Intercity high speed railway project in China of the length of 7.284 km. In our view, the petitioner has the experience of constructing a viaduct of not less than 5 kms. in length in a Metro Civil Construction work contract and had also received more than INR 3200 million for satisfactorily completing the said contract. The distinction sought to be made by the respondent NMRCL between the construction of a viaduct for Intercity High Speed Railway Project and the construction of a viaduct for the metro rail project, is illusory and not real. The action on the part of the NMRCL of disqualifying thetechnical bid is clearly arbitrary and is liable to be set

Reasoning:
16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before thisfind merit in the appeals filed by the appellants and set aside the judgment and orders passed by the High Court and restore the decision of NMRCL to the effect that GYT-TPL JV was not eligible to bid for the contract under consideration.