Thdc India Ltd vs Voith Hydro Gmbh Co. & Anr

5. Before we take up the issue for consideration, a short resume regarding the progress (?) would be worth seeing. The notice inviting tender on the prime turn-key execution was issued on 31.8.2007. Bids were received on 29.12.2007 in all from four companies, the respondents being a part of them. After opening the pre-qualification bids, two of the tendering parties were found to be dis-qualified leaving only the two respondents in the fray. On 15.1.2009, financial bids were opened in respect of the offers made by the two respondents. Obviously, on the basis of the fact that offers of the two respondents were found to be responsive, respondent No.2 approached the Court by way of a writ petition challenging the validity of the two bids submitted by respondent No.1. The High Court of Uttarakhand issued a stay order and ultimately on 29.6.2009 though it held that the objection raised by respondent No.2 against respondent No.1 regarding its lack of experience was not valid, the bidding documents themselves were not clear as to the manner in which the bids were to be made. It, therefore, directed the appellant to invite fresh bids. Special Leave Petition No.15779 of 2009 came to be filed before this Court and the respondent No.1 also filed an intra-court appeal being Appeal No.131 of 2009 before the High Court of Uttarakhand. With 4 the sole objective of giving quietus to the issues and to provide the motion for the project, this Court transferred the said appeal filed by respondent No.1 and tagged it along with the Special Leave Petition. Since the Attorney General had offered to abide by the operative order of the High Court, this Court directed the appellant herein to invite fresh price bids by its order dated 11.09.2009. Thus, bids were examined by the appellant and it was found that the bid filed by Alstom, respondent No.2 was substantially lower. However, there were certain deviations in the fresh bids offered by the respondent. Respondent No.2, therefore, objected to the report dated 8.11.2009 and took exceptions to some of the observations and insisted that there were no deviations in the techno- commercial part of the bid. By their another letter dated 16.1.2010, respondent No.2 again reiterated their objections and insisted upon the grant of contract in their favour. In order to maintain transparency and objectivity, the appellant offered to send the fresh bidding process for consideration by a panel of experts of national repute. They were to examine objections raised by the consortium of respondent No.2. They submitted their report on 8.2.2010 and observed that the fresh bid of M/s Alstom was non-responsive. In this backdrop, the Court heard both the parties as also the appellants all over again and ultimately passed an order on 26.03.2010.

8. What followed thereafter is more interesting. On 17.4.2010, detailed written submissions file by both the respondents before the panel of experts wherein respondent No.2 pointed out that there were several technical deviations in the bid of M/s Voith which were not considered so far by the appellant. Several technical issues were raised and it was pointed out that the bid of M/s Voith was not in accordance with the technical requirements. It was stated that the bid of M/s Voith, respondent No.1 had more than 40 commercial deviations and more than 90 technical deviations. It was, therefore, requested that panel of experts should look into the above referred matters and to look into all these aspects including the deviations of the bidding on the part of the respondent No.1. This was reiterated by subsequent letter dated 27.4.2010. On 29.4.2010 after going into the details of the contentions raised by both respondent Nos. 1 and 2 the panel of experts went into the details regarding the deviations and non- conformities in M/s Alstom, respondent No.2's fresh bids but did not give any finding regarding the deviations pointed out by it in respect of respondent No.1, M/s Voith. It, however, expressed in the following terms: 8

commercial bids including all earlier letters sent by both the respondents were referred to. The report of the panel of experts was also referred to. It was stated that the techno-commercial offers of both the bidders were reviewed at length and it was decided to invite fresh price bids from both the bidders. The letter went on to clarify that these bids were invited in two stages. In the first stage both the bidders were required to convey their unqualified and unconditional compliance with the employer's requirements with respect to the shortcomings observed in their respective bids, so as to resolve all the inconsistencies and thereby ensuring compliance with the tender conditions (In terms of the annexure 1A for consortium of M/s Alstom and annexure 1B for the consortium of M/s Voith). It was clarified that subsequent to such unqualified and unconditional confirmation by the respective bidders, the bidders were to put their fresh price bids in the second stage. Seven pre-conditions were then put and it was clarified that the stage of price bidding i.e. regarding 1 the un-conditional compliance the bidders were to submit the documents latest by 7.1.2011, 4 p.m. IST. The validity of the bid was limited to 180 days from the date of submission of the fresh price bid.

12. This letter dated 21.12.2010 was challenged by the respondent No.1 by way of a writ petition No.212 of 2011. But before that respondent No.1 had addressed a letter to the compliance dated 24.12.2010 that inviting fresh price bids was not in accordance with the bidding documents and was contrary to the legal position. In that letter it was stated that it reserved the right to challenge the decision to invite fresh price bids and therein also sought time on any day after 18.01.2011 to seek certain clarifications in respect to the THDC's letter dated 21.12.2010. It also sought for extension of the compliance of first stage of price bidding. This request of extension was acceded to by the appellant THDC and it fixed a meeting on 19.1.2011. In the letter sent by THDC dated 4.1.2011 THDC refuted the contention raised by respondent No.1 regarding the invitation of fresh price bids. Yet another objection was raised by a letter on 15.1.2011 on behalf of respondent No.1. for inviting the fresh price bids. In addition to this notice, fresh report of the panel of experts dated 29.4.2010 and further recommendations/reports of the tender committee were also sought for. The meeting took place on 19.1.2011 when in addition to the appellant THDC officials, representatives of respondent Nos.1 and 2 were present 1 wherein the same stand was allegedly reiterated by respondent No.1. A further letter dated 20.1.2011 was sent by the respondent No.1 calling upon THDC:

27. The appeal succeeds. The order of the Uttarakhand High Court granting stay is set aside. The parties will now proceed to submit their price bids in the light of the observations made by us. The said price bids shall be submitted within three weeks from the date of this judgment. THDC (appellant) shall take the decision in respect of the grant of the contract within three weeks thereafter. With these observations, the appeal is disposed of. No costs.

March 17, 2011.