V.S. Sirpurkar, J. - (1.) Leave granted in SLP (C) Nos. 15779 and 19890 of 2009.
(2.) These appeals emanate out of the order passed by the learned Single Judge of Uttaranchal High Court. On 31st August, 2007, the appellant herein invited bids for turn- key execution of the Tehri Pump Storage Plant, Phase-II. After the pre-bid conference and amendments four pre-qualification bids were submitted on 29th December, 2007 by respondent No. 1 - Alstom Hydro France, Patel Engineering, Sumitomo Corporation, Japan and Voith Seimens as leaders of their respective consortia. Initially respondents 1 and 2 along with Sumitomo Corporation, Japan were qualified, however, subsequently the bid of Sumitomo Corporation was declined as non-responsive. Thus there were two parties in the fray, they being respondents 1 and 2 herein. These two gave two price options. However, respondent No. 1 filed a Writ Petition being W.P. No. 167 of 2009 in the Uttarakhand High Court on two grounds, namely, (a) that respondent No. 2 was not technically qualified; (b) that respondent No. 2 had submitted two price bids which was in contravention of the terms and conditions of the ITB. The High Court by its final judgment came to the conclusion that the respondent No. 2 was qualified. It was further held that there was no violation of terms and conditions of ITB. However, the learned Single Judge passed the following order by way of final directions: Consequently this Court holds as follows: The qualifications of respondent No. 2 for having done the work of 'erection' at Ghangzhou II seems to be in order as this Court holds 'supervision of erection' as equivalent to that of 'erection' and rejects the arguments of petitioner on the eligibility of respondent No. 2. Further, under the facts of this case, if two price bids had been invited by the employer - one as an assignee and the other as a partner, then again there is nothing wrong in such an approach and if consequent to it two price bids have been given by respondent No. 2- one as an assignee and the other as a partner, it is in order and will not be called as a non-responsive bid. However, since the process of calling two bids is flawed for lack of clarity, the benefit has to be given to the petitioner, for the reasons already stated above. Hence, it is directed that respondent No. 1 must ask for fresh bids from the petitioner as well as respondent No. 2. Being aggrieved the appellant herein filed the present appeals.
(3.) As it appears from the appeal filed by Tehri Hydro Development Corporation, the appellant assails the direction of the learned Single Judge to issue fresh bids as it was bound to further delay the project which was already delayed for six months only because of the pending proceedings. A contention was also raised that the fresh bidding was directed without offering any protection to the appellant herein against cartelization. It was, therefore, apprehended that the two multinational corporations, they being respondents 1 and 2 in the appeal filed by Tehri Hydro, as leaders of the Consortia could possibly get together and submit revised reduced bids which would not be in the public interest. The criticism by the learned Single Judge in the impugned judgment to the effect that there was no clarity on the issue whether two price bids could be submitted was also assailed on various grounds. It was pointed out that the price options of the respondent No. 1 were at Rs. 2520.60 crores while after discount it was at Rs. 2483.80 crores. The price options of the respondent No. 2 was at Rs. 2327.50 crores as assignee and under Clause 9.4.4(v)(e) as a partner it was Rs. 2261.60 crores and thus the respondent No. 2 was the lowest bidder. According to the appellant this fact was completely lost sight of by the High Court.;