- (1.) Leave granted.
(2.) This appeal by special leave is directed against the judgment dated 10/10/1996 of the division bench of orissa High court in Original Jurisdiction Case No. 6457 of 1996. By the impugned judgment the High court has quashed the ultimate decision of Paradip Port Trust in terms of the Resolution dated 23/8/1996 to award the contract to AFCONS, the present appellant, as well as the letter of communication by Paradip Port Trust to AFCONS dated 24/8/1996 and has further directed the Port Trust to effect negotiations with AFCONS, the present appellant as well as the Trafalgar House Construction of India Ltd. who was the petitioner in OJC and respondent 1 herein, giving them opportunity to make fresh offers and then the lowest bidder should be given the award. The High court also further directed that if there cannot be any negotiation within one month from the date of the judgment then the Port Trust will be free to ask for rebidding for the particular project which is the subject-matter of the writ petition. It is not necessary to narrate the entire gamut of facts. Suffice it to state that for construction of wharf intended for creation of mechanised handling facility of coal at Paradip Port the Asian Development Bank at Manila had agreed to give loan to the extent of 134.85 million US dollars and it was intended that a part of this amount would be utilised for the construction of the wharf. The entire project consists of nine major packages and non-completion of any a package would make the entire project unworkable. A pre-qualification notice was issued inviting the offers and then on receipt of the pre- qualification documents those were sent to a committee for evaluation. The consultants submitted their evaluation recommending six firms including the appellant and respondent 1 for the construction of the wharf. The Tender Committee of the Port Trust reviewed the evaluation made by the consultants and recommended the names of all the six firms. The aforesaid evaluation report was sent to the Financial Institution, namely, the Asiandevelopment Bank for obtaining its views. The Board of Trustees of Paradip Port Trust thereafter approved the said six firms and then invited bids by their letter dated 27/9/1995. The last date for submission of bids was 27-12-1995, 11. 00 a. m. Out of the six firms only three firms submitted their bids, namely, the appellant, respondent 1 and one Muhibbah Engineering (M) BHD, Malaysia. In accordance with the prescribed procedure the bids were opened and were processed. After examining all the bids and determination of responsiveness of the bidders three bids were sent to the consultant for evaluation report. The consultant found some discrepancy in the bid documents about the amount of concrete required for pre-cast planks for the wharf deck. The consultants then corrected the error and after making recalculation came to the conclusion that respondent 1 's bid was the lowest. The Tender Committee of Paradip Port Trust accepted the recommendation of the consultants and submitted the same for approval of the Financial Institution, namely, the Asian Development Bank. The Bank by its communication dated 23/4/1996 stated that they are unable to support the approach set out in the Bid Evaluation Report and they cannot accept the proposed bid change in the quantity. The Bank also came to the conclusion that the lowest evaluated substantially responsive bidder is AFCONS, the present appellant, and accordingly recommended that the contract of construction of the wharf be awarded to AFCONS. On receipt of the views of the Bank and since substantial amount of finance was to be given by the Bank as loan the Port Trust again asked their consultants about the earlier bid evaluation. The Special Tender Committee again met on 16/5/1996 and then formulated its views and communicated the same to the Bank on 12/5/19966. The Bank wrote back on 5/6/1996 suggesting that the contract be awarded to AFCONS so that the works can be financed from the loan and if the contract is awarded to anyone else then no loan would be financed and if the Port Trust is inclined to rebid then also there would be no loan from the Bank. The Bank indicated that the suggestions given by the Bank are on due consideration of the practicability of mobilising finance quickly. On receipt of the said response from the Bank the Tender Committee met on 14/6/1996 and then decided to call the appellant to have some clarifications. In the meeting dated 17/6/1996 the appellant appeared before the Tender Committee and responded to the clarifications sought for. The Project Manager addressed a letter on 12/7/1996 stating therein that if the additional commercial information had been available at the time of assessment then the outcome would appear to favour award to AFCONS. It also further stated that completing the bid evaluation and making its recommendation of award to Essar the consultant has done so in a professional and impartial manner based upon the information available at that time. It was further stated that in view of the additional information now available there was no technical barrier or commercial disincentive to award to AFCONS, the appellant herein. But even before the award was made in favour of the appellant. respondent 1 had approached the High court, obviously being aware of the fact that the appellant's bid is going to be accepted and after thefinal award in favour of the appellant by the Board's Resolution dated 3/8/19966, the writ petition was amended seeking the relief of quashing of the award in question.
(3.) The appellant in its counter-affidavit filed before the High court not only denied the allegations made in the writ petition but also submitted that factually all through the bid of the appellant has been the lowest. It was also stated that the consultant had not taken into account the customs duty which was payable while making the evaluation in question. The Paradip Port Trust in its affidavit before the High court had urged that since the loan was to be sanctioned by the Asian Development Bank and the Asian Development Bank did not agree to sanction loan if the contract is awarded to Essar or the contract is rebid, on reconsideration of the entire situation the Port Trust awarded the contract in favour of the appellant. The Port Trust also stated that on receipt of the additional information and taking into consideration the same the Trust was of the view that the award to AFCONS would appear to be acceptable and appropriate. The Port Trust further made it clear that the rebid was not in the interest of the project and not only it would jeopardise the entire loan sanctioned by the Asian Development Bank but there is every possibility of bid being substantially higher.;