ARIJIT PASAYAT, J. - (1.) LEAVE granted.
(2.) THESE three appeals are directed against the judgment of the Delhi High Court disposing of two writ petitions being W.P.(C) No. 6792/2008 and 6419/2008. The first writ petition was filed by GMR Infrastructure Ltd. and another, and the latter writ petition was filed by Madhucon Projects Pvt. Ltd. and another. The National Highway's Authority of India (in short 'NHAI') had indicated to the writ petitioners in each writ petition that the writ petitioner was not eligible to participate in the second stage of the bid process. The tender in question related to design, engineering, construction, development, finance operation and maintenance of Hyderabad Vijaywada Section of the National Highway (NH-9) from KM 40.00 KM 221.500 in the State of A.P. under NHDP Phase IIA on Build, Operate and Transfer basis. Factual situation is almost undisputed. There were 19 bidders and two of them were non-responsive leaving 17 bidders in the field. There are two stages in the evaluation according to points scored method. The initial stress is on financial stability and technical competence and experience. The modalities for short listing of bidders is covered by clauses 2.21 and 3.5.2. The latter clause reads as follows: "The Applicants shall then be ranked on the basis of their respective Aggregate Experience Scores and short-listed for submission of Bids. The Authority expects to short-list upto 5 (five) pre-qualified Applicants for participation in the Bid Stage. The Authority, however, reserves the right to extend the number f short-listed pre-qualified Applicants ("Bidders") upto 6 (six)." Placing reliance on clause 3.5.2 originally six persons were short listed. They were as follows: JUDGEMENT_393_TLPRE0_2009Html1.htm It appears that Central Government had in purported exercise of power under Section 33 of the National Highways Authorities of India Act, 1986, (in short the 'Act') imperated transparency in the process of evaluation and in fact re-evaluation was done in which the following six bidders were short-listed: JUDGEMENT_393_TLPRE0_2009Html2.htm
(3.) UNDISPUTEDLY a Committee was appointed to work out the modalities of the evaluation process. Challenge in the writ petitions was to the permissibility to apply Section 33 of the Act to individual tender process, as according to the writ petitioners it was exercisable only in respect of the policy matters and to that limited extent direction can be given by the Central Government. The High Court apparently has accepted this stand of the writ petitioners. Learned counsel for the appellants in each case submitted that the materials, which would have shown that the appellant in each of the appeals is eligible to be short- listed, have been allegedly kept out of consideration thereby making them ineligible. It is also submitted that two of the bidders (Maytas Infra Limited Nagarjuna Construction Company Limited-China Railway 18 Bureau Corporation Limited and Madhucon Projects Limited-Galfar Engineering and contracting S.A.O.G. sutanate of oman-Wade Adams (Middle east) Limited Dubai, UAE-SREI Infrastructure Finance Limited) do not have clean records and therefore their bids ought not to have been accepted when the stress is on transparency. It is pointed out that if these two are to be kept out of consideration, the appellants will have to be included amongst the six short-listed bidders.;