BARIN GHOSH,.J. -
(1.) THESE two appeals have been filed challenging a common judgment
and order dated 8th November, 2010 passed by a learned Single Judge,
whereby the writ petition filed by Reliance Infrastructure Ltd.
(hereinafter referred to as 'Reliance) has been partly allowed and,
thereby, the order passed by the State of Uttarakhand (hereinafter
referred to as the 'State) in awarding Hydro Electric Power Project,
Mapang Bogudiyar, in favour of the consortium of GVK Industries Ltd.
(hereinafter referred to as 'GVK) and Larsen & Tubro Ltd. (hereinafter
referred to as 'L&T), has been quashed and the prayer of Reliance for
quashing the order passed by the State in awarding Hydro Electric Power
Project, Bogudiyar Sirkari Bhyol, in favour of the said consortium, has
(2.) IN the appeal preferred by GVK, where L&T is a respondent, quashing of the order passed by the State in awarding Hydro Electric
Power Project, Mapang Bogudiyar, has been challenged. In the appeal
preferred by Reliance, in addition to challenging the refusal to quash
the order passed by the State in awarding Hydro Electric Power Project,
Bogudiyar Sirkari Bhyol, Reliance has challenged the refusal to issue a
mandamus upon the State to award Hydro Electric Power Project, Mapang
Bogudiyar, in favour of Reliance.
(3.) FACTS to which there appears to be no dispute are as follows: i. The State identified hydro power potential of about 15,000 MW.
Of the said potential, generating capacities of about 1100 MW have
already been established. Projects totaling a capacity of about 7900 MW
are in the pipeline. In order to harness hydro power potential to the
maximum and in the shortest possible time, the State came up with a
policy on 19th October, 2002. The said policy envisaged private sector
investment in hydro projects ranging from 0 to 100 MW. To attract private
investment for development of projects of the capacity larger than 100
MW, the State announced yet another policy also on 19th October, 2002.
The salient features of the said policy, for the purpose of the present
appeals, are as follows:
a. The State will invite proposals from private sector investors for development of identified sites. B. For each identified site, which will be notified by the State from time to time, there shall be a pre -qualification selection of the bidders based on their past experience and financial and technical capacity. The applicants qualifying in the pre -qualification selection will be eligible for competitive bidding. Each attribute set for pre -qualification will be evaluated. Guidelines for evaluation and the passing score on attribute required for pre -qualification shall be specified at the time of inviting proposal for pre -qualification. C. Project identified by the State shall be advertised for inviting international bids. D. Project will be allotted to the highest bidder. E. After the allotment, the allottee shall have to sign a project development agreement with the State within the period fixed by the State (three months) for preparation of Detailed Project Report (DPR) within a prescribed timeframe. After the DPR is accepted / approved by the State, the allottee shall have to sign an implementation agreement with the State, which shall inter alia include time schedule for getting necessary legal/ administrative/technical approvals, financial closure, construction/ commissioning etc. of the project. F. In the event of inability of preparing a viable DPR or getting legal/administrative/technical approvals after the completion of the above -mentioned fixed period, the project will revert back to the State and the allotment shall be treated cancelled automatically, in which case, no compensation will be payable to the allottee and the amount paid by the allottee shall vest in the State. Ii. Subsequent thereto, the State identified potentials of the following projects under the said policy dated 19th October, 2002 having capacity larger than 100 MW: a. Kalika Dantu - 230 MW b. Mapang Bogudiyar - 200 MW c. Bogudiyar Sirkari Bhyol - 170 MW d. Urthing Sobla - 340 MW e. Badrinath (Alkananda) - 140 MW iii. The State, thereupon, appointed Uttaranchal Jal Vidyut Nigam Ltd. (hereinafter referred to as 'UJVNL) as the nodal agency to receive and process offers in respect of the aforementioned five projects. Iv. In February, 2004, UJVNL issued an international notice inviting Request for Qualification (hereinafter referred to as 'RFQ). The salient features of the said notice, for our purpose, are as follows: a. Selection process is envisaged with Stage I comprising pre -qualification and Stage II comprising submission of financial bid. B. Qualification will be based on the applicants ability to meet the requirements including experience, technical capabilities and financial standing as demonstrated in RFQ submitted by the applicant. Only eligible qualified bidders under the said procedure will be invited to participate in the Stage II of the selection process. C. Interested bidders may obtain a copy of the RFQ document during 1st March, 2004 and 3 1st March, 2004. v. RFQ document, while incorporated the aforementioned policy, provided, amongst others, as follows: a. Invitations to bid are sought from private sector investors, which include a company or a consortium of companies or a corporation, and of Indian or foreign origin, or joint venture of such entities, who may individually or jointly commit to implement the projects. B. Selection procedure is comprised of two stages, the first stage is the pre -qualification stage consisting of submission of application in response to RFQ for projects by the bidding firm/consortium and evaluation of the same; in the second stage, Request for Proposal (hereinafter referred to as 'RFP) document for each project would be issued to pre -qualified bidders, who would submit their financial bids in response to the RFP document. Those bids will be evaluated to select the preferred bidder for development of the specific project. C. Allotment of the project shall be as per the policy as above. D. A project briefing meeting will be held with the interested parties in April, 2004 to answer their queries relating to the projects. E. Applicants, in order to be eligible bidders, should comply with, amongst others, the stipulation that an individual applicant or a member of a particular consortium cannot be a member of any other consortium applying for the same project and would be required to nominate one of the members of the consortium as the lead partner and that the lead partner shall not have less than 26 per cent equity in the proposed generating company and also that the members of a consortium shall enter into a Memorandum of Understanding for the purpose of the application, which shall be valid till the allotment of the project. F. At any time, prior to the deadline for submission of the application, UJVNL may, for any reason whether at its volition or in response to clarifications requested by applicants, modify the RFQ document by issuance of an addendum and any addendum, thus issued, will be sent in writing to all parties, who have purchased the RFQ document. G. A substantial bid is one, which conforms to all the terms and conditions and specifications of the bidding document, without material deviation or reservation, and a material deviation or reservation is one, which affects, in any substantial way, the scope of the qualification criteria; contains details, which are inconsistent with the requirements of the bidding document; or the rectification of which would affect unfairly the position of other bidders presenting substantially responsive bids. H. If a bid is not substantially responsive, it will be rejected and may not subsequently be made responsive by correction or withdrawal of the non -conforming deviation or reservation. i. Evaluation would be made on the basis of technical strength, project development experience and financial strength. Financial strength will be based on assessment of the bidders regarding their ability to raise equity and debt for the project and their experience in arranging equity/loans either internally or from capital markets and the financial institutions/banks. J. The bids for technical strength and project development experience parameters would be evaluated only if the hurdle criteria for financial strength, as detailed in Section VI (Clause 6.4.3) is cleared. K. The bidder shall be required to secure a minimum threshold of 50 per cent points in aggregate, in technical strength and project development experience, for qualifying. L. Any change in the composition of a consortium may be permitted only till the last date of submission of RFQ documents and no change is permitted till the allotment of the project(s). M. An individual applicant or member of a consortium, if is also a member of any other consortium applying for the same project, will be disqualified. N. RFQ due date is 1600 hours of 15th May, 2004 and opening of RFQ bids is 1100 hours of 17th May, 2004. o. To assess the financial strength of the bidder/consortium member(s), bidders shall submit details in format IV -A and full names and addresses of all bankers and financial institutions with whom bidder/ consortium member(s) deal should be enclosed as per format IV -B and, at the same time, bidder/consortium member(s) should fill the questionnaire regarding financial strength as per format IV -C. P. The evaluation of bids shall be done in two stages, first stage comprising of responsiveness and the second stage comprising of qualification - technical, project development experience and financial. Q. Bids for technical strength and project development experience parameters would be evaluated only if the hurdle criterion for financial strength, as detailed in Clause 6.4.3 (of RFQ) is cleared. R. Bidders shall be evaluated on a point system comprising of a total of 100 points, of which, 25 points have been assigned to technical strength, 25 points to project development experience and 50 points to financial strength. S. In case of consortium, the technical and project development capability shall be judged on the basis of arithmetic sum of all the proposed partners; whereas the financial capability shall be judged on the basis of arithmetic sum of all the proposed partners provided their individual equity in the consortium is more than 10 per cent and the net worth and aggregate net cash accrual of the lead partner should not be less than 26 per cent of the net worth and aggregate net cash accrual of the consortium.
]T. Clause 6.4.3 of RFQ is as under:
"6.4.3 The Bidders are required to meet the following minimum
criteria for financial strength in respect of each project/combination of
projects for further evaluation as mentioned in Clause 6.1.3 above:(Rs.
Sl. ProjectDescription Net Worth of the Aggregate* Net Cash
No. Bidder/consortium Accrualsof the bidder /
for 2002 -03 consortium
1 Kalika Dantu 3450 1725 2 MapangBogudiyar 3000 1500 3 BogudiyarSirkari Bhyol 2550 1275
Urthing Sobla 5100 2550;