M.KARPAGA VINAYAGAM, J. - (1.) GAIL (India) Limited is the Appellant herein.
(2.) AGGRIEVED by the decision taken by the Petroleum Board (R -1) accepting the technical bid submitted by the 2nd Respondent Gujarat State Petronet Limited, despite such a technical bid not being in conformity with the tender conditions, the Appellant, being the only responsive bid has filed this Appeal.
(3.) THE facts which are relevant leading to the filing of this Appeal are summarised as under: (a) GAIL (India) Limited, the Appellant is a public sector undertaking and is owned and controlled by the Government of India. The natural gas constitutes the core business of the Appellant. The Appellant owns and operates various pipelines networks of over 7650 Kms for transportation of natural gas. (b) The Petroleum and Natural Gas Regulatory Board (Petroleum Board), is the 1st Respondent. This Board has been constituted under the provisions of the Petroleum Natural Gas Regulatory Board Act, 2006 (Board Act) to regulate refining, processing, storage, transportation, distribution, marketing and sale of petroleum products and natural gas etc. in India. (c) In accordance with the Sections 11 and 19 of the Petroleum and Natural Gas Regulatory Board Act, 2006, the Petroleum Board (R -1) has notified the Petroleum and Natural Gas Regulatory Board (Authorising Entities to Lay, Build, Operate, or Expand Natural Gas Pipelines) Regulations, 2008. In terms of the above Act and Regulations, the Petroleum Board is empowered to grant authorisation for laying out natural gas pipelines either on receipt of the application from the interested parties or on suo -moto basis. (d) Gujarat State Petronet Limited is the 2nd Respondent. It is engaged in transportation of natural gas by pipelines. Indian Oil Corporation is the 3rd Respondent. It is also engaged in the hydrocarbon Sector being a Government Company. Hindustan Petroleum Corporation Limited, the Respondent No.4 is also a Company of Government of India engaged in hydrocarbon sector. Respondent No.5, Bharat Petroleum Corporation Limited which is also a Government Company is engaged in hydrocarbon sector. These Respondents 2 to 5 constitute the Consortium. (e) There is a necessity to provide transportation pipeline from Vijaywada in the State of Andhra Pradesh to Vijapur in the State of Madhya Pradesh. So in terms of the Regulations 2008, the GAIL (India) Limited, the Appellant submitted 'Expression of Interest' to the Petroleum Board on 20.11.2008. After receipt of the said Expression of Interest, the Petroleum Board (R -1) announced the commencement of the public consultation process and solicited views from interested entities. In pursuance of the said announcement, the Gujarat State Petronet Limited(R -2) also filed an application giving Expression of Interest for laying down transportation of pipelines from Mallavaram in the State of Andhra Pradesh to Bhilwara in the State of Rajasthan. (f) On 23.10.2009, the Petroleum Board merged both the "Expression of Interest" and floated a common tender for bids from all interested entities for development of natural gas pipelines from Mallawaram (Andhra Pradesh) to Bhilwara (Rajasthan) and Vijaipur (Madhya Pradesh) via Bhopal (Madhya Pradesh) spanning a distance of approximately 1585 Kms with a design capacity of at least 30 MMSCMD. (g) As per the tender, the bid submission date was fixed as 29.12.2009. On 23.12.2009, the Petroleum Board issued addendum to extend the date of bid purchase period upto 23.2.2010 and thereafter extended upto 2.3.2010. Again, another addendum was issued on 8.2.2010 extending the period of bid purchase upto 24.5.2010 and thereafter bid submission date upto 31.5.2010. Again the bid purchase date was extended upto 8.7.2010 and then bid submission date was fixed as 15.7.2010. (h) In the meantime, certain clarifications were sought for from the Board by the parties and accordingly the instructions were issued by the Board. On 15.7.2010, the Appellant as well as the Respondent Consortium submitted the respective bids to the Board. On 28.7.2010, the Board sought for some particulars and documents from the Appellant regarding the bid submitted by it. Accordingly, those particulars and documents were furnished. (i) On 13.8.2010, the Petroleum Board (R -1) called the Appellant for a meeting on 17.8.2010 to discuss certain issues while evaluating the technical bid. Accordingly, the Appellant attended the meeting. In the meantime, the Appellant came to know that the technical bid submitted by the Respondent Consortium was in deviation of the tender terms in many respects. On 30.9.2010, the Petroleum Board conveyed that the technical bid evaluation is under progress and is likely to be finalised in due course and extended the financial bids opening date upto 18.10.2010. (j) At this stage, by the letter dated 8.10.2010, the Petroleum Board declared that (a) the gas injection at any point in the pipelines system including the termination point will be allowed (b) linkage of capacity with volume quoted in the bid shall not be the criteria for selection or rejection of the bid (c) the grant of the authorisation shall be subject to the conditions that various entities shall be required to create minimum 33% of the capacity for own use and for contractual purpose, as common carrier capacity over and above the volume quoted in the financial bids. Through the said letter, the Petroleum Board also informed the Appellant that the Appellant has become qualified in the technical bid evaluation process and the price bids would be opened on 18.10.2010. (k) On receipt of the letter dated 8.10.2010, the Appellant sent a reply letter on 12.10.2010 raising objection to the said declaration contained in the communication dated 8.10.2010 providing for multiple originating points on the ground that this letter contained substantial modifications to the tender terms and conditions subsequent to submissions of the bids by the Appellant and Respondent Consortium; and requested the Board that said declaration through the said letter dated 8.10.2010 should not be given effect to and that the tender should be evaluated based on the original tender terms and conditions. The Appellant also requested the Petroleum Board through this letter not to open the price bid on 18.10.2010 and not to qualify any bid which provides for multiple originating points as declared in the letter dated 8.10.2010. (l) In reply to said letter, the Petroleum Board sent a letter dated 13.10.2010 reiterating the same contents as contained in the letter dated 8.10.2010. In the meantime, the Appellant came to know that the bid submitted by the Respondent Consortium also was accepted by the Board though it was in deviation. Under those circumstances, the Appellant filed this Appeal before this Tribunal on 13.10.2010 as against the decision taken by the Board accepting the bid submitted by the 2nd Respondent and modifying the tender terms through the letter dated 8.10.2010.;