PREM SHANKER ASOPA, J. - (1.) BY this writ petition, the petitioner Cobra Instalaciones Y Servicios, S.A. (in short 'the petitioner - company') is seeking an appropriate writ, order or direction to declare that the petitioner -company possesses the qualifying requirements and technical criteria laid down in Clause 3.00 of Part III of Specification under the caption 'special conditions of contract' and further to allow the petitioner -company to participate in the price bid, with a further direction to restrain the respondent from assigning any contract for 400 KV GSS at Bhilwara or Bikaner (TN 223 and TN 220) to any participant in the price bid for the said contract. Pleadings of The Parties
(2.) BRIEFLY stated, the relevant facts of the case, as averred by the petitioner -company in the writ petition and the rejoinder, are that the petitioner -company company is a multi -national company with its headquarters at Madrid (Spain) having annual turn over of Rs. 9,000 Crores and has executed comparable projects including seven 500 KV sub station in other countries. It is further averred in the writ petition that the petitioner - company has erected first 800 KV line in India measuring 562.5 Km. and has been awarded a similar order worth Rs. 118 Crores by the Rail Vikas Nigam Limited. In mid of May, 2007, the respondent invited separate tenders for construction of 400 KV Grid Sub Station (GSS) at Bhilwara, Bikaner, Hindaun, Barmer and Jaisalmer out of which the present controversy relates to the disqualification of the petitioner -company for technical bid of Bikaner and Bhilwara. The other relevant dates are : on 5.12.2007 and 7.12.2007, the technical bids for GSS Bhilwara and Bikaner respectively were opened; on 5.12.2007, the respondent sent a letter pointing out alleged short coming and description regarding the bank guarantee and asked the petitioner -company to do to needful, compliance where of was made by the petitioner -company; on 18.12.2007, the respondent again sent two communications to the petitioner -company pointing out the alleged other short -comings/deviation in respect of technical nature said to have been covered by Part -III Clause 3.1(a) and Clause 3.2(h), (j), (k), (I) and (m) of the tender. The respondent also called upon the petitioner -company to make confirmation in respect of the Commercial Part and Technical/Financial Part No. shortcoming was pointed out nor any clarification was sought in respect of Clause 3.2(i), therefore, the petitioner -company presumed that it fulfilled the requirement of Clause 3.2(i); on 24.12.2007, the petitioner -company conveyed the requisite clarifica tion and documents as mentioned in the said communication dated 18.12.2007; on 31.12.2007, pursuant to the meeting held between the parties, the petitioner -company submitted further written confirmation in respect of various financial and technical aspects of the bid; till 15.1.2008, out of the ten bidders, only five bidders including the petitioner - company, had submitted relevant and necessary documents in respect of the tender. Yet the respondent called upon and permitted two tenders namely M/s. Tata Projects, Hyderabad and M/s. Techno -Electric and Engg. Co. Kolkata to submit documents relating to technical qualifications but the petitioner -company was not called to clarify and bona fide doubt in this regard; on 21.1.2008, upon learned that other bidders had been informed about the confirmation of price bids and had been requested to participate therein whereas the petitioner -company had not received any such information, the petitioner -company submitted a detailed representation; on 23.1.2008 the representative of the petitioner -company also met the concerned official including the Chief Engineer and in this meeting also, the respondent did not spell out any cogent reason for not considering the petitioner - company's bid except stating that the petitioner -company is a foreign company; on 25.1.2008, the financial bids of other bidders were considered by the respondent and the financial bid of the petitioner -company was not considered. Thus, the petitioner -company's financial bid for two projects at Bikaner and Bhilwara were not considered, the petitioner -company approached this Court by filing the present writ petition.
(3.) THE respondent -government company has filed reply to the writ petition and admitted that the tenders were called under two part bidding system i.e. technical bid and price bid and as per Clause 3.2 (i) the petitioner -company does not have the qualification and experience of key personnel to carry out the work which includes experience of 15 years' in executing such contracts of comparable nature including not less than 5 years' experience as Manager, with the further averment that it is not admitted that the petitioner -company was not considered for price bid for the sole reason that its head office is outside India. The petitioner -company did not fulfil requirement of Clause 3.2(i) of the technical criteria which is an essential condition and could not be ignored, in reply to para Nos. 4 and 7 of the writ petition.;