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IN THE HIGH COURT OF DELHI AT NEW DELHI - page 18 / 20

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IDFC led consortium, has a 6.68% shareholding in Atlantia, the consortium partner of the Petitioner. 8. Also applicants were to satisfy themselves that they were qualified to bid and were required to give an undertaking in the form of Appendix-I to the RFQ. The undertaking in compliance of Appendix-I was furnished by the Petitioner as well as the consortium comprising Abertis. The undertaking in Appendix-I so furnished clearly provided to the effect that the Petitioner did not have any conflict of interest in accordance with Clause

      • 2.2.1

        (c) of the RFQ document.

  • 9.

    It is further seen that in case of any change in facts or circumstances during

Bidding Process, if any, disqualification in terms of the guidelines was incurred, Petitioner would intimate the NHAI of the same immediately. It was on the basis of

the the this

undertaking that the NHAI shortlisted the applicants as document. NHAI vide its letter of 26th August, 2008

per the provisions of the RFQ shortlisting both the Petitioner

consortium as well as the participation in the stage various provisions of the

consortium comprising the said Abertis clearly provided that of bidding process was subject to continuing compliance to RFQ, as well as provided that provisions of the RFQ would

apply mutatis mutandis to the shortlisting announcement 10. Therefore, we find no merit in the submission on NHAI had waived the disqualification emanating from

and the subsequent bidding. behalf of the Petitioner that the the cross holding by shortlisting

the Petitioner for the RFP of the Petitioner as well as

stage. The NHAI had obviously proceeded in the consortium constituted by Abertis, on the

the qualification basis of the clear

and unequivocal undertakings furnished by both these parties, the RFQ document, to the effect that there was no “Conflict of

in terms Interest”

of Appendix-I of and consequently

no disqualification of the parties in terms thereof. 11. Thus, in our view there was no waiver in fact in the present case. Even otherwise, there could be

of no

the condition of conflict of interest waiver, in view of the provisions of

Clause 2.6.4, which clearly stipulated that, failure to undertake verification of statements, information and documents submitted by the bidder would not relieve bidder of its obligation or liabilities under the terms and conditions of the tender, would it affect any rights of the NHAI in this respect. 12. The submission on behalf of the Petitioner to the effect that they did not know Abertis, which had crossholding of more than one per cent with the partner of Petitioner, namely Atlantia, were to participate in the bid is untenable and also does hold any water. “Conflict of Interest” and cross holding are a matter of fact and it

all the nor

that the not had

nothing to do inadvertently.

with whether the applicants participated in the In other words knowledge of the participation

tender deliberately and/or was irrelevant. What was

relevant was that Abertis had a 6.68% the Petitioner, which fact has not been 13. Further, it is observed that even

shareholding in Atlantia, the consortium partner of disputed by the Petitioner itself. after the shortlisting of the applicants on the 26th

August, 2008, at which point of time “Conflict of Interest” between its partner

the and

Petitioner became aware that the consortium of Abertis led by

there was IDFC, the

Petitioner chose to remain quiet in this respect. It furnished by it, immediately inform the NHAI in became so aware to the time that it filed the RFP

did not, as required by the undertaking this behalf. Right from the time that it in late December, 2008, the Petitioner

wrote clause

letters to the NHAI, bringing to was problematic and that cross

the latter’s notice that the “Conflict of holding should be increased to 10%

Interest” to attract

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