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IN THE HIGH COURT OF DELHI AT NEW DELHI - page 4 / 20

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Petitioner submitted an undertaking before the NHAI stating therein that the Petitioner did not have any “Conflict of Interest” in accordance with the above Clause 2.2.1(c) of the RFQ document. (j) The RFP document contained a similar provision pertaining to “Conflict of Interest” as herein below: “2.1.14 A Bidder shall not have a conflict of interest (the “Conflict of Interest”) that affects the Bidding Process. Any Bidder found to have a Conflict of interest shall be disqualified. In the event of disqualification, the Authority shall forfeit and appropriate the Bid Security or Performance Security, as the case may be, as mutually agreed genuine pre-estimated compensation and damages payable to the Authority for, inter alia, the time, cost and effort of the Authority, including consideration of such Bidder’s proposal, without prejudice to any other right or remedy that may be available to the Authority hereunder or otherwise. Without limiting the generality of the above, a Bidder shall be

considered to have a Conflict of Interest that affects the Bidding Process, if:

(i)

such Bidder (or any constituent thereof) and any other Bidder (or any constituent

thereof) have common controlling shareholders or other ownership interest; provided that this qualification shall not apply in cases where the direct or indirect shareholding in a Bidder or a constituent thereof in the other Bidder(s) (or any of its constituents) is less

than 1% of its paid up and subscribed capital; or (emphasis ours)

  • (ii)

    a constituent of such Bidder is also a constituent of another Bidder; or

  • (iii)

    such Bidder receives or has received any direct or indirect subsidy from any other

Bidder, or has provided any such subsidy to any other Bidder; or

(iv)

such Bidder has the same legal representative for purposes of this Bid as any other

Bidder; or

(v)

such Bidder has a relationship with another Bidder, directly or through common

third parties, that puts them, in a position to have access to each others information about,

or to influence the Bid of either or each of the other Bidder; or

(vi)

such Bidder has participated as a consultant to the Authority in the preparation of

any documents, design or technical specifications of the Project.”

All the shortlisted bidders were required in terms of the RFP documents to submit another undertaking as contained in Appendix 1 to the RFP document wherein the bidder had to declare that they did not have any “Conflict of Interest” in accordance with Clause 2.1.14 and 2.1.15 of the RFP document. In terms of the above requirement, even the Petitioner submitted an undertaking before the NHAI clearly stating that it did not have any “Conflict of Interest” as provided in Clause 2.1.14 of RFP document. (k) In the meantime before submission of the bid the Petitioner wrote a letter dated 8th October, 2008 to the NHAI with regard to Clause 2.1.14 of the RFP and inter alia pointed out that a similar clause had posed problems in the bid for re-development of New Delhi Station in the tenders invited by Indian Railways. It was brought to the notice

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