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IN THE HIGH COURT OF DELHI AT NEW DELHI - page 5 / 20

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of NHAI that the Railway Land Development Authority under the Ministry of Railways had modified the said clause and accordingly the limit of 1% cross holding was increased to 10%. Since the Petitioner did not receive a response to the letter dated 8th October, 2008, a further letter was addressed by the Petitioner to the NHAI on the 4th November, 2008. Vide this letter the Petitioner once again pointed out to the NHAI that the issue of “Conflict of Interest” as defined under Clause 2.1.14 of the RFP needed to be modified. Further the Petitioner drew the attention of NHAI that the above mentioned cross holding could happen without the knowledge of the bidder since it was not possible to check all such investment in all the constituents at the time of submission of RFQ. On the 18th November, 2008, the Petitioner wrote to NHAI further to its letter dated 8th October, 2008 and 4th November, 2008 with regard to Clause 2.1.14 of the RFP and pointed out that no response had been received from NHAI so far. (l) On 28th November, 2008 NHAI wrote to the Petitioner stating that the Petitioner’s letter dated 18th November, 2008 and other letters on similar issues with regard to the percentage of the common shareholding were under consideration. In the meantime, it informed the Petitioner that the last date of submission of RFP was the 3rd December, 2008 and further stated that in the meantime the Petitioner should abide by the provisions of the RFP document. (m) On the submission of the RFP document the NHAI received representations from rest of the three shortlisted bidders M/s ISOLUX-SOMA-Consortium by way of its letter dated 24th December, 2008, M/s Maytas-China railway 18th Bureau (Group) Corporation Ltd. by way of their letter dated 23rd December, 2008 and M/s HCC John Laing by way of its letter dated 26th December, 2008, representing to the NHAI that the consortium led by the Petitioner had M/s Atlantia as one of its members and consortium led by IDFC as M/s Abertis as a member. It further pointed out that Abertis being part of the consortium led by IDFC had 6.68% shareholding in Atlantia which was part of consortium led by the Petitioner. Having disclosed the above facts the three bidders requested that the bid submitted by the consortium led by the Petitioner and IDFC should be rejected and they may be disqualified from bidding. (n) Before the NHAI could verify from the Petitioner the correctness of the above allegations made by the above three bidders, the Petitioner suo moto by its letter dated 8th January, 2009 addressed to the NHAI clarified the following:- “i. That they were aware of the representations made by the competitors regarding the “Conflict of Interest” and the factum of questioning the participation of the Petitioner.

ii.

Till the time the Petitioner was shortlisted to submit the proposal, they were not

aware of the details of other applicants.

iii.

That they had made representations for modification of the “Conflict of Interest”

Clause in the RFP document to avoid future complication in the Bidding Process.

iv.

That the Petitioner had received the response from Respondent No.3 wherein it

was made clear that the Petitioner should continue to abide by the Clauses of RFP document and that the violation of the clause shall be dealt with as per provisions of RFP

document.

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