That the Petitioner had no “Conflict of Interest” with other three Bidders who
have submitted their bids.”
The Petitioner was orally informed in the meeting between the Chairman of
NHAI and the representative of the Petitioner company held on 23rd February, 2009 that the Petitioner’s bid was rejected. In the meantime by the impugned letter dated 20th February, 2009 addressed to the shortlisted bidders NHAI informed the shortlisted bidders that it had decided not to accept the bid of the Petitioner who had quoted the highest price due to non-adherence of the requirements of the RFP. NHAI further, in terms of Clause 3.3.3 of the RFP, requested the said bidders to match the bid of the Petitioner. The NHAI in the said letter stated that all the bids which will be received in the “second round of bidding” would be opened at 1130 Hours on the 27th February, 2009 in the presence of the bidders who choose to attend. 3. Mr. Mukul Rohtagi, learned senior advocate appearing on behalf of the Petitioner made the following submissions. His first submission was that the condition with regard to the “Conflict of Interest” had been waived by the NHAI, since the Petitioner had already been shortlisted for the second stage. The second submission was that the conditions stipulated in the RFQ and the RFP are not mandatory and that the same should be read down so as to be read pragmatically. Mr. Rohtagi’s third submission was that the Petitioner at the time of applying for the request for qualification was not aware of the fact that, Abertis which held 6.68% share in Atlantia, the Petitioner’s partner, was one of the members of the consortium that had also applied in response to the RFQ. Further, it was contended by the Petitioner that the principles of natural justice had not been followed by the NHAI, inasmuch as, the Petitioner had not been informed of its disqualification prior to the remaining bidders being called to participate in the second round of bidding. The last submission made on behalf of the Petitioner was that since the consortium of which Abertis was a constituent did not participate in the second stage of bidding and did not submit its financial bid, therefore, the Petitioner consortium did not
incur any disqualification at the stage of the RFP.
On the other hand it was urged on behalf of the NHAI by Mr. Prag P. Tripathi,
learned Additional Solicitor General, that the Petitioner had furnished an undertaking alongwith the RFQ to the effect that the Petitioner did not suffer from any conflict of interest inviting disqualification, and since the NHAI had proceeded on the basis of that undertaking furnished on behalf of the Petitioner, there was no question of there being any waiver. It was next urged on behalf of the NHAI, that the Supreme Court had clearly laid down that, the clauses of the terms and conditions of a tender have to be read in a pedantic manner and cannot be read down so as to be read pragmatically, as was sought to be urged by the Petitioner. It was next contended on behalf of the NHAI that even after the Petitioner consortium and the consortium of which Abertis was a constituent were shortlisted after the first stage, at no point of time did the Petitioner, as required by the terms and conditions of tender, inform the NHAI that it had incurred disqualification resulting out of the share holding of Abertis in Atlantia, the consortium partner of the Petitioner. It was therefore urged on behalf of the NHAI that the erroneous undertaking furnished by the Petitioner amounted to a material misrepresentation that rendered it liable for disqualification. It was lastly urged on behalf of the NHAI that, upon coming to