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“1. Project Objectives With the Final Alignment Design (FAD) being prepared as part of the Follow-up Study, the objectives of the General Consultancy (hereinafter referred to as “the Study”) are to prepare technical specification and standards (excluding those prepared under the Follow-up study), Basic Design Documents, Standard Design Documents, Detailed Design Documents (along with Design Basis Reports (set of conditions and requirements taken into account in designing) necessary for bidding or implementation of the Project, Bidding Documents, Engineering Cost Estimation and Construction Standard for the Project which are to be adopted by the Ministry of Railways (hereinafter referred to as “the MOR”), to prepare General Arrangement Drawings (hereinafter referred to as “GAD”), Environment and Social Impact Assessment and to support the MOR for procurement of contractors. It is confirmed by the MOR that the drawings and documents to be formulated by the Study will be utilized for procurement of the Project, only after they are adopted and endorsed by the MOR.
3)-2 Assistance in the Bidding Procedure The JICA Consultant(s) will:-
a. assist the MOR in issuing bid invitation, conducting pre-
bid meetings, issuing addendum/corrigendum, and clarifications to bidders' queries;
b. assist the MOR in evaluating bids in accordance with the criteria set forth in the bidding documents;
c. prepare a draft bid evaluation report for approval by the bid evaluation committee of the MOR;
d. assist the MOR in contract negotiation by preparing agenda and facilitating negotiations. including preparation of minutes of negotiation meetings; and e. prepare a draft contract agreement.” 6.6 That the Japan International Consultants Consortium (JICC) was appointed by JICA. That thereafter a loan agreement No.ID-P277 came to be entered into between JICA and the President of India dated 28.09.2018 under which the JICA agreed to lend the Republic of India approximately Rs.1 Lakh Crores on the terms and conditions mentioned in the loan agreement. Article 1 provided for loan amount; Article II provided for repayment, interest and Front-End Fee; Article III provided for Particular Covenants, which included, Section 1 – General Terms and Conditions, Section 2 – Procurement Procedure and Section 3 – Disbursement Procedure. Thereafter the Bidding Documents were prepared based on JICA’s Standard Bidding Documents as well as JICA’s procurement guidelines, which was an integral part of the loan agreement. The Bidding Documents were prepared by the JICC – consultant approved/weighed by the JICA. From the aforesaid, it appears that the entire tender process was to be carried out by the Consultant – JICC, approved by JICA and the Ministry of Railways can be said to be only an implementing agency.
6.7 That thereafter the tenders came to be invited taking into consideration the Record of Discussion for General Consultancy of the Project and Loan Agreement and JICA’s Standard Bidding Guidelines and Guidelines for procurement under the Japanese ODA Loans. The Bidding Documents were prepared by the JICC (consultant) and approved by JICA. That evaluation of the Technical Bids was carried out by JICC (consultant), which was appointed by JICA. At this stage, it is required to be noted that the JICC was appointed in terms of the specific understanding between the Borrower (Republic of India) and JICA with the specific mandate to support the Ministry of Railways for preparation of Bidding Documents including Prequalification Documents and procurement of contractors for the construction of the Project. It is required to be noted that the Bidding Documents were prepared as per JICA’s International Guidelines and as per the terms and conditions of the Loan Agreement as observed hereinabove.

13. Under the circumstances, the High Court has erred in interfering with the conscious decision of the JICC / JICA / appellant / tender committee to reject the Bid submitted by the original writ petitioner at Stage I on the ground that the Bid submitted by the original writ petitioner was suffering from material deviation.

14. Now so far as the view taken by the High Court in the impugned judgment and order that Clause 28 under Clause (e) of Option A Section 1 and Clause 42.5 of ITB are patently illegal, inasmuch as they seek to curtail the right of the bidders to challenge the rejection of their bid in a multi-stage bidding process at the earliest, and before the award of the contract is concerned, at the outset, it is required to be noted that as such the aforesaid clauses of the ITB were not under challenge before the High Court. Even otherwise, it is required to be noted that Clauses 28.1 and 42.5 of ITB were well within the knowledge of the original writ petitioner at the time of participating in the tender process. The aforesaid clauses of the ITB were put to the knowledge of all the participants/bidders and the same applied to all. Despite the above clauses in the ITB, original writ petitioner participated in the tender process. Therefore, once having accepted the terms and conditions of the tender process with the full knowledge of Clauses 28.1 and 42.5, and participated with full knowledge, thereafter, it was not open for the original writ petitioner to make a grievance with respect to such clauses. 14.1 Even otherwise, it is required to be noted that Clauses 28.1 and 42.5 are part of the instructions to the Bidders (ITB) and, therefore, part of the Bidding Document. At this stage, it is required to be noted that loan agreement was materialized after a detailed Memorandum of Understanding and the loan agreement between the two Prime Ministers and how the project would be financed and operated. That thereafter followed by general consultancy of the project discussion, it was culminated into a loan agreement with the specific condition that the terms of the contract and the Bid document shall be finalised and prepared by JICC and approved by JICA. It appears that the contents of the Bidding Document are based on JICA’ Standard Bidding Documents as well as JICA’s procurement guidelines and form an integral part of the loan agreement. It is to be noted that such foreign funded investments in the form of concessional Official Development Assistance (ODA) loan by JICA are made on the basis of non-negotiated terms and conditions, where the sole discretion as to what will be the terms and conditions of the tender and on what terms and conditions the project would be financed, vests with the investor foreign developed nation. Therefore, the impugned judgment and order passed by the High Court on Clauses 28.1 and 42.5 would be altering the terms and conditions of the Bid Document / ITB, which as such were finalized and approved by the JICC/JICA and which were provided as per the JICA’s international guidelines and which as such were to be complied with by all the bidders/participants.