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1. The Respondent, a Government of India Undertaking under the Ministry of Railways, floated a tender for supply of installation and commissioning of STM-16/STM-4 SDH ADD/Drop Muxes (Telecommunication Exchange) in April, 2003. Bids were to be submitted in two parts; Part-I consisted of technical and commercial element of the tender bid (Credential Bid) and Part-II related to price element of the bid (Price Bid). On May 28, 2003 the respondent issued a corrigendum and addendum to the tender. One of the amendments was with respect to Clause 18.2.3 of the tender conditions whereby respondent wanted all the bidders to certify that its equipment is a proven equipment and working satisfactorily in India or at least two countries outside the country of origin for at least six months. 10 bidders submitted their bids including the petitioners. On July 7, 2003 Credential Bid i.e. technical and commercial bids of the bidders were opened. Thereafter price bids were opened on August 22, 2003. As price bid of the petitioners was not opened, this action of the respondent has been termed by the petitioners as arbitrary and illegal without assigning any reason and present writ petition has been filed challenging the rejection of the petitioners' bid. The petitioners had offered their equipment under the brand name Surpass hit. It is the case of the petitioners that this brand name Surpass hit was in fact their product earlier named SMA-16 which had been branded Surpass hit after their entire range of Telecommunication equipment was rebranded under the new brand name ''Surpass'' in January, 2003 by their parent company Siemens A.G., Germany. The case made out in the writ petition is that the respondent presumably rejected the technical bid of the petitioners in view of amended Clause 18.2.3 as per which equipment should have been a proven equipment and working satisfactorily in India or at least two countries outside the country of origin for at least six months. It is stated that the equipment under brand name Surpass hit was started in January, 2003 only, the respondent rejected the bid in terms of Clause 18.2.3 as it was for less than six months, losing sight of the fact that the brand name Surpass hit was in fact their product earlier named SMA-6 which had established market and merely because of change of the brand name '' Surpass hit'' could not be treated as new product.

Admittedly, in the tender documents submitted by the petitioners, they had nowhere stated or clarified that the equipment offered by them under the brand name ''Surpass hit'' was in fact their product named SMA-16 which had been branded Surpass hit after their entire range of Telecommunication equipment was rebranded under the new brand name ''Surpass'' in January, 2003 by their parent company Siemens A.G. Again admittedly, this information for the first time was supplied by the petitioners vide letter dated August 19, 2003. However, it was late in the day to supply such an information inasmuch as by that time the Technical Committee already evaluated the bids on the basis of information supplied in the bidding documents and the bid of the petitioners had been rejected. Again, for want of such clarification, rejection of the tender on this ground cannot be faulted with. Intimation for opening the price bids on 22.8.2003 was given only to six short listed bidders and not to the petitioners.