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6.9 The sum and substance of the objections put forth was that, Eldis would not be in a position to install safe radars, especially, keeping in mind the fact that, in years to come, the Indian air space would be one of the busiest and most dense. In this regard, a specific reference was made to the airport at Mumbai.

7. It would be important to note at this juncture that a perusal of record would show that there is no dispute with regard to the fact that on 19.11.2010, at 1200 hours, a meeting of the Procurement Advisory Board (in short „PAB‟) was held under the aegis of the chairman of AAI. At this meeting the PAB, was apprised as regards the conditions appended in the price bid submitted by Eldis, one of which was regarding the fact that the supplied software product did not include the "source code" of individual modules and, hence the price of the source code was not included n the price offered by the Eldis. In view of the fact that PAB was advised that a conditional bid was violative of clause 5.5.6 of section A, the bid was declared invalid. There is also a reference in the official record to the fact that in the price bid there was an omission of one item in the price bid; in respect of which opinion of the legal department was sought which had opined that the objection being purely technical it may not sustain in court.

2. Additional columns were created in price bid.

3. Additional notes made in price bid

4. Tax liability not clearly mentioned

5. Whether Source Code and other proprietary software included in the quotes or not is not clear.

Also, based on deliberations with other IEMs, a conscientious unanimous decision was arrived at, and accordingly, I recommend that the tender should be re- invited after making clear and unambiguous provisions so that the bidding process is objective, fair and transparent and in accordance with the CVC guidelines.

27.1 It is because of this circumstance that at the meeting of PAB dated 19.11.2010, TAS was declared L-1 and was invited for price negotiations. These price negotiations were held on 23.11.2010, whereupon TAS by a letter dated 24.11.2010, offered a reduction in its quoted bid. Mr. Singh, contended, given this background, there was no justification in the AAI, calling for revised bids. The justification given in paragraph 2 of counter affidavit filed by the AAI, to the effect, that the Ministry Of Civil Aviation had received complaints, and that IEM, had found discrepancies in the bid filed by various bidders was not sustainable. In this regard, Mr. Singh contended that IEM had no authority or mandate to review financial bids. It was next contended that, in any event, the recommendation of IEM was not given effect to as AAI had ultimately not annulled the Tender, but called for revised bids. Mr. Singh also adverted to the letter of the CVC dated 14.01.2011, whereby it had refused to interfere in the Tender process. It was submitted on behalf of TAS that the decision of the PAB dated 28.02.2011, was contrary to, its own decision dated 19.11.2010. Mr. Singh submitted that the decision taken in the PAB meeting of 28.02.2011, was based on an erroneous premise, that the bidders had not indicated as to whether they would supply the source code, when in the meeting of 19.11.2010 it was recorded, that the source code was a critical element in the software module of the radars and hence, needed no explicit indication as the software cannot function without the source code. For these reasons, Mr. Singh submitted that the impugned decision to call for revised bids was clearly arbitrary, and an exhibition of, unbridled executive act, tailored to favour Eldis. It was contended that the impugned decision deserves to be set aside.

28. On behalf of Eldis, Mr Kamal Mehta submitted that TAS had been less than candid in the averments made in the writ petition. It was the submission of Mr Mehta that contrary to what has been averred in the writ petition there was no approval granted in favour of the petitioner either by the CVC or the Joint Secretary and Secretary to the Govt, of India in the Ministry Of Civil Aviation. There was nothing on record to show, according to Mr Mehta, that a decision was taken to issue a LOA in favour of TAS. It was thus contended that the writ petition deserves to be dismissed on the ground that it seeks to enforce the terms of the tender. The TAS, according to Mr Mehta, had not acquired any enforceable legal right merely by being declared as L-1 in the PAB meeting of 19.10.2010; albeit by an erroneous decision, which involved, the illegal exclusion of Eldis. It was asserted that TAS, who is involved in several projects with AAI had exerted, as it appears now, undue influence over the TEC, constituted by AAI, while the process of evaluation was under way. This had in fact, resulted in, the TEC coming up with an undefined criteria to oust Eldis from the race. The criteria adopted that the radars offered by bidders ought to have operated at major airports, did not have the backing of a defined standard against which this specific attribute could be measured. TEC, according to Mr Mehta, therefore, at the behest of the representatives of TAS adopted the definition of AERA Act which, in no way, could be the basis for assessing the performance/ capability of a radar. It is to correct this error, that AAI perhaps, constituted a two-member team to assess the performance of the radar offered by Eldis, in exercise of power contained in clause 2.3 of Section A of the Tender. Mr Mehta, however, stressed the point that Eldis by itself was never communicated any shortcoming or any decision purportedly taken to reject its technical bid. Therefore, the presence of its representative at the meeting held on 30.09.2010, to open financial bids, was legitimate. It was submitted that at this meeting, undoubtedly, Eldis was found to be the lowest bidder, and having been confronted with this fact, TAS shot off its letters dated 30.09.2010 and 7.10.2010 to AAI, seeking the ouster of Eldis from the fray. To give sustenance to its campaign against Eldis, TAS inspired media reports, including the one datelined 08.10.2010, which is dutifully appended to the writ petition. According to Mr Mehta, this campaign led to the flawed decision, of the PAB, taken at its meeting dated 19.11.2010; whereby Eldis was sought to be excluded on a ex facie flimsy ground that, its financial bid had conditions attached to it. The PAB, in coming to this decision, chose to ignore the fact that Eldis had on 05.11.2010 already instituted a complaint vis-a-vis TAS. It was this complaint, as well as that, which followed the PAB meeting, i.e., the complaint dated 21.11.2010 made to the Ministry Of Civil Aviation, the CVC and other concerned authorities, which resulted in the re-examination of the entire issue. The fact that the financial bid of TAS, was itself in breach of the provisions of Clause 5.5.1 of part A and clause 13.9 of part B of the Tender, had been overlooked. On the other hand, Eldis in its financial bid, indicated, only by way of clarification, that the source code was not included in the software; which for reasons best known to the authorities concerned was categorized, unfairly, as a condition appended to its financial bid. In including such a note, Eldis only sought to clarify that the source code of an individual module, being a proprietary item, which ordinarily is not included in the sale of a software product, would be supplied free of cost. Therefore, such a note could not have been construed in the first place as a condition appended to the financial bid, and then, being used to oust Eldis. It was pointed out that the said note, existed even at the time when the technical evaluation of the bids was carried out. Mr Mehta, next contended that a bidder in any event could not have been ousted on the ground of having appended such a note/condition, when in terms of the undertaking executed by the bidder in accordance with annexure VI of the Tender the same stood automatically withdrawn. Since all these factors put forth by the representatives of Eldis did not find necessary favour with the concerned authorities at AAI, Eldis was left with no option but to escalate the matter by writing to superior authorities, which included the CVC, the Ministry of Civil Aviation as also the External Monitor, i.e., IEM. This error was finally corrected with the report of IEM dated 7.12.2010; though the remedy offered by it involved cancellation of the Tender. While, the report of IEM was broadly accepted by the PAB in its meeting of 28.2.2011, the conclusion arrived at was different, in as much as, a decision was taken to invite snap bids from technically qualified bidders, keeping in mind the urgency in the matter. This decision of the official respondents, according to Mr Mehta, cannot be found fault with.