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22. Let us now examine the competitive bidding guidelines issued by the Government of India under Section 63 of the Electricity Act, 2003. The provisions relating to approval by the State Commission and other conditions in the competitive bidding guidelines for medium term procurement where location, technology or fuel is not specified (Case 1) relevant to this case are as under:

i) The bid documentation shall be prepared in accordance with the bidding guidelines and in case there is any deviation from the standard bid documents, the approval of the State Commission shall be obtained by the procurer. However, if the bid documents are as per the standard bid documents, the procurer of power has to send an intimation to the State Commission about initiation of the bidding process. The bid documents include the model Power Purchase Agreement.

27. It is admitted that the documents including the PPA were as per the Standard Bidding Documents. Hence, there was no necessity for the procurer to obtain the approval of the State Commission for the bid documents including PPA. The model PPA is a part of the standard bidding documents. According to the bidding guidelines of Government of India, the model PPA proposed in the Request for Qualification (RFQ) stage may be amended based on the inputs received from the interested parties, and shall be provided to all parties responding to the Request for Proposal (RFP) and no further amendment shall be carried out beyond the RFP stage. In the present case, no change in the proposed PPA is reported to have been made. Thus, no change could be possible after the RFP stage. If the PPA is as per the model PPA and the same has been made available to the prospective bidders and the bids were based on the same, we feel that it was not open to the State Commission to make any charges at the time when the proposal is put up before the State Commission for adoption of tariff in terms of Section 63 of the Electricity Act.

32. PCKL vide letter dated 18.8.2008 again took up the matter with the State Commission requesting for approval of the documents for procurement of power.

33. Consequently, the State Commission by letter 29.8.2008 sought some documents from PCKL regarding the procurement process. The requisite information was furnished by PCKL to the State Commission by letter dated 12.9.2008.

34. The State Commission again sought some information from PCKL by letter dated 18.9.2008 and also held meeting with PCKL officers. Finally, on 7.10.2008, the State Commission gave its approval subject to certain condition. The relevant extracts of the letter dated 7.10.2008 from the State Commission are as under:

35. By the above letter, the State Commission approved the procurement of power from the Appellants at the negotiated tariff and terms detailed by PCKL in its letter. The above approval was given subject to certain conditions regarding trading of the surplus power by the Distribution Licensees to be provided in the PPA to be submitted to the State Commission for approval. In our opinion the additional condition for provision in the PPA regarding trading of excess power within or outside the State imposed by the State Commission would not in any way affect the terms of PPA between the Appellant and the Respondent distribution licensee as it is only a direction to the distribution licensees to trade surplus power within and outside the state. There were some procedural deviations in the process but the State Commission after examination of the requisite documents approved the procurement of power from the Appellants. This approval was never challenged by the Appellants or any other party. We feel that with the above letter dated 7.10.2008, the requirement of adoption of the tariff by the State Commission under Section 63 of the Electricity Act was satisfied.