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S.H. KAPADIA, J.

Leave granted.

2. A short question which arises for determination in these civil appeals is - whether the decision of the Bid Evaluation Committee ("EC" for short) dated 6.5.2008 rejecting the Bid Proposal made by the Consortium led by M/s Zoom Developers Pvt. Ltd. as non- admissible in terms of RFP and thus excluding the said Consortium from the zone of consideration was unjustified, arbitrary and bad in law, as held by the impugned judgment of the Kerala High Court dated 4.12.2008 in Writ Appeal No. 1460/2008.

(i)     Apollo Enterprises led consortium
(ii)    Nagarjuna Construction Co. led consortium
(iii)   Videocon Industries Ltd. led consortium
(iv)    Lanco Kondapalli Power Pvt. Ltd., Hyderabad, led consortium
(v)     Zoom Developers Pvt. Ltd., Mumbai led consortium.

4. The bidders were required to submit their proposals in four covers, namely, the Outer Cover (containing details of the bidder, power of attorney in favour of the lead member, consortium agreement entered amongst the members of the consortium, legal opinion, security of Rs. 50 million in the form of bank guarantee etc.), Cover-1 (Statement of Qualification), Cover-2 (Technical Proposal) and Cover-3 (Financial Proposal). In this case, evaluation was done in three stages. In the first stage, there was evaluation of Outer Cover and Cover-1 to check the admissibility of bids and evaluation of qualifications as stipulated in the RFP. It may be noted that evaluation of the Technical Proposal had to be done only of those bidders who met the "Qualification Criteria" (vide second stage). The third stage contemplated evaluation of the Technical Proposal. As stated above, only five bids were received. These bids (Outer Cover and Cover-1) were opened on 31.1.2008 by the Bid Opening Committee. The said firms were found to have satisfied prima facie the requisite requirements. The bids were accepted by the Bid Opening Committee for further scrutiny. The bids submitted were considered at the meeting of the EC on 25.2.2008. In the said meeting it was observed that, with regard to the bid submitted by the consortium led by M/s Zoom Developers Pvt. Ltd. ("ZDL" for short), the Power of Attorney and the Consortium Agreement were unstamped and they needed to be stamped. It was further pointed out by the EC that the lead member in terms of the RFP, namely, M/s ZDL was required to hold a minimum equity of 26% in the Special Purpose Company ("SPC" for short), which has not been expressly mentioned in the Consortium Agreement. The EC further pointed out to M/s ZDL that one of the consortium member, namely, M/s Portia Management Services Ltd. ("PMS" for short) had signed the consortium agreement on behalf of Peel Ports Ltd. ("PPL" for short) but M/s PPL is not a member of the consortium. Additional information regarding the financials of M/s PMS (on its own) and of M/s ZDL were also called for. On 25.2.2008, accordingly the EC granted ten days time to remove the above defects. M/s ZDL sought extension of time. Ultimately, time was extended up to 4.4.2008. In short, meetings of the EC took place on 25.2.2008, 13.3.2008, 8.4.2008 and 6.5.2008. By 2.4.2008, M/s ZDL submitted all the relevant documents duly updated. It may be noted that M/s Universal Legal, Bangalore, were appointed as Legal Advisor of the Project by the EC.

19. Be that as it may, the question is whether in the modified consortium agreement dated 11.3.2008 responsibilities and allocation of works stood clearly demarcated between the members of the consortium? We have examined the consortium agreement dated 11.3.2008. It clearly indicates that M/s ZDL is an Indian company. It is a lead member of the consortium. The agreement further indicates that there were two members in the consortium apart from M/s ZDL, namely, M/s PMS and M/s Peter Fraenkel & Partners. The agreement indicates that M/s ZDL shall be responsible for implementation of the Project along with M/s PMS and M/s Peter Fraenkel & Partners. M/s ZDL had to submit technical and financial bids. M/s ZDL had to act as project developers and principal coordinators. M/s ZDL had to arrange finances. On the other hand, M/s Peter Fraenkel & Partners had to do the work of designing and budget preparations whereas M/s PMS had to provide operational support during the implementation of the Project. Therefore, under the said Agreement, duties and responsibilities of each of the members stood carved out. Vide clause 7, members of the consortium were made "jointly and severally responsible" for every stage of implementation of the Project. The only objection raised by the GoK is that the word "liable" ought to have been used instead of the word "responsible" in clause 7 and since that word has not been used, the Bid Proposal of M/s ZDL needs to be dismissed. As stated above, in the meetings held prior to 8.4.2008, no such objection was ever raised. In fact, no opportunity was given to M/s ZDL to cure this defect though it was given to the consortium led by M/s Apollo (see page 81 of the SLP paper book in SLP (C) Nos. 30204-30205/2008 entitled State of Kerala v. M/s Zoom Developers Pvt. Ltd. & Ors.). The important point is that the EC treated the above objection as a curable defect. It is only after the Law Secretary came on the scene that the above objection was raised even after the clearance by M/s Universal Legal. Therefore, it is clearly an afterthought. Further under the consortium agreement dated 11.3.2008, it was stated that M/s ZDL, PMS and Peter Fraenkel & Partners shall be fully responsible for their individual portions of work. Under the said Agreement, it was further stated that, in case the Project stood awarded to the Consortium, the Consortium commits to hold a minimum stake of 51% in the SPC. This shows that in the matter of liability, the Consortium Agreement was only a step-in-aide to the formation of SPC. Further, as rightly held by the High Court in the impugned judgment, the apprehension of GoK that in the event of disputes between members of the consortium or in the event of non- implementation of the Project, GoK would not be in a position to enforce its claim was ill-founded because the licence agreement between the successful bidder and the licensor (GoK) was yet to be entered into in which a provision as to "joint and several liability"