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A. KULASEKARAN, J The facts involved in the cases on hand is as follows:-

(i) The first respondent herein is Steel Authority of India (SAIL), which is registered as a government company under the provisions of Companies Act in which 85% shares are held by the Government of India and 15% shares are held by public. The second respondent namely Salem Steel Plant (SSP) is an unit of the first respondent, which was set up by the first respondent for production of stainless steel.
(ii) The first respondent issued tender notice E/08 dated 13.03.2007, hereinafter referred to as first tender, inviting sealed tenders for establishment of new Cryogenic Air Separation Plant (ASP) in the premises of Salem Steel Plant on Build-Own-Operate (BOO) basis and supply Oxygen, Nitrogen and Argon gases on long term basis to steel melting shop (SMS) being put up under expansion. The first respondent appointed the fifth respondent as Consultant-cum-Project Manager. The tender floated on 13.03.2007 was opened on 09.05.2007 in which six tenderers have participated, out of which two were found ineligible, one tender was rejected and the remaining three namely the appellant, fourth respondent and one M/s. BOCIL were considered as eligible. After holding techno-commercial discussion with them, the price bid was opened on 04.07.2007 in which the fourth respondent's bid was rejected. The appellant and M/s. BOCIL were evaluated by the fifth respondent. The fifth respondent, in his letter dated 12.07.2007, after evaluating the price bid and the Net Present Value, hereinafter referred to as NPV, as per the terms of the tender conditions, recommended to consider M/s. BOCIL as L1 for establishment of ASP on BOO basis for supply of industrial gas for fifteen years to the second respondent.
(v) On 10.01.2008, the Techno-Evaluation Committee and Commercial Evaluation Committee of the respondents 1 to 3 recommended that all the three are techno-commercially eligible. The commercial evaluation committee considered the request of the fourth respondent and M/s. Praxair for submitting revised price bid and suggested to seek revised price bids from all the three bidders. The said recommendation was also accepted by the tender committee. The second respondent issued a letter dated 11.01.2008 requesting all the three tenderers to submit their revised price bid on or before 14.01.2008. The appellant stated to have initially not agreed for submitting revised price bid, however, submitted it. The respondents 1 to 3 stated that the appellant has not filed revised price bid but submitted only supplementary price bid, which is not permissible as per the tender conditions. The revised price bid tender was opened on 14.01.2008 in the presence of all the three bidders and handed over to the fifth respondent for the purpose of evaluation, to arrive at NPV and consequently calculate the total cost in the contract period of 15 years as contemplated in annexure-I, Section V of tender document.

(x) The above said course of action for re-tendering with necessary clarification/correction as suggested by the Executive Director (Operations) on 02.02.2008 was said to have informed by the Executive Director of the second respondent to the third respondent herein and it based on the information received from the Executive Director of the second respondent initiated on 02.02.2008, a proposal for re-tender for ASP. The Executive Director of the second respondent, on 04.02.2008, approved the decision for re-tender. The second respondent, thereafter, placed the said re-tender proposal before the Executive Director (Operation) of the first respondent, who sought opinion from the General Manager and Principal Law Officer and they have also opined that revised tender was the better alternative. Thereafter, the Executive Director (Operations) of the first respondent approved the recommendations of the Plant level tender committee for re-tendering on 22.02.2008. The second respondent, thereafter, took steps for re-tendering after obtaining opinion from the Principal Law Officer of the first respondent and placed the matter before the approving authority on 22.02.2008 itself with necessary modification in respect of technical specifications as suggested by the fifth respondent. The revision of technical requirements were carried out in Annexure-II of the draft agreement in the third tender incorporating the methodology to be adopted for the calculation of NPV and for the purpose of price evaluation as suggested by the fifth respondent herein. The competent authority also approved the said third tender for ASP package on 22.02.2008 itself. The Executive Director of the second respondent also approved the recommendation, which was informed to the third respondent by fax message on 22.02.2008.

3. Mr. Vijay Narayan, learned senior counsel appearing for the appellant in W.A. No. 1126 of 2008 submitted as follows:-

The fifth respondent has sent a final recommendation letter dated 30.01.2008 wherein in Para No.2.0 it is stated that all bidders furnished their documents/information for establishing their eligibility requirement and based on the preliminary review of documents received from the tenderers, all the bidders appeared to be prima facie eligible. Additional clarifications and documents were sought from all the bidders for meeting the eligibility requirements, on receipt of which certain discrepancies were observed in the offer of GMGGL, while rest of the three bidders namely fourth respondent, the appellant and Praxair were found to be eligible. In Para-6.0, it is stated that the bidders were asked to quote their revised prices based on the clarification/confirmation to draft agreement read with tender document & minutes of meeting mentioned therein. In para-7.0 it is stated that in line with the said clarifications/confirmations all the three techno-commercially acceptable parties were communicated to submit un-priced bids and revised price bid (as per the format in the tender document) in separate sealed envelopes to be opened on 14.01.2008. All the bidders quoted the amount calculated uniformly based on hourly basis for supplying Oxygen and Nitrogen and Argon on daily basis. Further, in Para No.10 of the said letter, it is stated that subsequent to the receipt of confirmation and declaration on the unpriced bid all the parties were called together and the declarations/ confirmation given by each party were read out and all the parties have noted the above. Similarly, in para-11, it is mentioned that the prices are inclusive of the taxes etc., as quoted by the fourth respondent, appellant and Praxair as tabulated therein. In para-14, it is stated that based on the above results of NPV it is found that appellant was the lowest bidder and the prices quoted by them were considered reasonable and recommended to consider the appellant. It is however suggested that the second respondent may try and negotiate with the appellant for any possible reduction in supply price of Argon as it is their bought-out item. The learned senior counsel further submitted that the said letter dated 30.01.2008 of the fifth respondent was suppressed by the respondents 1 to 3 in order to favour the fourth respondent. The letter dated 01.02.2008 was sent by the fifth respondent at the instance of the third respondent. The appellant also, in their letter dated 22.02.2008 addressed to the first respondent referred to the said letter dated 30.01.2008 of the fifth respondent. There was no confusion in the minds of the bidders in the evaluation criteria as alleged by the respondents 1 to 3. Pointing out the said reasons, the learned senior counsel prayed for setting aside the common order passed by the learned single Judge in WP Nos. 6425 and 6426 of 2008.