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Respondent No.2, the Nigam, while generally echoing the assertions of the State-respondent, pleaded dismissal of the challenge on the plain count that the same was based on outdated guidelines of 19.01.2005, the same having thereafter being modified/amended from time to time and lastly on 21.07.2010. While admitting that it, on behalf of the Discoms referred to therein, had issued the RFP for procurement of power based on Standard Bid Document issued by the Ministry of Power, Government of India as per the Guidelines, it pleaded that after the evaluation of the non-financial bids, financial bids of all qualified bidders were opened on 04.04.2013 and after an overall assessment of the bids and recommendations of the Bid Evaluation Committee, the Letters of Intent had been issued. It elaborated that the bidders had been asked to quote components of tariff and based on these components, levelized tariff was calculated as per the provisions of Clause 3.4.8 of the RFP and the financially successful bidders were selected as per Clause 3.5 thereof. It contended that the bidding process does not stand completed by issuance of the LOI to the selected bidders, but involves as well the execution of Power Purchase Agreement, Escrow Agreement, Hypothecation Agreement and other agreements, as applicable. The answering respondent pleaded that as per Clause 6.4 of the Guidelines, signed PPA has been forwarded to the Commission for adoption of tariff in terms of Section 63 of the Act. The allegation of private negotiations by it(Nigam) with second and third lowest bidders, was emphatically denied. According to it, its action was guided by consideration of safeguarding the interest of Discoms and the consumers of the State and was strictly in accordance with the provisions of law as well. Referring to Clause 3.5.3 to 3.5.7 of the RFP, the Nigam pleaded that the procurer was thereunder obligated to purchase power at the lowest available tariff and that in the case in hand, it had selected the bidders, who had offered lowest tariff bids in a transparent manner. It referred as well to Clause 6.3 of the Guidelines making it obligatory for it to make the bids public by indicating all the components of tariff quoted by the bidders, after the PPA was signed or had become effective, whichever was later. It asserted that no false disclosure was made and no fact was withheld at any stage of the bidding process, as alleged. That the predication of promotion of competitive procurement of electricity by distributing licensee, to facilitate transparency and fairness in the procurement process, protection of consumer interest etc., as underlined by the Guidelines, was rigorously adhered to in making the selection, was pleaded. It highlighted that its action has resulted in reduction of overall tariff payable by Discoms to the sellers.

The Bidder should note that:
(a) . . . . . . . . .
(b) . . . . . . . . .
(c) The Procurer / Authorized Representative reserves the right to accept the offer of the Bidder for any quantum of power up to the quantum offered by it, subject to the Minimum Bid Capacity, and considering the balance Requisitioned Capacity (after considering the quantum of power offered by Successful Bidder(s) in Clause 3.5.3.).
(d) . . . . . . . . .
(e) . . . . . . . . .
(f) . . . . . . . . .
(g) The Procurer / Authorized Representative may, at its sole discretion, ask for additional information/document and/or seek clarifications from a Bidder after the Bid Deadline, inter alia, for the purposes of removal of inconsistencies or infirmities in its Bid. However, no change in the substance of the Quoted Tariff shall be sought or permitted by the Procurer / Authorized Representative.
3. Preparation for inviting bids 3.1. To expedite the bid process, the following conditions shall be met by the procurer.

i. The bid documentation shall be prepared in accordance with these guidelines and the approval of the appropriate Regulatory Commission shall be obtained unless the bid documents are as per the standard bid documents issued by the Central Government. In such cases, an intimation shall be sent by the procurer to the appropriate Regulatory Commission about initiation of the bidding process.

5. Bidding Process Two-stage process 5.1. For long-term procurement under these guidelines, two-stage process featuring separate Request for Qualification (RFQ) and Request for Proposal (RFP) stages shall be adopted for the bid process under these guidelines. The procurer may, at his option, adopt a single stage tender process for medium term procurement, combining the RFP and RFQ processes. Procurer or authorized representative shall prepare bid documents including the RFQ and RFP in line with these guidelines and standard bid documents.