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11. It is contended on behalf of the petitioner that the impugned clauses have been inserted for the purpose of excluding the petitioner from participating in the tender and with the ulterior object of ensuring that only SAIL is able to participate in the tender. It is contended that the bid documents have been tailor-made to favour SAIL for the purpose of procuring rails. The inclusion of the impugned clauses in the bid document is contended to be mala fide and thus, violative of Article 14 of the Constitution of India.

14. The respondent has contended that the tender conditions with regard to past experience are not arbitrary or unreasonable. It is submitted that the said tender conditions have been included based on the Standard Bidding Document (hereinafter referred to as the „SBD‟) provided by ADB. ADB has issued a Users‟ Guide for procurement of goods which contains the SBD for procurement of goods and related services. As the procurement of rails under the Bid Document is to be financed partly from the loan made available by ADB, the respondent was obliged to follow a transparent tendering process and was also required to issue the invitations to tender in conformity with the SBD as provided by ADB. Insistence of past experience as a qualification criterion is well accepted. The eligibility criterion of past experience has also been adopted by the respondent for the past several years. It is submitted by the respondent that the policy to include past experience criteria is to ensure that the bidding is restricted to entities that have the capacity to perform the contract in question. And insisting that only bidders who are experienced and have proven credentials participate in the tender ensures that only bidders who have the required capacity to perform are considered for awarding the contract. The learned counsel for the respondent has also drawn our attention to Para (xv) of the counter affidavit filed by the respondent which contains a table indicating the justification for including clauses of the eligibility and qualification criteria in the Bid Document including the impugned clauses.

19. Undisputedly, the procurement of rails which is the subject matter of the invitations to tender is funded by the financial assistance received from ADB and thus, the respondent has to follow the bidding procedure as prescribed by ADB. The ADB has published a User Guide for procurement of goods which contains the Standard Bidding Document (hereinafter referred to as SBD). The introduction to the said Users Guide indicates that the SBD have been drafted to:-

"(a) simplify the Purchaser‟s preparation of a specific bidding document (BD) for Procurement of Goods and Related Services;

(b) reduce the Bidders‟ bidding time and effort;

(c) facilitate and simplify the Purchaser‟s evaluation and comparison of bids and Contract award; and

(d) minimize the ADB‟s time required for the prior review of the BD."

As per the SBD, a bidder has to possess the qualifications which are considered necessary to indicate his capacity to fulfill the obligation under the contract.