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39. It is the specific stand of the Ennore Port that SIAL claimed experience from totally 17 projects. Out of them, five projects were by the lead member and twelve projects were by its consortium member. However, under Category-1, SIAL claimed experience only from seven projects i.e., four by the lead member and three by its consortium member. The experience score claimed by the consortium member from the two projects out of the three projects under Category-1 are from the projects whose capital cost is less than Rs.65 crores, which is against clause 3.2.3(c) of the RFQ document. In the third project, though the capital cost is more than Rs.65 crores, it is not supported by Statutory Auditor's Certificates apart from not submitting the Articles of Association of its associates which is claiming experience. As far as the Auditor's Certificates are concerned, such certificates were produced with the signatures of auditors, as could be seen from the documents filed by SIAL at page 45(1a) and page 52(1b) of the RFQ document.

41. The next question to be considered is whether for non-compliance of the production of Statutory Auditor's Certificates as per the format in Sl.Nos.13 / 14 of Appendix-I, Annexure-IV of RFQ document, the Ennore Port was justified in refusing to shortlist the petitioner. We may point out that in terms of clause 2.2.4(i) & (ii), such certificates are required from the Statutory Auditors with the names of the authorised signatory, designation, title of the project of the company and other details. In terms of clause 3.3.3, the applicant should furnish the required information and the evidence in support of its claim of technical capacity as per the formats in Sl.No.13 / 14 of Appendix-I, Annexure-IV of the RFQ document. Appendix-I, Annexure-IV relates to the details of eligible projects, which also contains instructions. In terms of Sl.No. 13, if the applicant is claiming experience under Categories 1 & 2, it should provide a certificate from the statutory auditor in the following format:

By an amendment, a revised RFQ for pre-qualification was prescribed by the Ministry of Finance in its Office Memorandum dated 18.5.2009. It is clarified that in case duly certified audited annual financial statements containing explicitly the requisite details are provided, a separate certification by statutory authority or auditors would not be necessary in respect of clause 2.2.4(i). In jurisdictions that do not have statutory auditors, the firm of auditors which audits the annual accounts of the applicant may provide the certificates required under the RFQ. By the above clarification also, it is made clear that the applicant must submit duly certified audited annual financial statements containing explicitly the requisite details as required under Appendix-I, Annexure-IV. Only when such details are furnished, the requirement of a separate certification by statutory auditors under clause 2.2.4(i) would not be necessary. However, this clarification would not be applicable to clause 2.2.4(ii) relating to the certificate from the statutory auditors specifying the net worth of the applicant as at the close of the preceding financial year and also specifying the methodology adopted for calculating such net worth. How far the clarification would advance the case of the petitioner in not producing the auditor's certificate should be considered on the basis of the documents furnished. It is seen that though in respect of project code 2l, the capital cost was shown to be more than Rs.65 crores, firstly, that was not shown in the format prescribed as per Appendix-I, Annexure-IV, which is mandatory. Secondly, the requirement of submission of Articles of Association of the petitioner's associates which is claiming experience as required under clause 2.13.3 was not furnished. In the absence of the above details, it cannot be now contended that clause 2.2.4(i) was complied with. So far as clause 2.2.4(ii) is concerned, the details were not only not furnished in the format prescribed, but also the details required thereunder were not furnished. As far as project code 1c, the auditor's certificate certifying the total project cost is not final, as it stated that the total project cost was arrived only "in the opinion of the management". In the circumstances, the Ennore Port found that the petitioner did not have at least one fourth of the Threshold Technical Capacity from Category-1 or Category-3 by having experience in the eligible projects whose sum total is less than Rs.650 crores as required under clause 2.2.2(A) of the RFQ document. Hence the rejection by the Ennore Port to shortlist the petitioner for non-compliance of Sl.Nos.13 / 14 of Appendix-I, Annexure-IV of RFQ is supported by valid reasons and cannot be interfered with, as the Ennore Port could consider only such of those certificates submitted from the statutory auditor in the format prescribed with all the details required thereunder and if no such certificate is produced, that application stands to summary rejection.

44. Mr.A.L.Somayaji, learned senior counsel appearing for the petitioners would make the following submissions:

(i) Inasmuch as the ranking of the applicants based on the experience score was already announced, the Ennore Port should not have refused to shortlist the applicants in the order of ranking. The act of Ennore Port in shortlisting the applicants who have obtained lesser experience score is unreasonable.
(ii) The first petitioner consortium has mentioned that the local jurisdiction of the countries where the Statutory Auditor's Certificates are issued do not specify the requirement of signing in the partner's name, and has provided the names and designations of the contact persons regarding the Statutory Auditor's Certificate issued in respect of the project codes viz., 1b, 1e, 1i, 1j, 1k, 1l, 1m, 1n, 1p, 1q, 1r, 1s, 1t & 1u, the Ennore Port did not shortlist the petitioners consortium on the ground that the Statutory Auditor's Certificate did not provide the names, designations and signatures of the authorised signatories, as required under the formats prescribed in Sl.Nos.13 / 14 of Appendix-I, Annexure-IV of the RFQ document. Having regard to the practice adopted in the local jurisdiction of the countries, the Ennore Port should not have refused to shortlist the petitioners as per the said formats.