LANCO KONDAPALLI POWER PVT. LTD v. CHITAMBARESH

WA No.1460/086evaluation of qualifications vis.a.vis the stipulated qualification criteria.2nd Stage is evaluation of the technical proposal of only those bidders who meetthe 'qualification criteria' and 3rd Stage is evaluation of the Financial Proposalof Technically qualified bidders who score minimum 70 points out of 100points in the technical evaluation. As stated above, only five bids werereceived. These bids (Outer Envelope and Envelope 1) were opened on31.01.2008 at 17.00 hours by the Bid Opening Committee constituted videGO. (Rt) 49/08/F&PD dated 23.01.2008 in the presence of bidders'representatives. All the five bidders have submitted valid Proposal Security ofRs.50.00 million in form of Bank guarantees, Consortium Agreements andother documents as per the RFP and found the said firms are prima faciequalified. Minutes of the Bid Opening Committee is produced as Ext.R2 (b).The bids were accepted for further scrutiny. The Bid Evaluation Committee(“EC” for short) constituted as per GO (Rt) 112/08/F&PD dated 19.02.2008,met on 25.02.2008, 13.03.2008, 08.04.2008, 06.05.2008, 07.05.2008 and on14.05.2008. 11. The bids submitted by all the bidders were considered at themeeting of EC dated 25.02.2008 and in its R2(d) minutes, it is observed withregard to the petitioner's bid, that, i. Power of Attorney Agreement needs to be stamped in accordance with law; ii. The Consortium Agreement needs to be stamped in accordance with law; WA No.1460/087iii. It has not been expressly mentioned in the consortium agreement that theLead member shall hold a minimum equity of 26% in the SPC as per therequirements of the RFP;iv. Portia Management Services has signed Consortium Agreement on behalfof Peel Ports Ltd but Peel Ports Ltd is not a member of the Consortium.12.A copy of the points considered in respect of the petitioneris submitted as Exhibit R2(c) wherein it is inter alia noted that, i. Power of Attorney submitted by the petitioner has not been executed onstamp paper; ii. Consortium agreement is not submitted on stamp paper andiii. the petitioner sought two amendments to the draft license agreement. In the said meeting, additional information regarding AnnualReports were sought and also found that the financial statement of leadmember was not submitted. Ten days time was granted to the petitioner forsubmission of details. It is stated that the petitioner sought extension of time till24.03.2008 and then to 04.04.2008 for furnishing clarification. Since thebidding process was getting delayed, an ultimatum was issued to the petitioneron 27.03.2008 cautioning them to complete the formalities before 04.04.2008.13.In the EC meeting held on 08.04.2008, petitioner'sdocuments were evaluated and the 3rd respondent submitted its observationsalong with a note requesting to obtain consideration of law department on the WA No.1460/088following aspects:-1. Original Consortium Agreement is submitted without notary attestationfor the signatures of Mr. Peter Martin of M/s Peter Frankel andPartners and Mr. Minoo Pardiwala of M/s Zoom Developers;2. Consortium Agreement was not stamped in India; 3. Consortium Agreement contain anomalies such as --i. not mentioned expressly that Lead Member shall hold a minimumequity of 26% in the SPC (instead of in the consortium). Theamendment to RFP for minimum equity stake of the Lead Memberto be 26% in the SPC instead of 26% in the consortium in the SPCwas issued in 01.01.2008 while the consortium agreement wasentered in October 2007.ii. Portia Management Services had signed consortium Agreement onbehalf of Peel Ports, but Peel ports Ltd is not a member of theconsortium (Portia Management Services is a subsidiary of PeelPorts ltd, but need to be authorized by Peel Ports Ltd).4. Accordingly, we had pointed the above discrepancy to the Biddertogether with the stipulations in RFP; 5. Towards clarifications to above, the Bidder furnished a ConsortiumAgreement dated 11.03.2008 drawing reference to ConsortiumAgreement dated 04.10.2007 submitted with the original bid documentsand also superseding the same towards complying with the provisionsof RFP.14. Copy of the minutes of EC on 08.04.2008 is produced asExhibit R2(e) and with reference to the bid submitted by the petitioner it isnoted that the responsiveness of its bid needs to be ascertained keeping in view WA No.1460/089of the agreement dated 04.10.2007 and in this circumstance EC thought itappropriate to obtain the opinion of Law Secretary before opening theirtechnical bid. It was also decided to open the bids submitted by theConsortiums lead by Nagarjuna Construction Co. Ltd, Hydrabad, VideoconIndustries Ltd. Mumbai, India and Lanco Kondapalli Power Pvt. Ltd.,Hydrabad, India who submitted the responsive bids and met the stipulatedQualification Criteria. 15. The Evaluation Committee, again met on 06.05.2008 and acopy of the minutes is produced as Exhibit R2(f). In this meeting, LawSecretary also attended as a special invitee for the purpose of discussing theresponsiveness of the bid submitted by the petitioner. Opinion of the Lawsecretary is as follows;"2.2.1. Certain defects pointed out (by) the Legal consultants in the originalconsortium agreement with reference to Notary attestation andstamping requirements have since been reported to be rectified. Thesame may be confirmed. 2.2.2. It is informed that the consortium agreement was entered into betweenthe parties in October 2007. The amendments to the RFP has beenissued only in January 2008 (fixing 26% of the minimum equity stakefor the lead member in the SPC instead of 26% of the consortium inthe SPC). Hence it is reported that consortium agreement dated04.10.2007 submitted by the bidder has been superseded by a newconsortium agreement dated 11.03.2008 so as to comply with thestipulations in the RFP. WA No.1460/0810 OpinionThe amendment made in the RFP can be carried out in the originalconsortium agreement executed in October 2007 itself by makingsuitable modifications to the deed through a supplemental agreementexecuted in October 2007 would not be lost. Now the consortiumagreement dated 04.10.2007 is a non-entity. At the same timeConsortium Agreement dated 11.03.2008 cannot be taken as submittedalong with the bid proposal. 2.2.3. Attention is invited to the consortium agreement dated 04.10.2007wherein M/s Portia Management Services has signed as a party onbehalf of M/s Peel Ports Ltd. It is reported that M/s Peel Ports is not amember of the consortium. But it is has been clarified that M/s PortiaManagement Services is a subsidiary of Peel Ports Ltd. However, nosuch authorization is found in this regard. 2.2.4. Now in the new consortium agreement executed on 11.03.2008 the partyto the consortium ie M/s Peel Ports Ltd has disappeared. M/s PortiaManagement Services has come in the picture as a party to theconsortium agreement. Since such a change has been made aftersubmission of the original bid documents as a participating consortiumin the Bid Process it hasnot been explained under whose authoritysuch a change in the consortium has been made.2.2.5. As per eligibility criteria for the Bidder as specified in the RFP (cl.3.5) ithas been stated that all members of the shall be jointly and severallyliable for the execution of the project in accordance with the terms of WA No.1460/0811the License Agreement and a statement to this effect shall be included inthe Consortium Agreement. But instead of incorporating such a clausein the consortium agreement, it has been mentioned therein that themembers of the consortium shall be jointly and severally responsible atevery stage of the implementation of the project (cl. 7). It may be notedthat 'liability' is different from 'responsibility'. "In view of this legal opinion of Law Secretary, Evaluation Committeeunanimously concluded that the bid submitted by the petitioners isnon responsive in terms of RFP provision. 16. Pleadings in the reply affidavit filed by petitioner: In the reply affidavit filed by the petitioner it is averred at theoutset that the 'Law Secretary has been invited as a special invitee by therespondents in the meeting held on 08.04.2008 and 06.05.2008 and based onhis opinion the evaluation committee which till that time found the petitioner tobe qualified as per the RFP unanimously changed their opinion'. 17. In response to para 2.2.2. of Exhibit R2(f), it is averred thatthe consortium agreement is permitted to be submitted by the bidders in ownformat and the law secretary himself opined that amendment could be carriedout by way of a supplementary deed; that had the 3rd respondent made anysuggestion to the effect of change in percentage of equity, suitablemodifications could have been made earlier; that the 3rd respondent was fullysatisfied with the new consortium agreement as vide Exhibit P15, they asked WA No.1460/0812the petitioner to get the new agreement stamped in accordance with law; that itis factually wrong on the part of law secretary to note that 'in view of thesupersession of the earlier consortium agreement for the new consortiumagreement the consortium agreement dated 04.10.2007 is a non-entity' as heearlier approved the same as a supplementary agreement that complied with theprovisions of law; that it is specifically admitted by the EC in cl.4.2(a) that allthe bidders furnished the information "as asked for and within time" and thusthey have admitted that all the documents were submitted in time.18. In response to para 2.2.3. of Exhibit R2(f), it is stated that atno point of time was any authorization sought from petitioner regarding the factthat M/s Portia Management Services is a subsidiary of Peel ports Ltd; that aperusal of Exhibits P11 and P12(a) would make it clear that PortiaManagement Services is a part of Peel Ports Group and EC dated 25.03.2008also confirms as per minutes of the meeting that Peel Ports Ltd is not a memberof Consortium; that no clarification is sought from the petitioner with referenceto the relationship between Portia Management Services and Peel ports; thatExhibit P9 was not taken note of or not considered by the Law Secretary beforeforming his opinion. 19. In response to para 2.2.4. of Exhibit R2(f), it is stated that theobservation to the effect that Portia Management Services has come intopicture as a party to the consortium agreement after the submission of bid WA No.1460/0813documents is not correct; that in the cover letter dated 31.01.2008 submitted bythe petitioner it is specifically stated that Portia Management Services is shownas a consortium member and in the column (f) which deals with ownership theanswer given is "wholly owned subsidiary of Peel Ports Ltd UK" and similarlyin column 2 regarding brief description of the company it has been stated that"Portia Management Services is the international arm of Peel Ports"; that thereference in consortium agreement that 'Portia Management Services on behalfof Peel Ports Ltd' is only intended that the Portia Management Services is partof Peel Ports and the certificates annexed would show that the supportingdocuments are that of the Portia Management Services; that right frombeginning it was M/s Portia Management Services which was the consortiummember and not Peel Ports. 20. In response to para 2.2.5. of Exhibit R2(f), it is stated thatthe Law Secretary adopted a hyper-technical approach while drawingdistinction between the words "liability" and "responsibility".21. It is also stated in the reply that the fact that respondentsproceeded with other three bids would show that they are not interested toconsider the bid of petitioner; that the petitioner's case was taken up forconsideration only on 06.05.2008 by which time the EC has already consideredthe technical bid of the other three consortium and had issued notice to themthat their financial bid would be opened on 14.05.2008; that as per cl 21.3 of WA No.1460/0814Ext. P4 it has been clearly stated that the time and date of opening the financialproposals shall be informed to the eligible bidders giving minimum 7 daysprior notice and therefore the meeting held on 06.05.2008 was an emptyformality; that the entire bid evaluation process was completed with unduehaste, since the Government wanted to include the awarding of VizhinjamProject as their achievement since the 2nd anniversary of LDF government wason 16.05.2008 and this was highlighted as the Ministry's biggest achievement. 22. Additional Respondent:As per Order in IA 7587/2008, Portia ManagementServices Ltd was impleaded as Addl. 5th Respondent and they have also filedstatement and reply essentially supporting the contentions of the Petitioner. 23. JUDGMENT OF THE LEARNED SINGLE JUDGE: The learned single judge, as evident from para 14 of thejudgment, considers the correctness or otherwise of the opinion of the lawsecretary and proceeded to decide the case. The three points considered by thelaw secretary viz; i. Consortium Agreement dated 04.10.2007 was signed bythe M/s Portia Management Services on behalf of M/s Peel Ports Ltd withoutany authorization; ii. new Consortium Agreement dated 11.03.2008 was singedby M/s Peel Ports Ltd and M/s Portia Management Services has disappeared.This change of member was made after submission of original bid without anyauthority and iii. Instead of making the joint and several 'liability' clause in the WA No.1460/0815Consortium Agreement, only a 'responsibility' clause was included by thepetitioner's consortium. 24. The court has elaborately considered the jurisprudentialdifference between the terminologies 'liability' and 'responsibility' in paragraphs15 to 26 and approves the opinion of law secretary after finding that petitioner'sconsortium is not permitted to make such changes in the agreement againstcl. 3.5 of Section IV of RFP. It is also noted that there is fundamentaldifference between the words 'liability' and 'responsibility'. After consideringthe judgments in WB State Electricity Board v. Patel Engineering Co,2001 (2) SCC 451, Tata Cellular v. Union of India AIR 1996 SC 11 and AirIndia Ltd. v. Cochin International Airport Ltd. 2000 (2) SCC 617, it is foundthat judicial interference in this case is not warranted and as such the action ofEC cannot be interfered with. In paragraphs 27 to 29, the Court essentiallyconsiders the aspect relating to the change of parties in the new Agreementafter submission of bid and found that it is not permissible in the context of theRFP and that the expression 'acting on behalf' does not permit substitution ofparties. Opinion of Law Secretary was approved in this regard and also onthese reasonings, the writ petition was dismissed. 25. RELEVANT PROVISIONS IN THE RFP: For a better understanding of the issue in hand, it is necessaryto recapitulate the relevant provisions in RFP. WA No.1460/0816Section I: Invitation for Bids Clause 6: The selection shall be by way of a three stage bidevaluation process. All bidders shall furnish their proposals furnishing theirqualification details, technical and financial particulars/proposals as per theinstructions in Section IV of the RFP. These shall be evaluated based on thecriteria set out in Section II and IV of the RPF.Section III: Scope of the ProjectDefinitions:“Bidder” shall mean Applicant who has been issued RFP, to submit aDetailed Proposal.“Consortium” shall mean a group of Firms formed pursuant to theConsortium Agreement entered into by them for the purpose of submitting theProposal and participate in the Bidding process and in the event of beingsuccessful, to implement the License Agreement through a Special PurposeCompany to be formed and incorporated by them under the Companies Act,1956.“Consortium Agreement” shall mean an agreement to be entered intoamongst the Lead Member and the remaining Members of the Consortiumrecording the terms of their consortium arrangement and joint venture for thepurpose of submitting the Proposal, participate in Bidding process and providefor implementation of the terms of the License Agreement as provided herein. WA No.1460/0817“Lead member” shall mean in case of a Consortium, the Firmnominated to act as Lead Applicant at the RFP stage, which meets theQualification Criteria and qualifies thereby and which shall continue to be theleader and be authorized as such for bidding and implementation.“Member” shall mean any firm other than the Lead Member, which ispart of the Consortium bidding at the RFP stage for the Project.“Project” shall mean designing, financing, building, owning, operatingand maintaining of a green field modern, all weather, deepwater port andcontainer transshipment hub at Vizhinjam in Thiruvananthapuram District,Kerala, India, within focus on International Container Transshipment, duringthe License period and transferring to the Licensor thereafter.“Proposal or Detailed Proposal” shall mean the Proposal submitted bythe Bidder in response to the RFP including clarification and/or amendments toRFP, if any.“Special Purpose Company or SPC” shall mean the Company to beset up under the Companies Act, 1956, by the Licensee for the purpose ofimplementing the Project, such SPC's shareholders being the members of theConsortium selected as Successful Bidder in respect of the Project.“Sponsor” shall mean Vizhinjam International Seaport Ltd., which hasbeen designated as the Nodal Agency by the GoK/Licensor for implementingthe Project. WA No.1460/0818“Successful Bidder” shall mean such Bidder, who after evaluation of itsqualification, technical and financial criteria in the proposal received inresponse to this RFP, is assessed accordingly by the Licensor and such otherparties as laid out herein, and declared as the Highest Evaluated Bidder,pursuant to which the Letter of Intent (LOI) in relation to the project issued bythe Sponsor/Licensor is accepted by such party, paid the upfront ProjectDevelopment Fee and submitted the Performance Security Bank Guarantee. Section IV: Instruction to BiddersEligible Bidders:3.1 : Only those applicants who have been provided with the RPFdocuments and meet the Qualification Criteria laid down by Sponsor(given in Section II of RFP) would qualify as eligible bidders.The Statement of Qualification submitted by the Bidders as part ofthe Proposal shall be evaluated by the Sponsor and further evaluation oftheir Bids will be subject to the Bidders meeting the QualificationCriteria laid down herein.3.2Evidence of Qualification: Sponsor shall have the right to seek suchinformation as may be required and necessary from the Bidders to ensuretheir continued eligibility. Bidders shall provide evidence of theircontinued eligibility vis a vis the Qualification Criteria in such a mannerthat meets the requirements of the Sponsor. Bidders may note that they WA No.1460/0819may be disqualified in the event of the sponsor determining at any stageof the Bidding Process that the Bidder would be unable to fulfill therequirement of the Project or may fail to continue to meet/satisfy theQualification criteria. Sponsor may, seek such supplementaryinformation or documentation regarding qualifications as may benecessary from the Bidders at any time, which would have to befurnished by the Bidders within the time frame stipulated by the sponsor.3.3Updated Information: All information to be submitted in relation to theRFP and the Project by the Bidders shall be updated to the date of itssubmission, or as close to that date as is reasonably possible, given thenature of the information requested, unless a specific date has beenmentioned therein.3.4The Lead Member, if indicated by the Applicant, can be changed withprior written consent of sponsor only in the event of the substituted LeadMember satisfying the Qualification Criteria laid down for the LeadMember. Any change of the Lead Member without such writtenpermission may result in disqualification of the Bidder. Sponsor may, asits sole discretion, permit the change to take effect in the event of theBidder demonstrating its continued eligibility to fulfill the QualificationCriteria to the satisfaction of the Sponsor. The Applicant is free to selectthe other Members of the Consortium and finalize the shareholders of WA No.1460/0820the Consortium before the Submission of the Proposal provided the LeadMember and other Members satisfy the Qualification Criteria for theConsortium as a whole, unless otherwise mentioned in RFP documents.3.5 All members of the Consortium shall be jointly and severally liable forthe execution of the Project, in accordance with the terms of the LicenseAgreement and a statement to this effect shall be included in theConsortium/Share Holder's Agreement.3.6The evaluation of the Bidder's Proposal would be based solely on theproven details and data furnished by the Bidder as part of its DetailedProposal.3.7Sponsor's decision regarding selection of License from the variousBidders' proposal received shall be final and binding on all partiestherein, and Sponsor would not be entitled to inform any Bidder/s thereasons for its decision.4. Additional requirements where bidder is a consortium4.1 In case the Bidder is a Consortium, the Bidder has to comply with thefollowing additional requirements:a.The proposal shall include all the information as required under Para13 for Lead member and each Member.b. The proposal shall be signed by and be legally binding on all theMembers of the Consortium. WA No.1460/0821c.The proposal shall include a Power of Attorney signed by all membersin favor of the Lead Member, duly authorizing the Lead member to acton behalf of the Bidder Consortium in respect of all matters relatingthereto.d.The Lead Member shall be authorized by all the Members to incurliabilities and receive instructions for and on behalf of any and allMembers.e.A copy of the Consortium Agreement entered into by and among themembers of the Consortium and the Lead Member shall be submittedwith the Proposal. The Consortium Agreement shall be specific tothis Proposal and clearly allocate responsibilities and duties betweenthe Members and the Lead Member, including percentage ofshareholding. Notwithstanding this, the Consortium Members shall bejointly and severally liable to Licensor for implementation of theProject.8.Clarification of RFP:8.1In the event of Bidder requiring any clarifications, etc. in respect of theRFP documents, the Bidder may bring such clarifications to the notice ofthe Sponsor in writing.8.2Bidder is requested to bring to the attention of the Sponsor any WA No.1460/0822anomalies or ambiguities in any Section of the RFP not later than thirty(30) days from the date of issue of RFP, in the format provided inAnnexure 2. The Bidder is required to state the anomaly/ambiguity alongwith his understanding of the same. Such clarifications could relate tothe process, documentations or any other issue of RFP. To the extent thatsuch issues are not brought to the attention of the Sponsor within the timeframe stipulated above, the contents of the RFP as interpreted by theSponsor shall prevail.8.3Modification:Any modification of the RFP which may becomenecessary as a result of the deliberations/discussions subsequent tocomments/clarifications sent by the bidders shall be made by theSponsors separately by way of an Amendment as mentioned in Para 9.9.Amendment to RFP Documents:9.1At any time prior to the deadline for submission of Proposals, Sponsormay in response to any clarifications, query, question, doubt etc. of theBidder, or at its own initiative, issue Amendments to the RFP. Anyamendments thus issued shall be part of the RFP. 13: Contents of the Proposal 13.2Basic Information Section:The Bidder is required to furnishdetailed information in respect of all its Consortium members, like WA No.1460/0823country of incorporation, address of the registered office and Indianoffice (if any), contact person along with his designation and phone/fax/email address, names of the present Board of Directors, key managementpersonnel and major shareholders, etc. as also the proposed roles andresponsibilities of the various members in this Project. the format forfurnishing the above information be given at Annexure 4 [to be submittedby the Bidder as P2].13.4In case of consortium, members of the consortium shall enter into aConsortium Agreement for the purpose of submitting the proposal. TheConsortium Agreement shall contain, inter-alia, the following provisions:a.commitment to form a Special Purpose Company, to undertakethe Project in case it is awarded to the Consortium.b.outline of the proposed roles and responsibilities of eachConsortium member at various stages.c.joint and several liability of the Consortium Members forimplementation of the Project.d.commitment of the minimum equity stake of the Lead Memberand which should not be less than the threshold limit as specifiedin para 4.1e.willingness of the Consortium to carry out all the responsibilitiesas Licensee in compliance with all terms and conditions of the WA No.1460/0824License Agreement to be entered into with the Licensor, in theevent of the Bidder being selected as the Licensee.The Consortium Agreement entered into among the Members ofthe Consortium should be specific to this project and should contain theabove requirements, failing which the proposal shall be treated asnon-responsive. The Bidder is free to submit the Consortium Agreementin its own format. (Annexure 6) (to be submitted by the Bidder as P4).The consortium shall obtain a legal opinion by a lawyer/law firm ofnational/international standing that the Consortium Agreement is validand binding and has all the required approvals to submit the Proposal.the Bidder is required to submit the legal opinion in its own format(Annexure 7) (to be submitted by the Bidder as P5).All pertinent information that may adversely affect the performance orthe responsibilities of any Consortium member, such as ongoinglitigation, financial distress or any other such matter must be disclosed inthe formate given at Annexure 8 (to be submitted by the Bidder as P5).13.8 DeviationsThe Bidder shall not be allowed any deviation and/or deficiencies in theBidder's full compliance with the requirement of the RFP.14. Bidders Responsibility:14.1.The Bidder is expected to examine carefully the contents of all the WA No.1460/0825documents provided. Failure to comply with the requirements of RFPwill be at the Bidders own risk.21. Opening of Proposal by Sponsor:21.1The Outer Cover and Cover-1 (Statement of Qualification) of all thebidders who submitted the proposals shall be opened in the presence ofthe designated representatives of the Bidders who choose to attend theproposal opening on the time and date specified in the Letter of invitationin the office of the Sponsor. Bidder's representative may attend theopening and shall sign a register as proof of their attendance. Bidders'names and any such other details as the Sponsor may considerappropriate, will be announced by the Sponsor at the time of opening ofthe outer cover and Cover.1 (Statement of Qualification). In the event anybid is found without proposal security in the outer cover, Cover 1,Cover 2 and Cover 3 of the bidder will be returned unopened.21.2The Cover - 2 (Technical Proposal) of only those bidders who havepassed the Qualification Criteria shall be opened and evaluated.21.3The Cover - 3 (Financial Proposal) of only those bidders who becomeeligible after the evaluation of technical proposal shall be opened. Thetime and date of opening of financial proposals shall be informed to theeligible bidders, giving minimum 7 days prior notice, to enable themattend the bid opening. WA No.1460/082622Examination of Proposals:22.1Non Responsive Proposals: The Sponsor will examine theProposals to determine whether they are complete, whether thedocuments have been properly signed and whether the Proposals aregenerally in order. Any proposals found to be non-responsive, inter alia,for the following reasons:a.received after the Proposal Due Date.b.not signed, sealed and marked as stipulated in para 15.16.c.does not contain the information, payment and documents (in formatsspecified if any), as requested in the RFP.d.does not mention the Proposal Validity Period as set out in Para 17.e.inconsistencies between the Proposal and the supporting documents.will be rejected by the Sponsor and not included for furtherconsideration.22.2: Detailed Examination: The Sponsor will carry out a further examinationof the Proposals in order to determine whether the Proposal submitted bythe Bidder is substantially responsive to the requirement set forth in theProposal. In order to reach such a determination, the Sponsor willexamine the information supplied by the Bidders and other requirementsin the Proposal, taking into account, inter alia, the following factors:a.Overall completeness and compliance. WA No.1460/0827b.Any deviations to the requirements stipulated in the Proposal.c.Any other relevant technical factors that the Sponsor deems necessaryor prudent to take into consideration including interpretations of theBidder, which are different from that of the Sponsor.d.Any factor which affects in any substantial way, the scope, quality orperformance of the project.e.Any factor which is inconsistent with the RFP.f.Any factor which would affect unfairly the competitive position ofother Bidders presenting substantially responsive bids.The Sponsor reserves the right to reject any Proposal which in its opinionis non-responsive and no request for modification or withdrawal shall beentertained by the Sponsor in respect of such Proposals.23.Clarifications on Proposals:23.1 The Sponsor, may at its discretion, call for clarification and/orpresentation from any or all Bidders, or conduct clarification meeting(s)with any or all Bidders to clarify its Proposal.27.1The Sponsor/GOK reserves the right to accept or reject any or allProposals, and to annul the proposal process and reject all Proposals atany time prior to nomination as Licensee, without thereby incurring anykind of liability, direct or indirect, to the affected Bidder(s). TheSponsor/GOK would be under no obligation to inform the affected WA No.1460/0828Bidder (s) of grounds for the Sponsor's/GOK's action.26. PROCEEDINGS IN THE WRIT APPEAL : Affidavit filed by the Law Secretary:After production of the file pertaining to the legal opinion givenby the Law Secretary, a direction was issued to the Law Secretary by this Courtto explain the circumstance in which he participated in the EC meetings on08.04.2008 and 06.05.2008 and also to explain as to why an advice was givenin spite of the fact that it was not an inter-departmental reference for legaladvice as contemplated in para 112 of the Kerala Secretariat Office Manual. 27. The Law secretary, in the affidavit, has stated that heattended the meeting on the request of the Chief Secretary over telephone as aSpecial Invitee; In the meeting held on 8.4.2008, informed the EC that sincethe documents are voluminous, a detailed examination of the documents arerequired; that upon his opinion, the EC decided to evaluate the QualificationCriteria of the appellant and opening of their Technical Bid after receivingopinion; that after receiving documents the file was sent to his subordinates forscrutiny and the Deputy Secretary (Law) drafted the opinion; that theAdditional Secretary (Law) noted in the file that an 'off the record advice / gistof points' may be furnished to the Chief Secretary as the request cannot betaken as an inter-departmental reference for legal advice as contemplated inpara 112 of the Kerala Secretariat Office Manual; that he approved the advice WA No.1460/0829of Additional Secretary and that opinion was furnished to the Chief Secretary;that since the request of opinion in the instant case was not a routine referencethrough file, the advice was not given under signature and seal; that an 'off therecord advice' was given for consideration of the meeting of the Committee;that as per rules, request for advice from Head of Departments or Governmentbodies is to be routed through the concerned Administrative Department; thatnothing in the Secretariat Manual prohibit giving advice even in the absence ofa reference from an Administrative Department; that it is usual for theMinister / Chief Secretary requests for an advice on a legal point for thepurpose of Committees of this nature; that in response to Annexure 2 letterdated 05.05.2008, he participated in EC meeting on 06.05.2008 as a Specialinvitee and that the Committee after discussions at length ultimately concludedthat the Bid submitted by the Consortium led by the appellant is non responsivein terms of RFP. 28. SUBMISSION ADVANCED BEFORE COURT IN WRITAPPEAL:Heard Sri. M.K Damodaran (Sr. Advocate) assisted by Sri.Santhosh Mathew on behalf of Appellant, Sri. C.P Sudhakara Prasad, learnedAdvocate General, assisted by Sri. T. B Hood (Government Pleader) on behalfof 1st respondent, Sri. Gopala Krishna Kurup on behalf of 2nd respondent, Sri. VChitambaresh (Sr. Advocate) assisted by Sri. Jacob Sebastian on behalf of 3rd WA No.1460/0830respondent, Sri. Rajeev Nayyar (Sr. Advocate) assisted by Sri. Paul AbrahamVakkanal on behalf of 4th respondent and Sri. Gilbert George Correya on behalfof 5th respondent. 29. Arguments of the learned counsel for the appellant:- The learned Senior Counsel for appellant, Sri.Damodaran,submits, that, the impugned judgment is liable to be set aside as it is againstthe principles of natural justice; that the Court ought not to have dismissed theWrit petition based on the reasonings stated therein whereby the opinion of lawsecretary is approved; that non-consideration of the technical and financialproposal of the appellant is unjustified, arbitrary and illegal; that the appellantis unjustifiably excluded from the zone of consideration; that the entire exerciseby respondents 1 and 2 was done in a clandestine manner to bestow unduefavour on the fourth respondent; that a strategically and economicallysignificant multi-crore project is awarded to a bidder whose bid is eight timesless favorable than that of the Appellant at a loss of about Rs. 332 crore to thepublic exchequer; that the authorities cited by the learned single judge is notapplicable to the facts of the case and are irrelevant; that opinion of lawsecretary is vitiated by mala fides; that at no point of time the advisers or theEC pointed out that the use of expression 'liability' instead of 'responsibility' isto be incorporated in the agreement whereas in the case of other bidders, suchsuggestions were not made; that right from the beginning of bidding process, WA No.1460/0831Portia Management Services was a party to the bid; that it was made very clearthat Portia was the subsidiary of Peel Ports; that the change in new agreementwas made in compliance of Exhibit P9; that the opinion of Law Secretaryvitiated the entire process of decision making by the EC and he ought not tohave been permitted to participate in EC meeting as a Special Invitee; that therespondent acted in a cunning manner so as to exclude the consideration ofappellant's bid and therefore it is prayed to allow the Writ Appeal. 30. Arguments advanced by the learned Advocate General:The learned Advocate General would submit, that, as perClause 3.4 of RFP Vol.I, only the lead member of a consortium can be changedwith prior written consent of the Sponsor. The said clause further elaboratedthat applicant is free to select the other members of the consortium and finalisethe shareholders of the consortium before the submission of proposal. RFPdoes not permit change of consortium member after the submission of theproposal. 31. It is submitted, that, the appellant along with their proposalsubmitted the Consortium Agreement dated 4.10.2007. In the said ConsortiumAgreement, Portia Management Services Ltd. signed on behalf of Peel PortsLtd.. The phrase, “on behalf of” connotes an agency, which brings about therelationship of principal and agent. It means that Portia signed the consortiumagreement as an agent of Peel Ports Ltd. WA No.1460/0832 32. It is further submitted that, on 05.1.2008, the RFP wasamended. The amendment to RFP was with regard to minimum equity stakeof the lead member in the Special Purpose Company to be formed. Since theappellant's consortium agreement was executed prior to the amendment ofRFP, in the Consortium Agreement it was not stated that the lead member shallhold a minimum equity of 26% in the Special Purpose Company. To meet theabove requirement and the notarization of signatures as also the stamping ofConsortium Agreement, the appellant, vide Ext.P9, was requested to collectthe original consortium agreement. In the fresh consortium agreement dated11.3.2008, Portia Management Services Ltd. signed the agreement on its ownbehalf. In the original consortium agreement, Portia signed on behalf of PeelPorts Ltd., and was an agent of Peel Ports. In the fresh consortium agreement,the words “on behalf of Peel Ports Ltd.” were deleted and Portia signed theconsortium agreement as a member of the Consortium. Hence there was achange in the consortium membership, which is impermissible as per Clause3.4 of RFP Vol.I. This is an incurable fatal defect.33. It is further submitted that, in the Statement of Qualificationform, the appellant had shown the financial details of MHDC (taken over byPeel Ports) and also the financial details of Peel Ports. If Peel Ports were notthe Consortium Member, their financial statements need not have beensubmitted along with the bid. WA No.1460/0833According to the appellant, Portia is the subsidiary of Peel Portsand hence the financial details of Peel Ports was submitted. Even assumingthat Portia is a subsidiary of Peel Ports and was the Consortium member as perthe original agreement, this contention is without any basis. A company beingan artificial person having separate legal entity cannot rely on the financials ofits holding company to meet the qualification criteria in a bidding process. Butfor the financial statement of Peel Ports, the Consortium led by the appellantwould not have met the financial qualification criteria as on the date ofsubmission of the bid, i.e. on 31.1.2008.It may be relevant in this regard to state that the Balance Sheetand Profit and Loss Account of the appellant for the year ending 30.9.2007 wasadopted only on 20.3.2008; much after the last date for submission of bid.According to the appellant, Portia has always been the member of theConsortium and not the Peel Ports Ltd. But the supporting documentsproduced to meet the qualification criteria were that of Peel Ports Ltd.. Insteadof Peel Ports accounts, if the accounts of the Portia were submitted (if Portia isConsortium member as claimed by the appellant) along with the bid, theappellant would not have passed the financial qualification criteria and on thatsole ground itself their bid is liable to be declared as non-responsive.34. It is submitted that, a reading of the original as well as thefresh consortium agreements would demonstrate beyond any doubt that there WA No.1460/0834has been a change in the membership of the Consortium led by the appellantafter the submission of the bid on 31.1.2008. In view of Clause 3.4 of RFPVol.1, change of consortium members after submission of the bid isimpermissible. There was inconsistency between the proposal and thesupporting documents which is a ground under Clause 22.1(e) of the RFP Vol.Ito declare a bid non-responsive.35. It is further submitted that, the appellant has stated that thewords “on behalf of Peel Ports” was deleted as required by the Advisor. TheAdvisor has not required the appellant to declare the words “on behalf of PeelPorts”. The Advisor, vide Ext.P9 letter, brought to the notice of the appellantthat Portia Management Services has signed the consortium agreement onbehalf of Peel Ports Ltd. but the Peel Ports Ltd is not a member of theConsortium. It was further observed in Ext.P9 letter, that necessarydocumentations from various consortium members authorising the signatoriesof different documents have not been submitted along with the bid. It istherefore clear that the appellant was never directed to delete the words “onbehalf of Peel Ports” in the original consortium agreement. Only defects wererequired to be cured. Instead of producing the document from the Peel PortsLtd. authorising Portia to sign the consortium agreement, the appellantproduced resolution of Portia itself and to match it with the consortiumagreement, the words “on behalf of Peel Ports” was omitted in the fresh WA No.1460/0835consortium agreement.Clause 3.5 of RFP Volume I says that all members of consortiumshall be jointly and severally liable for the execution of the Project inaccordance with the terms of the Licence Agreement and a statement to thiseffect shall be included in the Consortium/Shareholder's agreement.Clause 4.1 (e) provides that the consortium agreement shall be specific to thisproposal and clearly allocate responsibilities and duties between the membersand lead member, including percentage of shareholding. The said Clausefurther provides that notwithstanding this, the consortium members shall bejointly and severally liable to Licensor for implementation of the Project. Thelearned Advocate General invites our attention to clause 13.4 of RFP Vol.I,which reads as follows:“13.4: In case of consortium, members of the consortium shallenter into Consortium agreement for the purpose of submitting theProposal. The consortium agreement shall contain inter alia, thefollowing provisions:-a)xxxb)Outline of the proposed roles and responsibilities of eachconsortium member at various stages.c) Joint and several liability of the consortium members forimplementation of the Project.d)xxxe)xxx WA No.1460/0836The Consortium agreement entered into among the members of theConsortium should be specific to this Project and should contain the aboverequirements, failing which the proposal shall be treated as non-responsive.36. It is then submitted that the requirement of incorporating thejoint and several liability clause in the consortium agreement has been statedwith emphasis in various clauses of RFP. This was an essential condition asper RFP documents. Whether a condition is essential or collateral is to beascertained with reference to the consequence of non-compliance thereof. Ifnon-fulfilment of the requirement results in the rejection of tender, it would bean essential condition. (2002) 6 SCC 315, Paragraph 6. The consequence ofnon-incorporation of joint and several liability clause was also stated inClause 13.4 of RFP Vol.I. Bidders were sufficiently warned that the failure toincorporate joint and several liability clause in consortium agreement wouldresult in treating the proposal as non-responsive. Hence it was an essentialrequirement in the consortium agreement. It is not in dispute that the originalas well as the fresh consortium agreements submitted by the appellant did notcontain a statement to the effect that the members of the Consortium shall bejointly and severally liable to Licensor for the implementation of the Project.37. It is further submitted that, it was the duty of the appellant toensure that the documents it had submitted complies with the requirement ofRFP. In three different clauses of RFP Vol.I, it was clearly mentioned that the WA No.1460/0837consortium agreement should contain a statement to the effect that themembers of the consortium shall jointly and severally liable for theimplementation of the project. Consequence of non-incorporation of such astatement in the consortium agreement was also stated in clause 13.4 of RFPVol.1.38. It is further stated that, paragraph 8 of RFP Volume 1,Section 1 warns the bidders that, failure to comply with the requirement ofRFP and submission of proposal shall be at the bidders own risk. Inparagraph 9 of the RFP Volume I, Section 1, the bidders were required tocarefully review the contents of RFP; seek necessary clarifications, if any; andraise questions about ambiguities and concerns. Clause 14 of RFP Vol.ISection IV, requests the bidders to examine carefully the contents of all thedocuments provided and states that failure to comply with the requirement ofRFP will be at the bidder's own risk Therefore, the responsibility of making thebid complaint with RFP provisions solely rests with the bidders.The Sponsor, of course, can call for clarification from thebidders. But neither the Sponsor nor does the Licensor owe any duty orresponsibility to the bidder to point out the vital defects in the documents it hadsubmitted. In an international tender of this nature, where the bidders have theassistance of legal experts, they are expected to comply with the essentialrequirements of RFP. The degree of care required in such bidding is greater WA No.1460/0838than in ordinary local bids for small works (2001) 2 SCC 451, Para 23, 24 and31. The Supreme Court had held in (1990) 2 SCC 488 Para15 that, the partyissuing the tender has the right to punctiliously and rigidly enforce them.39. Learned Advocate General points out that, according to theappellant, examination of the proposal should have been undertaken by theSponsor and not by the Evaluation Committee. This contention, which has nofoundation in the pleadings, is raised referring to Clause 22 of RFP Vol.I,Section IV.40. It is also stated that the licensor is not powerless to evaluatethe proposals submitted by the bidders. The Licensor's power can be traced toparagraph 5 of RFP Volume 1, Section I. The Government being theLicensor, constituted Bid Evaluation Committee to evaluate the proposals.The Committee was constituted as per a Government Order, on a request fromthe Sponsor. The Senior Officers of the Sponsor were members of the BidEvaluation Committee. The ultimate authority to take a decision in the matterof awarding contract to the successful bidder is the Government of Kerala.The Government can therefore constitute various committees to facilitate thedecision making process. In a multi tire decision making process, theGovernment which has to take the final decision, can constitute any number ofCommittees even if the same is not specified in the RFP. It is relevant in thisregard to refer (2006) 10 SCC 1, Para 14, 24 and 25, wherein the WA No.1460/0839Honourable Supreme Court has negatived a similar approach.41. It is further stated that the Sponsor has invited proposals onbehalf of the Government of Kerala. Government designated the Sponsor asthe Nodal Agency for the implementation of the Project. Sponsor wastherefore an agent or delegate of the Government. Delegation of power doesnot amount to denudation of the delegator's authority. Whatever, theagent/delegate can do, can be done by the Principal/Delegator also. Therefore,there was nothing wrong in the Bid Evaluation Committee, constituted by theGovernment on the request of the Sponsor, examining the proposals. Thereport of the Bid Evaluation Committee was only in the nature of arecommendation. The same would have been the position had the bids wereevaluated by the Sponsor. The Government is not bound by therecommendation. The Government may fully accept or reject therecommendation. The report is an input for taking a final decision by theGovernment. The Council of Ministers, which is the highest decision makingbody in the executive hierarchy, took the final decision.42. Learned Advocate General further points out that the ProjectAdvisor got the legal aspects of the documents submitted by the biddersexamined by their legal consultant, M/s.Universal Legal, Bangalore. Theadvice tendered by Universal Legal is quoted at para 2.4 of the minutes of theBid Evaluation Committee meeting held on 25.2.2008. After the submission WA No.1460/0840of bids, the appellant submitted fresh consortium agreement dated 11.3.2008and the consortium led by Nagarjuna submitted a joint venture agreementdated 7.3.2008. The original consortium agreement of the appellant wasreturned to meet the requirement of 26% equity stake in the Special PurposeCompany and the notarization of signatures as also the stamping of consortiumagreement. In the Memorandum of Understanding submitted by Nagarjuna, itwas stated that the same would have validity till the rejection of the proposalsubmitted by the Consortium or entering into a joint venture agreement uponthe Project being awarded to the consortium. So the MoU was returned toNagarjuna.43. The learned Advocate General would further submit that,both the appellant and Nagarjuna submitted fresh consortium agreement andjoint venture agreement executed in March, 2008, i.e. after M/s.UniversalLegal tendered their advice on the legal aspects of the documents. No otherbidders had submitted fresh consortium agreements after the submission of thebid on 31.1.2008. The fresh consortium agreement and joint ventureagreement submitted by the appellant and Nagarjuna were given by the ProjectAdvisors to their legal consultant, M/s.Universal Legal, which on 4.4.2008gave an opinion.44. It is stated that the Project Advisor, IL & FS prepared thenote for Evaluation Committee meeting on 8.4.2008. Along with the note for WA No.1460/0841the Bid Evaluation Committee meeting on 8.4.2008,. the Advisor annexed thesummary of the points for consideration of the Law Department. For easyreference, Para 4.4 of the note prepared by the Advisor is reproduced below:“4.4. A summary of the clarification required in theoriginal bids and clarifications/additional informationfurnished by Bidders in annexed. Also annexed is a summaryof points for legal consideration, which have been vetted by alegal Consultant”The first annexure referred above is at Page 497, 498 and 499 of Vol.II of WritAppeal Paper Book. The second annexure, which is the legal points forconsideration of the Law Department, is at Page 506 and 507. The secondannexure should have been arranged in continuation of page No.499. In theGovernment file, produced before this court, and in the report submitted beforethe learned Single Judge, the second annexure was arranged as a continuationof the first annexure. The change in the pagination was done by the appellant.45. It is further stated that, in the points for legal considerationof the Law Department, prepared by the Project Advisor, A(5) refers to thefresh consortium agreement of the appellant dated 11.3.2008 and B(4) refersthe fresh Joint Venture Agreement dated 7.3.2008 submitted by Nagarjuna. InClause (C) also, reference to these documents are made. 46. Learned Advocate General further points out that onreceiving the note for the Bid Evaluation meeting on 8.4.2008, the Chief WA No.1460/0842Secretary, who is the Chairman of the Bid Evaluation Committee, requestedthe Law Secretary to be present in the Bid Evaluation Committee. The ChiefSecretary informed the Law Secretary that a formal request in this regardwould be made by the Sponsor. The Law Secretary thereafter receivedAnnexure I letter produced along with his affidavit. Accordingly, the LawSecretary attended the meeting on 8.4.2008 as a Special Invitee.47. The learned Advocate General also states that the freshconsortium agreement dated 11.3.2008 was placed before the Bid EvaluationCommittee for the first time on 8.4.2008 . Even before the discussion with theLaw Secretary in the meeting, the Committee at Para 2.1 (iv)(2) noted that thePortia signed fresh consortium agreement instead of “on behalf of Peel PortsLtd.” as mentioned in the original consortium agreement. The Committeethereafter discussed the JV agreement dated 7.3.2008 submitted by Nagarjuna.The Committee then noted that the responsiveness of the bid submitted by theappellant needs to be ascertained keeping in view of the ConsortiumAgreement dated 11.3.2008 which prevails over and supercedes the originalconsortium agreement dated 4.10.2007 submitted along with the bid. TheCommittee after taking note of the opinion of M./s. Universal Legal sought theviews of Law Secretary. Since the documents to be verified were voluminous,the Law Secretary sought time for a detailed examination to ascertain whetherthe documents submitted would comply with the provisions of law and RFP WA No.1460/0843documents. As submitted earlier, the Bid Evaluation Committee, was notdischarging any statutory or quasi judicial functions. The duty of theCommittee was to facilitate an administrative decision making process. It maynot be legally permissible for a statutory or quasi judicial body to invite aperson who is not a member of that body. But a committee of this natureconstituted to assist the government, which is the final authority can invite ortake advice from experts in the respective field to arrive at a correct decision.48. It is further stated that, the bid evaluation committee wasconstituted by the Government. The Law Department's participation in theprocess of evaluation was taken note of by the Government as evidenced byAnnexure 3 Government Order produced along with the affidavit of the LawSecretary. Therefore, the Law Secretary's participation in the Bid EvaluationCommittee in any case stands ratified. In support of this contention, thelearned Advocate General relies on the following decisions:1. (1989) 3 SCC 132, Para 26, 27, and 28.2. (2003) 4 SCC 239, para 42. 49. Learned Advocate General also points out that the entireprocess of bid evaluation had culminated in the Government issuing G.O.(Ms)No.28/08/F & PD dated 24.5.2008 approving the proposal submitted by theconsortium led by the 4th respondent. Copy of the said Government Order was WA No.1460/0844handed over by the learned Advocate General to the counsel for the appellantwhen the case came up for consideration in the last week of May, 2008. In anote dated 30.5.2008, filed at the original stage, the learned counsel for theappellant admitted that he had received a copy of the Government Order. Butthe appellant has not amended the writ petition to challenge the final decisiontaken by the Government. As submitted earlier, the decision of the BidEvaluation Committee was only recommendatory in nature. The final decisionwas taken by the Council of Ministers. The decision of the Council ofMinisters was followed by the Government Order. In the absence of anychallenge against the Government Order, the petitioner cannot seek any relief. 50. Learned Advocate General further points out that therecording of reasons in an order or decision serves two purposes. One is toenable the person affected by an order to know the reasons for passing such anorder. The second is to enable the appellate authority or the court exercisingjudicial review to ascertain the reasons for passing an order. As per Clause 27of RFP Vol.I, the Sponsor/GoK is not under any obligation to inform theaffected bidder of the grounds for the Sponsor/GoK's action. Therefore, thebidder has no right to know the reasons for the rejection. 51. It is further submitted that a reading of the entire report ofthe Bid Evaluation Committee discloses the reasons for treating the appellant'sbid non responsive. Even if an administrative decision does not ex facie WA No.1460/0845disclose the reasons, the decision can be sustained by explaining the reasonswith the help of records available on file. The same principles may not applyto statutory or quasi judicial decisions. In aid of this submission, the learnedAdvocate General relies on the following decisions:1. (1991) 3 SCC 38, para 8, 9 and 10.2. 1991 (Supp) (1) SCC 161, para 6.3. (1991) 1 SCC 212, para 13.4. (1995) Suppl (1) SCC 434, Para 12.5. 1992 (1) KLJ398, Para 86. AIR 2006 Mad. 45, para 4 and 5.52. As regards the scope of Judicial Review in Contractualmatters, learned Advocate General submits that, selection of a bidder byGovernment for execution of a Project is essentially an administrative action.Principles relating to the scope of judicial review of administrative decisionsand exercise of contractual powers by government bodies have beenconsidered in detail in Tata Cellular vs. Union of India. The HonourableSupreme Court held that judicial review is concerned with the decision makingprocess. In para 93, it was held that the duty of the Court is to confine itself tothe question of legality. In para 113 of the said judgment, the Hon'bleSupreme Court has summarised the principles relating to the scope of judicialreview in contractual matters. (AIR 1996 SC 11). WA No.1460/0846 In Air India Ltd. vs. Cochin International Airports Ltd.(2000) 2 SCC 617, para 7, the Apex Court, after a review of the variousjudgments on the point, held that even when some defect is found in thedecision making process, the Court must exercise its discretionary power underArticle 226 with great caution and should exercise it only in furtherance ofpublic interest and not on making out a legal point. The court further observedthat the court should always keep the larger public interest in mind in order todecide whether its intervention is called for or not. Only when it comes to theconclusion that overwhelming public interest requires interference, the courtshould intervene. A similar view was expressed by the Hon'ble SupremeCourt in AIR 1999 SC 393, Para 11. In that judgment, the Apex Courtobserved that, it is important to bear in mind that by Court intervention, theproposed project may be considerably delayed and therefore, unless the Courtis satisfied that there is substantial amount of public interest or the transactionis entered into mala fide, the Court should not intervene under Article 226 indisputes between two rival tenderers. In (2005) 6 SCC 138, Para 12, theCourt held that modern trend points to judicial restraint in reviewingadministrative actions. In para 15, it was held even when some defect is foundin the decision making process, Court must exercise its discretionary powerwith great caution. WA No.1460/084753. Learned Advocate General also relies on the decisions ofthe Apex Court reported in (2006) 11 SCC 548 - Paras 56 & 69; 2001 (2) SCC451, para 23, 24, and 31: and (1990) 2 SCC 488, which are stated to berelevant in deciding the present case.54. Learned Advocate General would submit that the allegationregarding mala fides is pale and not sufficiently pleaded; that the appellant wasgiven sufficient opportunity and time to produce documents; that the change ofconsortium member after the submission of the bid is not permissible; that thesubmission of fresh consortium agreement on 11.03.2008 ie; after the due datefor submission of RFP is not permissible; that joint and several liability clausein the RFP is very relevant and without agreeing for the 'liability' it is notpermissible for parties in the consortium to proceed with the bid; that the jointliability clause is an essential clause; that it is the duty of appellant toincorporate to check the requirements in terms with the RFP documents and ata later stage they cannot turn around and say that they were not put to notice inthis regard; that the government is free to constitute as many number ofcommittees as necessary for the purpose of evaluation of bid; that theparticipation of Law Secretary in the EC meeting cannot be found fault withand the EC is competent to seek opinion from law secretary; that as per theclause in RFP, the sponsor is under no obligation to assign reason for rejectionof bid and as such the bidder is having no right to know the reasons for WA No.1460/0848rejection; that the decision of EC being an administrative decision, the reasonscould be assigned later with the aid of files; that the scope of judicial review inthe instant case is very limited and therefore the Writ Appeal is only liable tobe dismissed. 55. Arguments of learned Senior Counsel for 4 th respondent : Sri.Rajiv Nayyar, learned Senior Counsel for the 4threspondent would submit that, the Evaluation Committee was the soleauthority to complete the selection process and finalize the successful bidder.The sponsor of the Project, under the various provisions of the bid documents,had the right to accept or reject the proposals which were found to benon-responsive. The external agency engaged by the Sponsor viz., IL&FS, wasengaged to assist the Sponsor of the Project in the selection process, and theSponsor in turn placed all materials before the Bid Evaluation Committee forfinalisation of selection process. The advice of IL&FS was not at all bindingon the Bid Evaluation Committee or the Sponsor. IL&FS had a limited role inthe bid process, which was only to assist the Licensor/Sponsor in selectionprocess.56. It is further submitted, that, in pursuance of the constitutionof the High Empowered Evaluation Committee, at the meeting held on 25thFebruary, 2008, clarifications/additional information were sought for from thebidders. This is in tune with Clause 23.1 of the RFP empowering the Sponsors WA No.1460/0849to call for clarification/information from any bidder. From time to time, timewas extended for the eligible bidders to furnish the information and answer theclarifications sought for an in the case of Zoom, the appellant herein andApollo, time was finally extended till April 8th 2008. In so far as other threebidders are concerned, namely, NCC, Videocon Industries and the 4threspondent, all information being forthcoming, they were held to bepre-qualified at the meeting of the Evaluation Committee held on 8th April2008. Since Apollo did not furnish the requisite information, no furtherconsideration of the bid was made but insofar as the Appellant is concerned, itsbid was evaluated on 6th May, 2008 and was found to be non-responsive. It isalso pointed out that the Bid Evaluation Committee for a more transparentevaluation of the bid of the appellant had also sought the advice of the LawDepartment of Kerala.57. It is further argued by the learned Senior Counsel Sri.RajivNayyar, that, the appellant's consortium agreement dated 11th March, 2008 and10th March, 2008 along with other documents, were examined by theEvaluation Committee in the light of the advice of the Law Department on 6thMay, 2008 and it was found to be non-responsive on two heads; (i) failure ofthe appellant Consortium to provide in the Consortium Agreement, the jointand several liability of the consortium members for implementation of theproject; (ii) change in the member of the consortium without the WA No.1460/0850consent/approval of the Sponsor.58. It is pointed out that, in so far as the first ground for rejectionis concerned, the holistic reading of clauses 3.5 and 4, clause 13.4 and areference to the Consortium Agreements dated 4th October, 2007 and 11thMarch, 2008 would ex facie make the Appellant non-responsive. In fact, theRFP at various places makes it incumbent in cases where consortium is foundthat each of the members should assume joint and several liability forimplementation of the project. In fact, the Consortium Agreement furnished bythe appellant postulates to the contrary by providing that, “none of the partieswould incur any liability on behalf of the others”. The use of the words,“jointly and severally responsible” in the two consortium agreements was doneso conscious of the restriction/impediment in the consortium agreementstipulating that none of the parties would incur any liability on behalf of theothers. To elaborate the first ground of rejection further, the appellant failedto fulfil the mandatory conditions of the RFP in respect of incorporation of“joint and several liability of the consortium members to the Sponsors” asstipulated.59. Learned Senior Counsel further urged, that, the clausestermed under 'mandatory' denote that, the same shall be strictly adhered withand no deviation from the same is permitted. When such mandatory clauses areincorporated in the RFP, the bidders have no choice except to follow the same. WA No.1460/0851Further the said mandatory clauses as mentioned above are simple, clear andwithout any ambiguity. In case of any ambiguity of the clauses of the RFP,opportunity is provided to the intending bidders to seek clarifications on thesame and as no clarifications are sought by any of the bidders including theappellant herein on the above clauses, it is deemed that the same are understoodand accepted by all the bidders and any deviation from the same shall be treatedas non fulfilment of the mandatory clauses by the bidders and as such,non-responsive. But the appellant, contrary to the mandatory clauses, as statedabove, incorporated the words “jointly and severally responsible” in both theconsortium agreements dated 04.10.2007 and 10.3.2008. On a plain reading ofthe consortium agreements submitted by the appellant both on 4th October,2007 and 11th Mach, 2008, it can be seen that the appellant Consortium wasnever intending to bind themselves to be held liable to the Project Sponsor or tothe State of Kerala towards the execution of the Project at hand.60. It is also argued, that, the contention of the appellant thatM/s.Apollo Consortium was given opportunity to include the words jointly andseverally liable in their agreement is absolutely false and misleading as it wasclearly understood that the said consortium submitted the bid including thewords “jointly liable” but omitted to include the word “several”. Hence thecontention of the appellant that a fellow bidder was given leverage to includethe word “liable” is absolutely wrong and incorrect. The learned Single Judge WA No.1460/0852has also verified all the consortium agreements submitted by the other fourbidders and upon verification, was satisfied that other than the appellant, allothers have mentioned the word “liable” in their agreements. So much so, theappellant cannot now harp on the point saying that they should have been givenan opportunity, when none of the others were given an opportunity to add theword “liable” into their agreements. The contention of the appellant that theadvisor or the Sponsor or the Bid Evaluation Committee were under theopinion that the usage of “responsible” instead of the word “liable” was foundto be substantial compliance of the terms of the RFP, is wrong. Neither theSponsor nor the State nor the Bid Evaluation committee were ever given theopinion that the use of the word “responsible” instead of the word “liable”would be substantial compliance of the RFP conditions. The “liability” of themembers of the Consortium is to the Sponsor and the “responsibility” is onlyamong the members of the Consortium, as rightly held by the learned SingleJudge. Learned Senior Counsel further submitted that the Government and theProject Sponsor and the Bid Evaluation Committee only followed the correctprocedures/rules and regulations and conditions in the RFP, and nothingarbitrary was done by them.61. As regards the second ground for disqualification, the learnedSenior Counsel pointed out that the Appellant itself intended that theConsortium Agreement dated 11th March, 2008 should prevail over the WA No.1460/0853October, 2007 Agreement, whereas in the October 2007 Agreement, Portiasigned the Consortium Agreement on behalf of Peel Ports Ltd. and alsosubmitted the profit and loss accounts and the balance sheet of Peel Ports Ltd.In the new Consortium Agreement dated 11th March 2008, Portia describeditself to be a member of the Consortium in its own right and submitted its ownfinancial information in support thereof. This obviously means that Portiaintended itself to be considered as such. This was obviously not in accordancewith the RFP because clause 3.4 puts an embargo on any change in themembers of the Consortium after the submission of the bid. The only restrictedright of change permitted by the RFP is in the change of a lead member amongthe Consortium members with prior written consent of the Sponsor, but it is notpermitted to change a member of the consortium even with the consent of theSponsor. To elaborate the second ground or rejection, the appellant hasprojected M/s.Peel Ports Ltd. as the consortium member, which is very clearfrom the consortium agreement dated 4.10.2007, which clearly states, that,“Portia Management Services Ltd. on behalf of Peel Ports Ltd”. This can onlymean that Portia Management Services acted on behalf of Peel Ports and theappellant never projected Portia Management Services as the consortiummember. Further this Consortium Agreement could not have been held to be avalid one due to the reason that, though Portia signed on behalf of Peel PortsLtd., they were never authorised to do so. The appellant did not submit any WA No.1460/0854documentary proof to the Sponsor that Portia is authorised to sign on behalf ofM/s.Peel Ports Ltd. The explanation given by the appellant to say that Portiawas the “International Arm of Peel Ports Ltd.” is also not convincing orrelevant in the present context as no document was produced to prove Portia asthe international arm of Peel Ports Ltd. Merely contending that it is aninternational arm of an organisation does not, by itself, mean an authorisationto sign for and/or on behalf of that organisation. Further, the intention ofPortia to project M/s.Peel Ports is also clear from the fact that the financials ofPeel Ports were produced along with the initial bid proposals. Signing withoutauthority and producing financial statements without proper authority does notdivulge a genuine intention, and in the best interest of the State, the State andthe Sponsor thought it fit to reject such a bidder at the pre-qualification stageitself, which was also upheld by the learned Single Judge.62. It is further argued by the learned Senior Counsel Sri.RajivNayyar that, the contention of the appellant that the third respondent, IL&FSwas satisfied with the contents of the revised consortium agreement, dated11.3.2008 is incorrect and the IL&FS has also limited role in the process as anadvisor and facilitator to collect required information from the intendingbidders and place such information furnished by the bidders before the Sponsorwho in turn places the same for evaluation before the Bid EvaluationCommittee. As such the contention of the appellant that the consortium WA No.1460/0855agreement, dated 11.3.2008, was accepted by IL&FS is incorrect. Further,IL&FS never asked for any documents to be produced by the appellant as seenfrom the contents of Ext.P9.63. Learned Senior Counsel further states that, in a contractualmatter, when a tenderer is disqualified by the expert committee, such a decisioncannot be interfered with unless the decision making process is vitiated, whichhas been rightly held so, by the learned Single Judge. It is a well settledproposition that the court will not interfere with the merit of the decision of theexpert body, but will only review the decision making process. The learnedSingle Judge was perfectly justified in not interfering with the decision of theBid Evaluation Committee and the Sponsor to disqualify the petitioner in thepre-qualification stage. Further, the learned Single Judge rightly observed thatthe financial bid of a tenderer, who is so disqualified in the pre-qualificationstage is not required to be opened in exercise of judicial review, bypassing thedisqualification made by the expert committee.64. It is further pointed out by the learned Senior Counsel thatthe decision of the Bid Evaluation Committee in the meeting held on 6th May,2008 holding the appellant to be non-responsive is well founded as would beborne from the narration of the infirmities in its bid as detailed above. In theminutes of the meeting of 6th May, 2008, namely Clause 2.3 (at page 514 ofVol.II - WA), the Evaluation Committee independently came to the conclusion WA No.1460/0856that the bid of the Appellant was not responsive. Of course, due regard wasgiven to the advice of the law department, which was in consonance with itsown view.65. It is further urged that the terms and conditions of the RFPdo not impose any obligation on the Sponsor to inform the bidders about theirdecision in treating any bid as non-responsive. Elaborate reasons or anyfurther justification was to be done by the Evaluation Committee since theprocess of finalising the tender at best is only an administrative decision and assuch the decision need not be reasoned. In support of this contention, thelearned Senior Counsel relies on the following decisions:1. Kumari Srilekha Vidyarthi vs. State of U.P. and Ors.(1991) 1 SCC 2122. National Institute of Mental Health & Neuro Sciences vs. Dr.K.Raman &Ors, 1992 (Supp) 2 SCC 481.3. S.N.Mukherjee vs. Union of India, (1990) 4 SCC 594.4. Union of India & Ors. vs. E.G.Nambudiri (1991) 3 SCC 38.5. Sarat Kumar Dash & Ors. vs. Biswajit Patnaik & Ors. 1995 (Supp) 1 SCC434.66. The learned Senior Counsel further submits that it is alsosettled that writs should not be issued by the Courts of Law simply as a matterof course to satisfy an empty formality. To support this contention, the learnedSenior Counsel relies on the following decisions: WA No.1460/08571. S.I. Kapoor vs. Jagmohan & Ors. (1980) 4 SCC 379.2. Divisional Manager, Plantation Division, Andaman Nicobar Islands vs. Munnu Barrrick and Ors. (2005) 2 SCC 237.67. As regards the scope for interference, it is submitted, in thecase of tender, is very restricted or limited. In aid of this submission, thelearned counsel relies on the following decisions.1. Tata Cellular vs. Union of India & Ors. (1994) 6 SCC 6512. Air India Ltd. vs. Cochin International Airport and Ors. (2000) 2 SCC 617.3. Reliance Airport Developers vs. AAI & Ors (2006) 10 SCC 1.4. W.B.State Electricity Board vs. Patel Engineering - (2001) 2 SCC 451.68. Arguments of learned Senior Counsel for 3 rd respondent :- Sri.Chithambaresh, learned Senior Counsel for the 3rd respondentwould submit that in the absence of necessary averments in the writ petitionand also proper prayer, that presence of averments confining the relief andlimiting the scope of adjudication, this court while considering the writ appealfiled by the appellant should not permit the appellant to urge any other groundother than what was contended in the writ petition and further in the absence ofprayer to quash the decision dated 6.5.2008 of the Bid Evaluation Committee,it may not be proper for the court, at this stage, to entertain the request of theappellant. Failure to amend the writ petition even after production ofdocuments by the State in the Court, is fatal to the appellant. It is also WA No.1460/0858contended that the bid evaluation committee need not assign any reason whilerejecting the bid as non responsive and lastly the presence of the Law Secretaryin the meeting of the bid evaluation committee is also irrelevant for thepurpose of deciding the issues raised in the Writ Appeal.69. Arguments of learned counsel for 2 nd respondent :- Sri.Gopalakrishna Kurup, learned counsel for the 2nd respondentadopts the arguments canvassed by learned Advocate General and also takes usthrough the affidavit filed by the 2nd respondent in the writ petition. DISCUSSION70. Having regard to the arguments canvassed, the followingissues would arise for our consideration. They are:-I. What should be the approach of Court in a matter of this nature? II. Whether the decision making process adopted by the Bid EvaluationCommittee, whereby the appellant's bid is found non responsive iscorrect or not? If so, whether the appellant was discriminated andjustifiably excluded from the zone of consideration? III. Is the judgment of the learned single judge sustainable? IV.Whether failure to give reasons by the administrative authorityamounts to denial of justice. WA No.1460/085971.Point No I. What should be the approach of Court in a matter of this nature?While judicially reviewing an administrative decision thatinvolves of a tender process or contract of this nature, the Courts are not verymuch concerned about the merits of the decision, but concerned with theprocess of decision making. Law in this regard is well settled and need not bereiterated. Development of law in this regard from the celebrated decision ofSupreme Court in R D Shetty v. International Airport Authority AIR 1976 SC1628 is steady and unambiguous. If the decision making is vitiated by anyreason, then the Courts will interfere. (See Tata Cellular v. Union of India AIR1996 SC 11 (paragraph 113); Air India Ltd. v. Cochin International AirportLtd. (2000)2SCC 617 (paragraph 7) and B.S.N Joshi & Sons Ltd v. Nair CoalServices Ltd & Others (2006) 11 SCC 548 (paragraph 66); See also RelianceEnergy Ltd & Anr MSRDC Ltd (2007) 8 SCC 1; Reliance Airport DevelopersPvt. Ltd v. Airport Authority of India (2006) 10 SCC 1; M P Jain and S N Jain,Principles of Administrative Law, 4th Ed (2005 Reprint) Chapter XXII).72. Point No II. Whether the decision making process adopted by the BidEvaluation Committee whereby the appellant's bid is found non-responsive iscorrect or not? If so, whether the appellant was discriminated and justifiablyexcluded from the zone of consideration? WA No.1460/0860As per the provisions of RFP, the proposed bidder has to submitits Proposal constituting an Outer Cover (covering letter, details of bidder,power of attorney, consortium agreement, 50 million bank guarantee etc),Cover 1 (statement of qualification), Cover 2 (technical proposal) and Cover 3(financial proposal). Evaluation is carried out in three stages and in the 1ststage, only Outer Cover and Cover 1 will be opened and evaluated. Onlybidders who qualifies this stage will be considered at the Cover 2 stage.Similarly, the financial proposal of only those bidders who secured a minimumof 70 out of 100 marks in technical evaluation will be opened. Outer Cover ofall the five bidders were opened on 31.01.2008 by the 'Bid Opening Committee'constituted by the 1st respondent and found that all the 'five bidders havesubmitted valid Proposal Security of Rs. 50 million in the form of bankguarantee, Consortium Agreement and other documents as per RFP.Accordingly the committee opened the Cover 1 and contents were read out'. Atthis stage, representatives of 2nd and 3rd respondents were present. 73. The Bid Evaluation Committee (EC) constituted by the 1strespondent for the purpose of evaluating the bid, met on 25.02.2008 and foundthat all the five bidders need to furnish some more details / information /documents and accordingly intimated the bidders. The EC further notedopinion of M/s Universal Legal, Bangalore . 'legal advisers of the Project' anddirected all the bidders to submit the additional details / information / WA No.1460/0861documents within ten days. With regard to the appellant's bid it is noted that'power of attorney as well as consortium agreement is not duly stamped, it isnot specifically mentioned that lead member will hold 26% equity in SPC andM/s Peel Ports is not a member of the consortium. Meanwhile on 03.03.2008,the 3rd respondent - Adviser to the Project, issued Exhibit P9 letter to theappellant asking them to furnish some documents / clarifications in additionalto the points sought by EC. In fact the 3rd respondent also participated in theEC meetings. In response to Exhibit P9, the appellant issued Exhibit P10 replyessentially pointing out that - “As you are aware our consortium agreement wasexecuted on 4th October 2007 and thereafter several modifications were madeto the bid document. We are now required to execute a fresh agreementincorporating these amendments along with supporting documents...”Subsequently the appellant submitted the fresh agreement and otherdocuments. New Consortium Agreement was executed on 11.03.2008. 74. In the 2nd EC meeting on 13.03.2008, it is noted that threeConsortium submitted the additional documents and two other Consortium(s)including the appellant sought further time to submit the documents andaccordingly time was granted. Vide Exhibit P15 letter dated 19.03.2008, the 3rdrespondent asked the appellant 'to get the new consortium agreement needs tobe stamped in accordance with law and all pages need to be signed by allmembers. In order to obtain signatures of all the members (some of them are WA No.1460/0862abroad), appellant vide Exhibit P16 dated 20.03.2008 sought time till04.04.2008. In reply, Exhibit P17 dated 27.03.2008 was issued by the 3rdrespondent granting a last chance to appellant and cautioned them that in theevent of their failure to submit the documents and / or to fulfill therequirements in accordance with the requirements of RFP, and in accordancewith law, the Government of Kerala reserves the right to proceed with the bidevaluation process based on the submissions made by the company.Subsequently on 02.04.2008, the appellant submitted all the documents. on04.04.2008, legal advisers of the Project furnished their opinion stating that“further the consortium lead by Zoom Developers Ltd has submitted a freshconsortium agreement dated 11.03.2008 drawing reference to and supersedingthe Consortium Agreement submitted earlier with the original bid documents,towards complying with the provisions of RFP. In our view, theJV / Consortium Agreement submitted as above, by the Bidders, based on therequest for the same pursuant to the decision of the Evaluation committee,complies with the requirements of RFP and appears to be in accordance withlaw. The Evaluation Committee may consider the submissions in the light ofabove.”75. The 3rd EC meeting held on 08.04.2008 considered thedocuments submitted by the appellant along with the above referred legalopinion and arrived at the conclusion that “Portia Services themselves have WA No.1460/0863signed the 'Consortium Agreement' instead of 'on behalf of Peel Ports Ltd' asmentioned in the original consortium agreement” and therefore decided to seekthe opinion of Law Secretary on this point. In the said meeting, it was furtherdecided to open the technical bid of the three qualified bidders. Accordinglythe opinion of law Secretary was sought. Opinion of law secretary is extractedabove and according to it, two major defects were pointed out with regard tothe bid submitted by the appellant: 1. The new consortium agreement dated11.03.2008 cannot be treated as part of original proposal as it is entered into bynew members (Portia Management Services signed it without the authorisationof Peel Ports) and 2. There is no provision in the Consortium Agreement to theeffect that there will be joint and several 'liability' for the members in executingthe project and the appellant only used the expression 'responsibility' that isdifferent. 76. In the 4th EC meeting held on 06.05.2008, after deliberatingthe opinion of Law secretary it was concluded that the bid submitted by theappellant is 'non-responsive'. 77. Whether the EC should have taken a decision based on theopinion of Law Secretary? It is necessary to note that decision of EC, especially with regardto the responsiveness of the bid submitted by the appellant was taken based onthe opinion of the law Secretary. In fact, according to the affidavit filed by the WA No.1460/0864Law Secretary himself, he participated in the meeting pursuant to a 'telephonicrequest' from chief Secretary. It is further admitted that the so called opinion isonly “an unsigned and unsealed, off the record advice / gist of points.” Evenaccording to the law secretary himself, the same is not a valid legal opinionstricto sensu as it is not sought or furnished in obedience with Paragraph 112 ofthe Kerala Secretariat Office Manual or other relevant Rules. As per therelevant Rules, the opinion of the law department could be sought only inproper channel ie; the request shall be routed through the concernedAdministrative Department. In the present case, the 2nd respondent could havesought opinion from the Law department through the department of Ports (theconcerned administrative department) and admittedly the advice of LawSecretary is not obtained in accordance with this procedure. In para 3,Chapter IV of the Kerala Law Department Manual it is stated that, “Areference to the Law department for their opinion on any legal matter may bemade by any Department of the Secretariat. The Heads of Department shouldnot directly refer any matter for the opinion of the law department. They shouldaddress the Administrative department concerned and the AdministrativeDepartment after examining the question shall forward their remarks to theLaw Department. If any reference is received direct from the Head ofDepartment it shall be returned to him for forwarding it to the concernedAdministrative Department”. Similarly the other provisions in Ch. IV of the WA No.1460/0865Manual is also not followed in this case. The law department Manual detailsthe discipline / procedure to be followed while seeking advice of lawdepartment. Since it is an advice of the concerned department of theGovernment, the same has to follow all the procedural requirements stipulatedin this regard and in obtaining such advice if procedural formalities stipulatedin law is not followed, it cannot be treated as a valid legal advice. Thejurisprudential accuracy of the opinion is not the matter for concern but theprocedure by which the same is obtained. Therefore the so called 'unsigned andunsealed, off the record advice / gist of points' furnished by the Law Secretarybefore the EC cannot be treated as a valid legal advice from the lawdepartment and as such the reliance of the EC on the same is not proper. Suchadvice could at the most be treated as an opinion from an expert. Again, thelegal opinion could vary from person to person and even luminaries may differin their opinion on the same set of facts or law. In such circumstance, acompetent authority is expected to follow the opinion obtained from thepermissive sources through proper channels. As revealed from the files,instead of independently considering the opinion of Law Secretary, the ECblindly followed the same and arrived at the conclusion that the bid submittedby the appellant is non responsive in the presence of Law Secretary himself. 78. In the instant case, the 3rd EC meeting, discussed the legalopinion given by the legal advisers of the Project. In the said opinion, it is WA No.1460/0866specifically noted that the changes were made in accordance with the advice ofthe earlier suggestions / recommendations of EC and the same is in accordancewith law. The opinion given by the legal advisers of the Project was followedby the EC in the case of other bidders. In this circumstance, taking a decision toobtain legal opinion except according to the procedure and permittingthemselves to be influenced by such 'unsigned and unsealed, off the recordadvice / gist of points' is not permissible. Learned author H.W.R Wade inAdministrative Law, 8th Ed. Ch. 11, pp 315.6 has opined that “...One aspect ofthis principle is the rule that the participation of non members in thedeliberations or decisions of a collective body may invalidate its acts...". Inpage 318 it is opined that "...The valid exercise of a discretion requires agenuine application of the mind and a conscious choice by the correct authority... A public body which blindly rubber stamps its officers' recommendation willtherefore be acting unlawfully...". It is also necessary to note that 'there can beno objection to a public body obtaining advice and consulting suitable persons,but it is vital that it should genuinely keep the decision in its own hand' (p 318).Here a perusal of the minutes of the 4th meeting of EC, it could be revealed thatthe EC without deliberating on the opinion of Law Secretary blindly followed itin his presence and proceeded to conclude that the proposal submitted by theAppellant is non-responsive and rejected its bid. In this context, it isappropriate to note that "...there must always be a difference between seeking WA No.1460/0867advice and then genuinely exercising one's own discretion, on the other hand,acting obediently or automatically under someone else's advice or directions"(Wade supra p 327). The effect then is that the discretion conferred by theParliament (licensor, in this case) is exercised, at least in part, by wrongauthority, and the resulting decision is ultra vires and void”. (See also AnojAbraham v. STAT & Anr 2006 (4) KLT 691, Shreyaskumar Accha v. DirectorState Lotteries 2005 (1) KLT 841 and Chandran v. Union of India 2003 (2)KLT 567). Therefore the EC ought not to have taken a decision on theresponsiveness of the bid submitted by the appellant based on the 'unsignedand unsealed . off the record advice / gist of points' furnished by the LawSecretary and therefore, that the decision making process adopted by the EC inits 4th meeting cannot be approved being vitiated by irrelevant considerations(dictation by outsider) and is only liable to be judicially reviewed. 79. Consequence of the decision of the EC on appellant: Appellant is deprived of equal treatment / excluded from the zoneof consideration / denied a level playing field. In Reliance Energy Ltd v. MSRDC Ltd. (2007) 8 SCC 1, Hon'ble SupremeCourt while dealing with a similar case ruled:"36. We find merit in this civil appeal. Standards appliedby courts in judicial review must be justified by constitutionalprinciples which govern the proper exercise exercise of public WA No.1460/0868power in a democracy. Article 14 of the Constitution embodiesthe principle of 'non discrimiantion'. However it is not a freestanding provision. It has to be read in conjunction with rightsconferred by other articles like Article 21 of the Constitution.The said Article 21 refers to 'right to life'. It includes'opportunity'. In our view, as held in latest judgment of theConstitution Bench of nine Judges in I.R Coelho v. State of T.N(2007) 2 SCC 1, Articles 21 / 14 are the heart of the chapter onfundamental rights. They cover various aspects of life. 'Levelplaying field' is an important concept while construing Article 19(1)(g) of the Constitution. It is entitled to invoke the said doctrineof 'level playing field'. We may clarify that this doctrine is,however subject to public interest. In the world of globalisation,competition is an important factor to be kept in mind. Thedoctrine of 'level playing field' is an important doctrine which isembodied in Article 19(1)(g) of the Constitution. this is becausethe said doctrine provides space within which equally placedcompetitors are allowed to bid so as to subserve the largerpublic interest. 'Globalisation', in essence, is liberalisation oftrade. Today India has dismantled licence raj. The economicreforms introduced after 1992 have brought in the concept of'globalisation'. Decisions or acts which result in unequal anddiscriminatory treatment, would violate the doctrine of 'levelplaying field' embodied in Article 19(1)(g). Time has come,therefore, to say that Article 14 which refers to principle of'equality' should not be read as a stand alone item but it shouldbe read in conjunction with Article 21 which embodies severalaspects of life. There is one more aspect which needs to be WA No.1460/0869mentioned in the matter of implementation of the aforesaiddoctrine of 'level playing field'. According to Lord Goldsmith,commitment to the 'rule of law' is the heart of parliamentarydemocracy. One of the important elements of the 'rule of law' islegal certainty. Article 14 applies to government policies and ifthe policy or act of the Government, even in contractual matters,fails to satisfy the test of 'reasonableness', then such an act ordecision would be unconstitutional." M P Jain and S N Jain, Principles of Administrative Law, 4th Ed (2005 Reprint)page 855:"...Although the petitioner had no right to claim that histender be accepted, yet he did have a right to have his tender'fairly and properly' considered by the concerned authority ...equalopportunities must be given to citizens and they must not bediscriminated against in the matter of making their offer for suchcontracts and of having the same considered ... there cannot beany discrimination at the threshold or at the time of entry in thefield of consideration on merits..."80. Whether there is change of parties in the two consortiumagreements? It is necessary to note that as per the scheme of RFP, the biddersat the stage of submission of Proposal need to furnish the names of the leadmember and other members in the Consortium. At this stage, it is specificallymentioned by the appellant in Exhibit P5, that the second member of the WA No.1460/0870consortium is "Portia Management Services Ltd". While furnishing 'Details ofBidders' in P5, against the column Consortium Member it is again mentioned'Portia Management Services Ltd' and against the column 'Brief Description ofCompany' it is mentioned that - 'Portia Management Services Ltd is theinternational arm of Peel Ports Ltd'. Whereas in the Consortium Agreement(pages 151 to 155 of Paper Book) it is mentioned that M/s Portia ManagementServices is signing on behalf of M/s Peel Ports Ltd. Later, when the Sponsors/Advisers pointed out this anomaly, the appellant executed a fresh agreementwhereby arraying M/s Portia Management Ltd as a party within the stipulatedtime. Apart from pointing out this anomaly, the appellants were never asked toobtain any authorization from Peel Ports at any point of time. It could also beconcluded that right from beginning it is Portia Management Services Ltd is theconsortium member and not M/s Peel Ports. In fact in response to Exhibit P9letter issued by the advisers after 1st EC meeting wherein it is stated that "in thisregard you are requested to depute your authorized representative to our officein Bangalore within five days from the date of this communication to collectthe original power of attorney and consortium agreement for taking necessaryaction to meet the above requirements", the appellant issued Exhibit P10mentioning that they will be executing a 'fresh agreement'. Such freshagreement, could only be treated as a response to the anomaly pointed out bythe respondents 1 to 3. The subsequent agreement dated 11.03.2008, in effect is WA No.1460/0871only a clarification for the doubts expressed by the EC / Advisers. Afterobtaining it within the stipulated time, it cannot be said that the same isfurnished in violation of RFP. It is only curing a defect / anomaly and byobtaining such clarification no other bidder is prejudiced. It will certainly relateback to the original date of submission. Since it is obtained within the extendedtime, the respondents 1 and 2 also cannot be prejudiced. Moreover, the Adviserapproved the revised consortium agreement and even the legal advisers alsoendorsed the same. Hence it is not justifiable to exclude the appellant from thezone of consideration at the 2nd and 3rd stage of bid evaluation on the reasonthat a new party was added at a later stage. Therefore the procedures adoptedby the EC in this regard is bad. 81. 'Liability' v. 'Responsibility': In RFP Vol 1, Section IV, paragraph 3:5, it is provided that"All members of the consortium shall be jointly and severally liable for theexecution of the Project in accordance with the terms of the License Agreementand a statement to this effect shall be included in the Consortium / ShareHolder's Agreement." In cl. (c) of paragraph 4:1 it is provided that, "...theconsortium agreement shall be specific to this proposal and clearly allocateresponsibilities and duties between the members and the lead member,including the percentage of shareholding. Notwithstanding this, the ConsortiumMembers shall be jointly and severally liable to Licensor for implementation of WA No.1460/0872the Project." Similarly in paragraph 13:4, it is provided that "In case ofconsortium, members of the consortium agreement for the purpose ofsubmitting the proposal, the consortium agreement shall contain, inter alia,the following provisions: (a)... (b). Outline the proposed roles andresponsibilities of each consortium member at various stages. (c). joint andseveral liability of the Consortium Members for implementation of the Project.(d)... (e)... The consortium agreement entered into among the members ofthe consortium should be specific this project and should contain the aboverequirements, failing which the proposal shall be treated as non responsive.The bidder is free to submit the Consortium Agreement in its own format..."A conjoint analysis of the above provision will lead to the conclusion that allthat what the RFP contemplates is a commitment from the part of bidders(consortium members) to the effect that they will be jointly and severally liablefor the completion of the project, in the event being selected as successfulbidder and such a provision will be there in the License Agreement that will beentered between the licensor and licensee. The commitment for 'joint andseveral liability' can be expressed in "the Consortium Agreement in its ownformat." Moreover, it is necessary to note that the JV agreement submittedalong with the proposal at the time of bid evaluation stage will not make anydifference, as the license agreement is yet to be entered between the licensorand the licensee (successful bidder). At the most the said clause in the JV WA No.1460/0873agreement could be treated as a commitment or assurance on the part ofconsortium members to abide by a 'liability' clause, at the time of entering ofproject license agreement, if its bid is ultimately found successful.82. In the 1st EC meeting on 25.02.2008, it is not pointed out thatin the appellant's JV agreement is bad for non inclusion of "several and jointliability" clause. Whereas a similar anomaly was pointed out by the EC the caseof another bidder - M/s Appolo Consortium. When such a defect was pointedout to one of the bidders, it is not appropriate to refuse to point out such defectand later finding fault with the appellant on the same point. Had a clarificationin this regard was sought at the appropriate time, it is submitted by theappellant on record, that they would have made necessary changes in thisregard. Again, this is a curable defect of minor nature and cannot be treated asa reason to exclude the appellant from the zone of consideration. 83. Point No III. Is the judgment of the learned single judge sustainable?A reading of the judgment by the learned single judgewould reveal that instead of judging the decision making process adopted bythe EC, the learned Judge has delved into the merits of the decision and foundthe views adopted by the Law Secretary endorsed by EC need not beinterfered. This approach is not permissible while reviewing an administrativedecision of a body like EC. As already pointed, the decision of EC to invite the WA No.1460/0874Law Secretary and to oblige themselves to that decision is bad and notsustainable. therefore the decision of learned single judge also cannot besustained. 84. Point No..IV. Whether the administrative decision should be reasoned? The incidental issue that requires to be considered is whether ECwas obliged to give reasons while rejecting the bid submitted by the appellant.The learned Senior Counsel Sri.Rajiv Nayyar would submit that theadministrative decisions need not be reasoned. The reliance is placed onKumari Srilekha Vidyarthi's case (1991) 1 SCC 212, wherein it is observed thatthe expression, “at any time” merely means the termination may be made evenduring the subsistence of the term of appointment and “without assigning anycause” means without communicating any cause to the appointee whoseappointment is terminated. However, without assigning any cause is not to beequated with “without existence of any cause”. It merely means that thereason for which the termination is made need not be assigned orcommunicated to the appointee. It was held in Liberty Oil Mills vs. Union ofIndia that the expression “without assigning any reason” implies that thedecision has to be communicated, but reasons for the decision need not have tobe stated; but the reasons must exist, otherwise, the decision would bearbitrary. WA No.1460/087585. Our attention is invited to the decision of the Apex Court inNational Institute of Mental Health and Neuro Sciences vs. Kalyan Raman,1992 Supp (2) SCC 481. We failed to understand how that decision wouldhelp the respondent in the facts and circumstances of this case.86. In Union of India vs. E.G.Nambudiri, (1991) 3 SCC 38,the court has stated, that, “Ordinarily, courts and tribunals, adjudicating rightsof parties, are required to act judicially and to record reasons. Where anadministrative authority is required to act judicially, it is also under anobligation to record reasons. But every administrative authority is not underany legal obligation to record reasons for its decision, although, it is alwaysdesirable to record reasons to avoid any suspicion. Where a statute requires anauthority though acting administratively to record reasons, it is mandatory forthe authority to pass speaking orders and in the absence of reasons the orderwould be rendered illegal. But in the absence of any statutory or administrativerequirement to record reasons, the order of the administrative authority is notrendered illegal for absence of reasons. If any challenge is made to the validityof an order on the ground of it being arbitrary or mala fide, it is always open tothe authority concerned to place reasons before the court which may havepersuaded it to pass the orders. Such reasons must already exist on records as itis not permissible to the authority to support the order by reasons not containedin the records. Reasons are not necessary to be communicated to the WA No.1460/0876Government servant. If the statutory rules require communication of reasons,the same must be communicated, but in the absence of any such provisionabsence of communication of reasons do not affect the validity of the order”.87. In Sarat Kumar Dash and others vs. Biswajit Patnaik andOthers, 1995 Supp (1) SCC 434, the court has stated, that, “The reasons arelinks between the maker of the order or the author of the decision and theorder itself. The record is called to consider whether he has given dueconsideration to the facts placed before him before he arrives at the decision.Therefore, the reasons in the order or found from the record bridges the linkbetween the maker of the order and the order itself or decision. Therefore, thenatural justice is not a rigid nor an inflexible rule. It should be applied to agiven fact situation, depending upon the background of the statutoryprovisions, nature of the right which may be affected and the consequencesthat may entail. 88. The learned Advocate General would submit that even if anadministrative decision does not ex facie disclose the reasons, the decision canbe sustained by explaining the reasons with the help of records available onfile, though the same principle may not apply to statutory or quasi judicialdecisions. To buttress this argument, learned Advocate General relies on theobservations made in the case of Union of India vs. E.G.Nambudiri, (1991) 3SCC 38, Paras 8, 9 and 10; Income Tax Officer vs. Biju Patnaik, 1991 Supp WA No.1460/0877(1) SCC 161 Para 6); Shrilekha Vidyarthi vs. State of U.P., (1991) 1 SCC 212(Para 13); Sarat Kumar Dash vs. Biswajit Patnaik, 1995 Supp (1) SCC 434(Para 12); Choice Trading Corporation Pvt. Ltd. vs. GCDA 1992 (1) KLJ 398(Para 8) and M.Vasudevan vs. CEO, Chennai Metropolitan Devpt. Authority,AIR 2006 Mad. 45 (Para 4 and 5).89. The recent trend of the Apex Court appears to be different.It is appropos at this stage to refer to the decisions relied by the learned SeniorCounsel Sri.Damodaran, for the appellant. The fist in the series, is the case ofNagarjuna Constructions Company Ltd. vs. Govt. of Andhra Pradesh(Civil Appeal Nos.1438 of 2004 dated 20.10.2008 Para 31, 36 and 39)“31. The obligation to act fairly on the part of theadministrative authorities were evolved to ensure the rule of lawand to prevent failure of justice. This doctrine is complementaryto the principles of natural justice which the quasi judicialauthorities are bound to observe. It is true that the distinctionbetween a quasi judicial and the administrative action hasbecome thin, as pointed out by this court as far back as 1970 inA.K.Kraipak vs. Union of India. Even so the extent of judicialscrutiny/judicial review in the case of administrative actioncannot be larger than in the case of quasi judicial action. If theHigh Court cannot sit as an Appellate Authority over thedecisions and orders of quasi judicial authorities, it followsequally that it cannot do so in the case of administrativeauthorities. In the matter of administrative action, it is well WA No.1460/0878known, more than one choice is available to the administrativeauthorities; they have a certain amount of discretion availableto them. They have a “right to choose between more than onepossible course of action on which there is room for reasonablepeople to hold differing opinions as to which is to bepreferred”(as per Lord Diplock in Secy. of the State forEducation and Science v. Metropolitan Borough Council ofTameside, 1976 (3) All.E.R. 665 at pp.695f). The court cannotsubstitute its judgment for the judgment of administrativeauthorities in such cases. Only when the action of theadministrative authority is so unfair or unreasonable that noreasonable person would have taken that action, can the courtintervene. The Court has further observed:36. The principles of natural justice are those ruleswhich have been laid down by the Courts as being the minimumprotection of the rights of the individual against the arbitraryprocedure that may be adopted by a judicial, quasi judicial andadministrative authority while making an order affecting thoserights. These rules are intended to prevent such authority fromdoing injustice.39. Concept of natural justice has undergone a greatdeal of change in recent years. Rules of natural justice are notrules embodied always expressly in a statute or in rules framedthereunder. They may be implied from the nature of the duty tobe performed under a statute. What particular rule of naturaljustice should be implied and what its context should be in agiven case must depend to a great extent on the fact and WA No.1460/0879circumstances of that case, the framework of the statute underwhich the enquiry is held. The old distinction between a judicialact and an administrative act has withered away. Even anadministrative order which involves civil consequences must beconsistent with the rules of natural justice. Expression 'civilconsequences' emcompasses infraction of not merely property orpersonal rights but of civil liberties, material deprivations, andnon-pecuniary damages. In its wide umbrella comes everythingthat affects a citizen in his civil life.”.90. In Dev Dutt vs. Union of India, (2008) 8 SCC 725, the ApexCourt has observed:-“24. What is natural justice? The rules of natural justiceare not codified nor are they unvarying in all situations, ratherthey are flexible. They may, however, be summarised in oneword: fairness. In other words, what they require is fairness bythe authority concerned. Of course, what is fair would dependon the situation and context.25. Lord Esher M.R. in Voinet v, Barrett (1885) 55 LJQB39 (CA) observed: “Natural justice is the natural sense of what isright and wrong”.xxx xxx xxx28. Thus, in A.K.Kraipak vs. Union of India, (1969) 2SCC 262, a Constitution Bench of this Court held: (SCC p.272,para 20):“20. ....The concept of natural justice hasundergone a great deal of change in recent years. Inthe past it was thought that it included just two rules,namely: (1) no one shall be a judge of his own case WA No.1460/0880(nemo debet esse judex propria causa) and (2) nodecision shall be given against a party withoutaffording him a reasonable hearing (audi alterampartem). Very soon thereafter, a third rule wasenvisaged and that is that quasi judicial enquiriesmust be held in good faith, without bias and notarbitrarily or unreasonably. But in the course ofyears, many more subsidiary rules came to be addedto the rules of natural justice.”The aforesaid decision was followed by this court inK.I.Shepherd v. Union of India (1987) 4 SCC 431. It was held inthis decision that even administrative acts have to be inaccordance with natural justice if they have civil consequences.It was also held that natural justice has various facets and actingfairly is one of them.”.91. In Rajesh Kumar vs. Dy.C.I.T. and others, 2007 2 SCC 181,the Apex Court has stated:“20. Principles of natural justice are based on basic pillars:(i) Nobody shall be condemned unheard (audi alteram partem)(ii)Nobody shall be a judge of his own cause (Nemo debet essejudex in propria sua causa)21. Duty to assign reasons is, however, a judge-made law.there is dispute as to whether it comprises of a third pillar ofnatural justice. (See S.N.Mukherjee v. Union of India (1990) 4SCC 594 and Reliance Industries Ltd. v. DesignatedAuthority (2006) 10 SCC 368. WA No.1460/0881xxx xxx xxx23. We however, need not dilate on the said question beingnot very necessary for the purpose of this case. But it isbeyond any cavil that ordinarily unless excluded by operationof a statute, the superior courts while exercising power ofjudicial review shall proceed on the basis that assignment ofreasons is imperative in character. When an authority, be itadministrative or quasi judicial adjudicates on a dispute and ifits order is appealable or subject to judicial review, it wouldbe necessary to spell out the reasons therefor. While applyingthe principles of natural justice, however, the court must alsobear in mind the theory of useless formality and the prejudicedoctrine.xxx xxx xxx48. In any event, when civil consequences ensue, there ishardly any distinction between an administrative order and aquasi judicial order. There might have been difference ofopinions at one point of time, but it is now well settled that athin demarcated line between an administrative order andquasi judicial order now stands obliterated (See A.K.Kraipakv. Union of India (supra) and Chandra Bhavan Boarding andLodging v. State of Mysore (1969) 3 SCC 84, and S.L.Kapoorv. Jagmohan (1980) 4 SCC 379.”.92. In State of West Bengal vs. Alpana Roy, (2005) 8 SCC 296,the Supreme Court has observed:“8. Even in respect of administrative orders LordDenning, M.R. in Breen v. Amalgamated Engg. Union (1971) WA No.1460/08821 All.E.R. 1148 (p.1154) observed: “The giving of reasons isone of the fundamentals of good administration.” InAlexander Machinery (Dudley) Ltd. v. Crabtree, 1974 ICR 120(NIRC), it was observed: “Failure to give reasons amounts todenial of justice. Reasons are live links between the mind ofthe decision taker to the controversy in question and thedecision or conclusion arrived at”. Reasons substitutesubjectivity by objectivity. The emphasis on recording reasonsis that if the decision reveals the “inscrutable face of thesphinx”, it can, by its silence, render it virtually impossible forthe courts to perform their appellate function or exercise thepower of judicial review in adjudicating the validity of thedecision. Right to reason is an indispensable part of a soundjudicial system, reasons at least sufficient to indicate anapplication of mind to the matter before court. Anotherrationale is that the affected party can know why the decisionhas gone against him. One of the statutory requirements ofnatural justice is spelling out reasons for the order made, inother words, a speaking out. The “inscrutable face of thesphinx” is ordinarily incongruous with a judicial orquasi-judicial performance.”.93. In the present case, after obtaining the “opinion” of the LawSecretary on the tender document submitted by the Appellant, the EC met on6.5.2008. After deliberation, the EC entirely relying on the “opinion” of theLaw Secretary without giving any reasons whatsoever has rejected the tender WA No.1460/0883document, stating that the tender document is non-responsive/non-admissiblein terms of the RFP provisions. The only reason assigned by the EC is asunder:“The Committee perused the above opinion, submission ofthe Bidder vis-a-vis the relevant stipulations of the RFPdocuments and discussed at length these with the LawSecretary to ascertain the admissibility/responsiveness ofthe bid. The Committee, including the Special Invitee,unanimously concluded that the bid submitted by theConsortium led by Zoom Developers, isnon-responsive/non-admissible, in terms of the RFPprovisions.”.94. Can this be called a reasoned order, was our question to thelearned counsel appearing for the parties. The learned Advocate Generalwould tell us, firstly, since the orders passed by EC is in the nature ofadministrative order, the EC need not have to assign any reasons whatsoever inview of Clause 27 of RFP. Alternatively, the learned Advocate General wouldcontend, that the reading of the entire report of the EC discloses the reasons fortreating the tender document submitted by the appellant as non-responsive andeven otherwise also, if the administrative decision does not disclose the WA No.1460/0884reasons, the same can be sustained by explaining the reasons with the help ofavailable records. The learned Senior Counsel, Sri.Rajiv Nayyar, whoappeared for the contesting respondent in his own indomitable style would tellus that, it is difficult to answer an inconvenient question, but at the same time,in view of certain observations made by the Apex Court, there is no necessityfor a body which is only discharging administrative function, to assign detailedreasons while rejecting the bid submitted by a tenderer. The learned SeniorCounsel would submit that, the Law Secretary was very much present in themeeting held on 6.5.2008 and after due deliberation and discussion with theLaw Secretary, the EC has opined that the bid submitted by the appellant isnon-responsive and therefore, it is an affirmation of the “opinion” of the LawSecretary and therefore, no other reasons be assigned by the EC while rejectingthe bid submitted by the appellant. 95. In our view, the answer to this issue would have been littlemore difficult, if not for the views expressed by the Apex Court in the recentdecision rendered. In Nagarjuna Construction Company Ltd. case, the ApexCourt has observed that the old distinction between a judicial act andadministrative act has withered away. Even the administrative order whichinvolve civil consequences must be consistent with the rules of natural justice.Expression “civil consequences” encompasses infraction of not merelyproperty or personal rights but of civil liberties, material deprivations and WA No.1460/0885non-pecuniary damages. In its wide umbrella comes everything that affects acitizen in his civil life. In Alpana Roy's case, the Apex Court has observedthat giving of reasons is one of the fundamentals of good administration. Inour view, these views of the Apex Court is binding on us under Article 141 ofthe Constitution of India and therefore, it is well-nigh impossible to accept thepreliminary submission made by the learned Advocate General. Secondly, wehave carefully perused the entire records produced by the learned AdvocateGeneral to find whether the records would disclose any reason for the EC toreject the tender document submitted by the Appellant unceremoniously. Weonly find from the records the various stages where the appellant was asked toimprove, correct and clarify the tender documents submitted by it. Theserecords would only disclose, if we say so, bluntly, the bureaucratic approachwhile deciding an important issue of this nature. The learned AdvocateGeneral would tell us that in view of the Clause 27 of the RFP, no reason needbe assigned and communicated to the bidder of the grounds of rejection of itsbid document. Firstly, this type of clauses in the RFP could have beenaccepted, under a rule in a State which is governed by Monarchy and not in acountry which believes in a democracy and democratic principles. Assumingfor the sake of argument that the administrative authority while deciding issuesof this nature need not communicate the reasons for rejection of the bid of anparticipant, the records maintained by the administrative authority should WA No.1460/0886disclose to a forum, the reasons which weighed in its mind, when its action isquestioned before a Superior Forum. If the reasons are not forthcoming aftercareful scrutiny of the records, the superior forum would definitely have totell the administrative authority, that you can't be above the law and you can'tact the way you desire. In view of this discussion, our conclusion is, thedecision of the EC is a non-reasoned order and the same cannot be sustained.96 We are not considering the issue, that the decision to treatthe appellant's bid as non-responsive is vitiated by mala fides, since there is nospecific averment is made either in the writ petition or in the writ appeal bythe appellant.97. We are also not deciding the issue, whether this court canissue futile writs, since we have no intention to remit the matter to EC forreconsideration of the issue once over again, in view of what has beenobserved by us in the course of our order.98. In the result, we pass the following: O R D E R1. The decision of EC in its 4th meeting held on 06.05.2008, whereby thebid submitted by the appellant is declared as 'non-responsive' is setaside and further we declare that the outer cover and cover 1submitted by the appellant is responsive. WA No.1460/08872. We declare that the Technical and Financial proposals submitted by theappellant are liable to be considered within fifteen days from today. 3. The order passed by the Sponsor/Licensor in GO (Ms) No 28/08/F&PDdated 24.05.2008 is kept in abeyance and further we direct them tocancel the same, if the technical and financial proposal submitted bythe appellant is found better than that of 4th respondent. 4. There will be no order as to costs.5. All pending interlocutory applications shall stand closed. Ordered accordingly. Sd/-H.L.DATTU, CHIEF JUSTICE. Sd/-A.K. BASHEER, JUDGE. DK. (True copy)