ORDER: This writ petition is filed seeking a declaration that the action of the respondents 1 and 2 – Transmission Corporation of A.P. Limited in opening the price bids of the respondents 3 to 5 herein pursuant to the Tender Notice No.APT/76/2007 is arbitrary and illegal and consequently to direct the respondents 1 and 2 to evaluate the tenders strictly in accordance with the eligibility conditions prescribed under the Tender Notification. The facts, in brief are as under: The Transmission Corporation of A.P. Limited (hereinafter referred to as ‘AP TRANSCO’) issued Tender Notice No.APT/76/2007 inviting tenders for supply, erection, testing and commissioning of 220 KV/132 KV Gas Insulated Sub-Stations at Erragadda (Lot-1) and Chilakalaguda (Lot-2) along with supply, laying, testing and commissioning of 220 KV XLPE Underground Cables with associated accessories. As per the said tender notice the bids are to be submitted in two parts namely Techno Commercial Bid and Price Bid. The bidding by consortium with maximum three members was also allowed. The petitioner, which is a public limited company registered under the laws of Peoples of Republic of China, joined as a Joint Venture Partner with M/s. Vijai Electricals Ltd., and Xian Shiky High Voltage Electric Company Ltd., Xian, China and participated in the bidding process for both Lot-1 and Lot-2. Five other bidders, including the respondents 3 to 5 herein, also submitted their bids. The Technical Bids were opened by the AP TRANSCO on 25.03.2008 and by letter dated 27.05.2008 the petitioner was informed that its Technical Bid was qualified for both Lots pending verification of documentary proofs submitted by it. The petitioner was also requested to attend the price bid opening on 30.05.2008. On 30.05.2008 the price bids of four bidders i.e., the petitioner and the respondents 3 to 5 herein were opened in which the price quoted by the 3rd respondent herein was found to be lowest in respect of both Lot-1 and Lot-2. The prices quoted by the respondents 4 and 5 herein were the second and third lowest respectively, whereas the petitioner’s price was the fourth lowest. On 04.06.2008 M/s. Vijai Electricals Limited which is a joint venture partner of the writ petitioner addressed a letter to the AP TRANSCO alleging that the three other bidders i.e., the respondents 3 to 5 herein did not meet the prescribed technical specifications and therefore their price bids ought not to have been opened. On 04.06.2008 M/s. Vijai Electricals Limited which is a joint venture partner of the writ petitioner addressed a letter to the AP TRANSCO alleging that the three other bidders i.e., the respondents 3 to 5 herein did not meet the prescribed technical specifications and therefore their price bids ought not to have been opened. However, the AP TRANSCO failed to consider the said objection and was proceeding further to finalize the tenders. Hence, the present writ petition contending that the bids of the respondents 3 to 5 should have been treated as non-responsive and their price bids ought not to have been opened and evaluated since they did not meet the essential qualification criteria specified in Section 6 of the Volume 1 of Bidding document. It is also contended by the petitioner that the conditions of Section 6 of Volume 1 relating to qualification requirements, which are prescribed in accordance with the purchase manual of AP TRANSCO being the essential conditions the respondents 1 and 2 are not empowered to relax the same in favour of the respondents 3 to 5. In the counter-affidavit filed on behalf of the respondents 1 and 2, the allegation that the price bids of the respondents 3 to 5 were opened by the AP TRANSCO even though they failed to meet the essential qualification criteria prescribed under Section 6 of Volume 1 has been denied. With regard to the alleged relaxation of conditions in favour of the respondents 3 to 5 it is contended that except the deviation in case of cable accessories manufacture, the technical evaluation of all the bids was in conformity with the requirements of the tender specification and IEC. It is explained that the deviation in case of cable accessories manufacture was allowed in view of the fact that the cost of accessories was a minor portion of the total cost of cable system (about 20% of the total cable system and about 12% of the total lot cost) and moreover the respondents 3 to 5 had submitted type test reports and satisfactory performance of the total cable system along with the accessories they were offering. A warranty for 60 months from the date of commissioning during which period the bidder is totally responsible for cable system has also been given. A warranty for 60 months from the date of commissioning during which period the bidder is totally responsible for cable system has also been given. It is further explained that as there are few manufacturers who make both XLPE Cables and Accessories, the Technical Committee thought it fit to consider the bids of the bidders whose cable manufacturers are not manufacturers of cable accessories. All other requirements of the tender specifications were duly followed ensuring that the project is executed at a reasonable cost. It is also claimed that the deviation had increased the competition in the bid and the same is beneficial to the AP TRANSCO as competitive rates were obtained. It is further contended that similar relaxation from the qualifying requirements was given to the petitioner’s consortium by accepting the type test reports submitted by M/s. Vijai Electricals Limited from Wuhan High Voltage Research Institute (National Centre for High Voltage Measurement and Quality Inspection and Testing Centre of Electric Equipment, Ministry of Electric Power, China) though it was not one of the International Test Laboratories mentioned in the technical specification. As a matter of fact, the said violation attracted disqualification of the petitioner’s bid. However, in order to ensure better competition the Technical Committee considered the petitioner’s bid subject to the condition that they will give an undertaking to conduct type tests in the specified labs as per the tender conditions at their cost without affecting the delivery schedule if they are successful bidders. By their letter dated 2.5.2008 M/s. Vijai Electricals Limited agreed for the same. Thus it is contended by the respondents 1 and 2 that the procedure followed by them in opening the price bids of the respondents 3 to 5 did not suffer from any infirmity. A separate counter-affidavit has been filed by the respondent No.3, which was declared as the successful bidder, contending that its technical bids were processed by the AP TRANSCO as per the established practices and procedures and that the allegations made by the petitioner were not correct. It is also contended that though the technical bids were opened on 25.03.2008, the petitioner failed to raise any objection and kept quiet till the price bids were opened and therefore the present writ petition filed at a belated stage was not bona fide. It is also contended that though the technical bids were opened on 25.03.2008, the petitioner failed to raise any objection and kept quiet till the price bids were opened and therefore the present writ petition filed at a belated stage was not bona fide. So far as merits it is pleaded that the difference in the total price offered by the petitioner and the 3rd respondent was more than Rs.80 crores and more over the 3rd respondent and its consortium partners had successfully executed similar projects at different places and therefore the AP TRANSCO had rightly declared it as the successful bidder. It is also claimed that the 3rd respondent’s Consortium is both a manufacturer of EHV cables and accessories and thus satisfied Condition No.1 of Section 6. The allegation that the essential tender conditions were relaxed in favour of the respondents 3 to 5 has been denied and it is contended that as per the amended clause the pre-qualification test is not necessary and the Accelerated Ageing System Test has to be demonstrated before commencing the delivery of cables without affecting the over all schedule of the project. The respondent No.5 also filed a counter-affidavit contending that the petitioner cannot be allowed to raise an objection on the ground of alleged deviations at a belated stage and on that ground alone the writ petition is liable to be dismissed in limini. It is also pleaded that the 5th respondent had complied with all the qualification requirements, performance parameters and other criteria as per the tender specifications including the submission of Pre-qualification Test Reports as per IEC-62067-2001. Despite notice, respondent No.4 did not choose to appear. I have heard the learned counsel for both the parties and perused the material on record. As could be seen, the main contention urged on behalf of the petitioner is that the bids of the respondents 3 to 5 being non-responsive to the terms and conditions of the Bidding Document their technical bids are liable to be rejected and the AP TRANSCO ought not to have opened their price bids. As could be seen, the main contention urged on behalf of the petitioner is that the bids of the respondents 3 to 5 being non-responsive to the terms and conditions of the Bidding Document their technical bids are liable to be rejected and the AP TRANSCO ought not to have opened their price bids. According to the petitioner, the respondents 3 to 5 failed to meet the essential qualification requirements firstly for the reason that the members of the respondents 3 to 5 Consortiums are manufacturers of either cables or accessories but not manufacturers of both EHV cables and accessories as required under Clause 2.0 of Section 6 of Volume 1. Secondly, the respondents 3 to 5 failed to furnish the Type Test Reports (Pre-qualification Test Reports) on Complete Cable System as required under Clause 6.2.1 (C) of Volume-2C. So far as the first allegation is concerned, Clause 2.0 of Section 6 of Volume 1 of the Bidding Document which runs as under is necessary to be noticed: Clause 2.0 The bidding is also open to consortium (Maximum three Members) of which one shall be a XLPE cable and accessories manufacturer and one member shall be GIS manufacturer and the other can be a EPC contractor who shall meet the abovementioned qualifying requirements individually or together subject to the following conditions. … …. … …. … … … … … …. … … … … It is alleged by the petitioner that none of the members of the respondents 3 to 5, who submitted their bids as joint venture partners, is the manufacturer of both cables and accessories as mandated under Clause 2.0. The said allegation could not be controverted by the respondents 3 and 5 in their counter-affidavits. However it is contended on their behalf that the interpretation sought to be given by the petitioner that one of the members of the Consortium shall be the manufacturer of both cables and accessories is incorrect. According to the respondents 3 and 5, even if the members are the manufacturers of either cables or accessories it is sufficient compliance with Clause 2.0. A plain reading of Clause 2.0 of Section 6 itself makes clear that while allowing bidding by consortium with maximum three members, it is made mandatory that out of three members one shall be a manufacturer of both XLPE Cables and Accessories. A plain reading of Clause 2.0 of Section 6 itself makes clear that while allowing bidding by consortium with maximum three members, it is made mandatory that out of three members one shall be a manufacturer of both XLPE Cables and Accessories. It is also relevant to note that Clause-1 of Section 6 of Volume-1 provides that the bidder should be a manufacturer of EHV cables and accessories. It goes without saying that the same condition applies even where the bid is made by a Consortium and therefore it is expressly provided in Clause 2.0 that one of the partners of the Consortium shall be the manufacturer of cables and accessories. Hence, the contention of the respondents 3 to 5 cannot be accepted. Even in the counter-affidavit filed on behalf of the AP TRANSCO, the requirement of Clause 2.0 as contended by the petitioner has not been disputed. As a matter of fact, the Chief Engineer (Constructions) in paragraph-8 of the counter-affidavit filed on behalf of the AP TRANSCO conceded that there was a deviation so far as the compliance with the requirement that one of the members shall be a cable and accessories manufacturer. The relevant portion from the counter-affidavit wherein the deviation was admitted and an attempt was made to justify the said deviation may be extracted hereunder: “I submit that the technical evaluation is inline with requirements of the subject tender specification and IEC except for deviation in case of cable accessories manufacture. The relevant portion from the counter-affidavit wherein the deviation was admitted and an attempt was made to justify the said deviation may be extracted hereunder: “I submit that the technical evaluation is inline with requirements of the subject tender specification and IEC except for deviation in case of cable accessories manufacture. However the same is considered as: (1) The cost of accessories is a minor portion of the total cost of cable system (about 20% of the total cable system and about 12% of the total lot cost) (2) The three bidders have submitted type test reports and satisfactory performance of the cable system of the total cable system along with the accessories they were offering and also the long term performance reports, (3) The Total cable system is warranted for 60 months from the date of commissioning during which period the bidder is totally responsible for cable system, and (4) It increases the competition in the bid, which is beneficial to APTRANSCO as competitive rates are obtained.” Thus it is clear that whenever the bidding is made by a Consortium, it is obligatory that one of its members shall be the manufacturer of both cables and accessories and that the respondents 3 to 5 Consortiums failed to satisfy the said requirement. The other allegation made by the petitioner is that the respondents 3 to 5 failed to furnish the pre-qualification test reports on Complete Cable System as required under Clause 6.2.1 (C) of Technical Specifications in Volume-2C. The respondents 1 and 2 while denying the petitioner’s allegation contended that as per the amended Tender Specifications the requirement of furnishing pre-qualification test reports is deleted and as such it is sufficient if type test reports are furnished. Similar stand has been taken by the respondents 3 and 5 and it is claimed that they had complied with all the qualification requirements including submission of pre-qualification test reports as per IEC-62067. Clause 6.2 of Volume-2C as it stood prior to amendment as well as after amendment may be extracted hereunder: Prior to amendment After Amendment 6.2 : Type Tests Reports : The bidder shall furnish two sets of type test reports and pre-qualification test reports for 220 KV or Higher Voltage XLPE cables and accessories. The Type tests must have been conducted on the cables and accessories as per IEC-62067 from the reputed international test laboratories not earlier than 2001. The Type tests must have been conducted on the cables and accessories as per IEC-62067 from the reputed international test laboratories not earlier than 2001. The offers received without type tests reports or pre-qualification test reports shall be treated as non-responsive. 6.2.1:(A) Type Tests on Cables : … … … … … … … … …. … … … … … … … … …. … … … … … … … … …. (B) Type Tests on Accessories: … … … … … … … … …. … … … … … … … … …. … … … … … … … … …. (C)Type Tests on Cable System: (a) Examination of the cable system with cable and accessories (b) Pre-qualification tests on complete cable system as per IEC 62067. 6.2 The Bidder shall furnish two sets of type test reports for 220 KV or higher voltage XLPE cables and accessories. The type tests must have been conducted on the cables and accessories as per IEC 62067 from the reputed international test laboratories as mentioned in the technical specification not earlier than 2002. The offers received without type test reports shall be treated as non-responsive. However, if a bidder submits the test reports of period earlier than 2002 the bid will be considered for evaluation subject to condition that bidder will conduct and submit the type test reports as per latest IEC standards at his cost before commencing the deliveries without affecting the delivery schedules as specified, if he is a successful bidder. - Not Amended – - Not Amended – - Not Amended - It is true that as per the amendments made to the Tender Specifications in the Pre-Bid Meeting held on 31.10.2007 the words “and pre-qualification test reports” were deleted in Clause.6.2 of Volume-2C of the Bidding Document. Thus the bidders are required to furnish only the type test reports for XLPE cables and accessories of period not earlier than 2002. In case the test reports of period earlier than 2002 are furnished, the bidder has to conduct and submit the type test reports as per latest IEC Standards before commencing the deliveries without affecting the specified delivery schedules. However, it is to be noted that Clause 6.2.1 (C) which provides for type tests on cable system remained unamended and sub-clause (b) of Clause 6.2.1. However, it is to be noted that Clause 6.2.1 (C) which provides for type tests on cable system remained unamended and sub-clause (b) of Clause 6.2.1. (C) mandates pre-qualification tests on complete cable system as per IEC-62067. Thus, even after the amendment dated 31.10.2007 so far as complete cable system is concerned, furnishing of pre-qualification tests reports are mandatory unlike XLPE cables and accessories. The fact that the respondent Nos.3 & 5 failed to furnish such pre-qualification tests reports along with their bids could not be disputed by the AP TRANSCO in their counter-affidavit, however it is explained as under in paragraph-9 : “In reply to the averments made in para-8 of the affidavit, I submit that the PQ test is not prescribed as mandatory in the tender specification and not mandatory as per the note mentioned under Clause 13.2 of IEC-62067 which states “The prequalification test may be omitted if an alternative long term test has been carried out and satisfactory service experience can be demonstrated”. As no alternative long term test has been prescribed by IEC the certificate of satisfactory operational performance of the 40% of the total tendered cable system for at least 2 years is considered as long term test and hence the pre-qualification test is not insisted in the present specification. I submit that M/s. Indu Consortium and M/s. EMCO Consortium have submitted P.Q. test reports as per IEC_62067 –2001 and M/s. BGR Energy Systems has informed that their cable is under testing and the reports will be submitted before Dec-08.” As could be seen, the pre-qualification tests are mandatory even according to the respondents, however the same can be omitted if an alternative long term test has been carried out and satisfactory service experience is demonstrated. Admittedly no such alternative long term test was carried out in lieu of pre-qualification test prescribed under Clause 6.2.1 (C) (b). In the counter-affidavit filed on behalf of the respondents 1 & 2, it is stated that the respondents 3 and 5 had only submitted the certificate of satisfactory operational performance of the 40% of the total tendered cable system for two years and the same is sufficient. The learned counsel for the petitioner vehemently contended that satisfactory service of cable system for two years cannot satisfy the requirement of the accelerated ageing test i.e., the pre-qualification test on complete cable system as per IEC-62067. The learned counsel for the petitioner vehemently contended that satisfactory service of cable system for two years cannot satisfy the requirement of the accelerated ageing test i.e., the pre-qualification test on complete cable system as per IEC-62067. Though this Court lacks technical expertise to express any opinion as to the correctness of the rival contentions, the fact remains that even as per the note appended to Clause 13.2 of IEC-62067 the pre-qualification test as required under Clause 6.2.1 (C) (b) can be omitted only where an alternative long term test has been carried out apart from demonstrating satisfactory service experience. Admittedly no such alternative long term test has been carried out in the present case. So far as demonstration of satisfactory service experience is concerned, even according to the AP TRANSCO the 3rd respondent’s cable was under testing and the reports were to be submitted before December, 2008 which shows that the said test reports were not submitted along with the 3rd respondent’s bid. Hence, the second allegation made by the petitioner is also well founded. In the circumstances, the question that arises for consideration is whether the action of the AP TRANSCO in opening the price bids of the respondents 3 to 5 even though they did not satisfy the eligibility criteria is sustainable in law. Whereas the learned counsel for the petitioner vehemently contended that the non-compliance with the qualification requirements under Clause 2.0 of Section 6 of Volume 1 and Clause 6.2.1 (C) (b) of Volume 2C had rendered the bids of the respondents 3 to 5 non-responsive and consequently their price bids cannot be opened, the learned counsel for the respondents contended that the failure of the respondents 3 to 5 to satisfy the said conditions did not render their bids non-responsive and that it is always open to AP TRANSCO to waive such conditions since they are not essential conditions. In support of the said contention, the respondents relied upon Clause 24.6 of Section 2 of Volume 1 of the Bidding Document under which the purchaser (AP TRANSCO) reserved the right to waive any minor informality or irregularity in a Bid which does not constitute a material deviation. In support of the said contention, the respondents relied upon Clause 24.6 of Section 2 of Volume 1 of the Bidding Document under which the purchaser (AP TRANSCO) reserved the right to waive any minor informality or irregularity in a Bid which does not constitute a material deviation. It is contended on behalf of the respondents that Clause 2.0 of Section 6 of Volume 1 and Clause 6.2.1 (C) (b) of Volume 2C are not essential conditions of eligibility and therefore the relaxation of the same does not constitute a material deviation. Thus, it is contended that the relaxation granted in favour of the respondents 3 to 5 did not suffer from any infirmity and the AP TRANSCO had rightly opened the price bids of the respondents 3 to 5. For proper appreciation of the above contentions, it is necessary to refer to relevant Clauses as under : Clause 13. Documents establishing Bidder’s Eligibility and Qualifications 13. 1 Pursuant to Clause 9 above, the Bidder shall furnish, as part of its Bid, documents establishing the Bidder’s qualifications to perform the contract. 13. 2 The documentary evidence of the Bidder’s qualification to perform the contract shall establish to the purchaser’s satisfaction: (a) that the Bidder has the financial, technical and production capability necessary to perform the Contract meeting the criteria outlined in the qualification requirements at Section 6 and Bidders should furnish information on their past performance as per proforma in Section 7 (Form 8); and (b) that, in the case of a Bidder not doing business within the Purchaser’s country, the Bidder is or will be (if successful) represented by an agent in that country equipped and able to carry out the Supplier’s maintenance, repair and spare parts stocking obligations prescribed by the Conditions of the Contract and/or Technical Specifications. (c) Consortium/Joint venture agreement. 13.3 Each Bidder shall submit only one Bid either by himself, or as a partner with other firms. A Bidder who submit or participates in more than one Bid (other than alternatives) shall be disqualified. Clause 14. Documents establishing Good’s Eligibility and conformity to Bidding Documents 14.1 Pursuant to Clause 9, the Bidder shall furnish, as part of its Bid, documents establishing the eligibility and conformity to the Bidding Documents of all Goods and Services, which the Bidder proposes to supply under the Contract. 14.2 … .. .. .. . .. … 14.3 … .. .. Documents establishing Good’s Eligibility and conformity to Bidding Documents 14.1 Pursuant to Clause 9, the Bidder shall furnish, as part of its Bid, documents establishing the eligibility and conformity to the Bidding Documents of all Goods and Services, which the Bidder proposes to supply under the Contract. 14.2 … .. .. .. . .. … 14.3 … .. .. … … …. … 14.4 … … …. …. … …. … Clause 15. Bid Security 15.1 Pursuant to Clause 9, the Bidder shall furnish, as part of its Bid, Bid Security in the amount not less than amount indicated against each lot in Indian Rupees or equivalent US dollars, as per the format as provided in Section 7 (Form-2). … … .. .. .. . .. … … … .. .. … … …. … Clause 24. Preliminary Examination 24.1 The Purchaser will examine first the Envelope 1 to assess essentially whether Bid Security and Bidder’s Qualification & Technical requirement are satisfactory to Clauses 13, 14 and 15 hereof respectively. Bid not satisfying this criteria will not proceed to opening and evaluation of the Envelope 2. 24.2 … … … … .. … 24.3 … … … … … … 24.4 Prior to the detailed evaluation, pursuant to Clause 26, the Purchaser will determine the substantial responsiveness of each Bid to the Bidding Documents. For purpose of these Clauses, a substantially responsive Bid is one of which conforms to all the terms and conditions of the Bidding Documents without material deviations. The Purchaser’s determination of a Bid’s responsiveness is to be based on the contents of the Bid itself without recourse to extrinsic evidence. 24.5 Bid determined as not substantially responsive will be rejected by the Purchaser and may not subsequently be made responsive by the Bidder by correction of the non-conformity. 24.6 The Purchaser may waive any minor informality or non-conformity of irregularity in a Bid, which does not constitute a material deviation, provided such waiver, does not prejudice or affect the relative ranking of any Bidder. Deviations from or objections or reservation to critical provisions, such as those concerning of Bid Security (ITB clause 15), Applicable law (GCC clause30) and Taxes and Duties (GCC clause 32) will be deemed to be a material deviation. Deviations from or objections or reservation to critical provisions, such as those concerning of Bid Security (ITB clause 15), Applicable law (GCC clause30) and Taxes and Duties (GCC clause 32) will be deemed to be a material deviation. While placing much reliance upon Clause 24.1 and the definition of material deviation in Clause 24.6 of Section 2, it is contended on behalf of the respondents that Clauses 13, 14 & 15 of Section 2 and Clauses 30 & 32 of GCC alone are essential conditions the non-compliance of which shall result in rejection of the technical bids. There can be no dispute that the tender conditions in the Notification Inviting Tenders can be classified into two categories i.e., the conditions which lay down the essential conditions of eligibility requiring strict compliance and the conditions which are merely ancillary or subsidiary with the main object to be achieved by the condition. It is true that the non-compliance of the second category of conditions does not disqualify a tenderer. As explained by the Apex Court in M/s. G.J. FERNANDEZ v. STATE OF KARNATAKA [1] and PODDAR STEEL CORPORATION v. GANESH ENGINEERING WORKS [2]’S case, the pre-conditions of eligibility which are essential conditions cannot be deviated from and are required to be enforced rigidly, whereas it is open to the authority issuing the tender to deviate from and not to insist upon the strict literal compliance of the other conditions in appropriate cases. The law is also well-settled that the Tender Inviting Authority can fix its own terms of the Invitation to Tender and it is free to grant any relaxation for bona fide reasons if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its Corporations, Instrumentalities and Agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily {vide AIR India Limited vs. Cochin International Airport Limited [ (2000) 2 SCC 617 } }. In the case on hand, Clause 24.6 of Section 2 of Volume 1 of the Bidding Document permitted relaxation of tender conditions. In the case on hand, Clause 24.6 of Section 2 of Volume 1 of the Bidding Document permitted relaxation of tender conditions. However, it is made clear that only minor irregularities in a bid which do not constitute a material deviation and particularly where such waiver does not prejudice or affect the relative ranking of any bidder can be relaxed or waived. Though some of the material deviations are specified in Clause 24.6, the same are not exhaustive as could be seen from the language of Clause 24.6 itself. Hence, there is no reason to hold that the conditions referred to in Clause 24.6, the deviation of which is not permissible, alone are essential conditions. Similarly the contention of the respondents that Clauses 13, 14 & 15 of Section 2 are the only essential conditions which are required to be enforced rigidly is also without any substance. Then the next question that requires consideration is what are the essential conditions of eligibility in the case on hand. The Bidding Document which is the subject-matter of the present writ petition consists of Volume 1 to Volume 2C prescribing contract terms, goods and services required and bidding procedures among others. Volume 1 of the Bidding Document deals with commercial and general aspects. As per Clause 5 of Section 1 (Invitation for Bids) of Volume 1, bids are to be submitted in two parts viz: PART-A: Techno-Commercial Bid containing complete technical and all commercial aspects except price, and PART-B: Price Bid containing price element only. Clause 22.1 of Section 2 (Instructions to Bidders ) of Volume 1 provides that the purchaser will open the Envelope 1 (qualifications & technical bid) first. Clause 24.1 of Section 2 further provides that the purchaser will examine first Envelope 1 to assess essentially whether bid security and bidders’ qualification & technical requirement are satisfactory to Clauses-13, 14 & 15 respectively and that the Bids not satisfying this criteria will not be considered and the Envelope-2 of such bidders will not be opened and evaluated. Clause 13.2 (a) of Section 2 stipulates that the bidder shall furnish along with his bid all the documents establishing that the bidder has the financial, technical and production capability necessary to perform the contract meeting the criteria outlined in the qualification requirements at Section 6 of Volume 1. Clause 13.2 (a) of Section 2 stipulates that the bidder shall furnish along with his bid all the documents establishing that the bidder has the financial, technical and production capability necessary to perform the contract meeting the criteria outlined in the qualification requirements at Section 6 of Volume 1. The qualification requirements which are required to be satisfied by every bidder are specified in Section 6 of Volume 1. The said requirements, as they stand after the amendment in the pre-bid meeting held on 31.10.2007, are as under : Qualification Requirements 1. The bidder should be a manufacturer of EHV cables and accessories and GIS Switchgear equipment systems, who must have designed, manufactured, tested, supplied, laid and commissioned successfully 220 KV or higher voltage cable and accessories and 220 KV or higher voltage GIS systems and shall meet the following criteria. For XLPE cable (a) The bidder should be a manufacturer of EHV cables and accessories, who must have designed, manufactured, tested, supplied, laid and commissioned successfully at least 80% of the total tendered quantity of 220 KV or higher voltage cable and accessories indicated in the “Schedule of Requirement” in one continuous period of 12 months of the last five years. At least 40% of similar material offered against this Specification should be in successful operation since 2 years as on the date of opening of the Bid. (b) The bidder shall furnish Type Test reports for 220 KV or Higher Voltage XLPE Cables and Accessories. The type tests must have been conducted on the cables & accessories as per IEC 62067, from the reputed International Test Laboratories as mentioned in technical specification not earlier than 2002. The offers, which shall not confirm the above, shall be treated as Non-Responsive. (emphasis supplied). However if a bidder submits the test reports of period earlier than 2002 the bid will be considered for evaluation subject to condition that bidder shall submit an undertaking that bidder will conduct and submit the type test reports as per latest IEC standards at his cost before commencing the deliveries without affecting the delivery schedule as specified. If he is a successful bidder. … … … .. …. … … …. … … … … … …. … …. If he is a successful bidder. … … … .. …. … … …. … … … … … …. … …. On a reading of the qualification requirements at Section 6 of Volume 1 together with Clause 13.2 of Section 2, it is clear that the qualification requirements found in Section 6 are the essential conditions of eligibility which the bidder is bound to satisfy so as to establish his capability to perform the contract. Clause 1 (b) of Section 6 further declared that the non-compliance of the qualification requirements found in Section 6 shall render the bids non-responsive. Thus, it is apparent that the said qualification requirements are the essential conditions requiring strict compliance. In other words, the deviation from such conditions would amount to a material deviation which is impermissible under Clause 24.6 of Section 2. For the reasons stated above, I am of the opinion that what is prescribed in Section 6 of Volume 1 is the essential eligibility criteria which the bidder is bound to satisfy so as to consider the price quoted by him. As noticed above, since the respondents 3 to 5 did not satisfy the eligibility criteria under Clause 2.0 of Section 6 of Volume 1 and Clause 6.2.1 (C) (b) of Volume 2C of the Bidding Document, which are the essential conditions of eligibility, their price bids contained in Envelope-2 cannot be opened and evaluated. Apparently, the AP TRANSCO failed to identify the essential conditions of eligibility specified in Section 6 of Volume 1 and proceeded on a wrong assumption that the relaxation of the said conditions is permissible under Clause 24.6 of Section 2. Such relaxation of the essential conditions of eligibility in favour of the respondents 3 to 5 in breach of the norms and standards prescribed amounts to arbitrary exercise of power apart from being discriminatory since it resulted in exclusion of other persons similarly situated form tendering for the contract. Thus the entire decision making process is vitiated by arbitrariness. The law is well-settled that the State or its Instrumentalities have the public duty to be fair to all concern and if the decision making process of the State or its Instrumentalities is found to be vitiated by unreasonableness, arbitrariness or mala fides, it is open to this Court to interfere in exercise of its discretionary power under Article 226 of the Constitution of India. The AP TRANSCO being an instrumentality of the State is bound to adhere to the standards and procedure laid down by it under the Tender Notice and it is obligatory on its part to evaluate the bids received strictly in accordance with the conditions prescribed particularly with regard to the qualification requirements which are essential conditions. Even assuming that the petitioner Consortium failed to submit the Type Test Reports from the International Test Laboratories as mentioned in the Technical Specification and that the AP TRANSCO has relaxed the said condition in favour of the petitioner, the same cannot be a valid ground to permit the AP TRANSCO to relax the essential qualification requirements in favour of the other bidders. I am also unable to agree with the contention raised by the respondents that the petitioner cannot be granted any relief since the writ petition was filed at a belated stage long after opening of the technical bids. The material on record shows that though the technical bids were opened on 25.03.2008 the petitioner and other bidders were informed by the AP TRANSCO only on 27.05.2008 that the technical bids were qualified pending verification of the documentary proofs and calling upon them to attend the price bid opening on 30.05.2008. After the price bids were opened on 30.05.2008, one of the joint venture partners of the petitioner Consortium addressed a letter to the AP TRANSCO on 04.06.2008 making a specific allegation that the respondents 3 to 5 herein did not meet the prescribed technical specifications and therefore their price bids ought not to have been opened. Since the AP TRANSCO failed to consider the said objection, the present writ petition came to be filed on 04.07.2008. Hence, no laches can be attributed to the petitioner and the contention that the writ petition is not bona fide is untenable. Accordingly, the Writ Petition is disposed of declaring the impugned action of the respondents 1 and 2 in opening the price bids of the respondents 3 to 5, who failed to comply with the essential eligibility conditions prescribed under the Tender Notice the relaxation of which is impermissible, as arbitrary and illegal. No costs.