JUDGMENT : M.R. SHAH, J. 1. As common question of law and facts arise in this group of petitions, all these petitions are decided and disposed of together by this common judgment and order. 2. There shall be a formal order of RULE in these petitions. Shri Ajay Mehta, learned Advocate waives service of notice of Rule on behalf of the respondent No.1 who can be said to be the main contesting part and who has remained present. Shri Meena, learned Advocate appearing on behalf of the respondent No.2 has chosen to remain absent. 3. By way of these petitions under Article 226 of the Constitution of India, respective petitioners – respective bidders have prayed for an appropriate writ, direction and order to direct the respondents to treat the respective petitioners as technically qualified and thereby to consider their bids for opening of the price bids. 4. For the sake of convenience, facts in SCA No.8254/2018 are narrated and the said SCA be treated and considered as a lead matter. 5. The facts leading to the present petitions in nutshell are as under: 5.1. That the respondent No.1 herein – Oil Natural Gas Corporation (hereinafter referred to as “ONGC”) had issued a notice inviting tender dated 12.01.2018 for consideration of Drill Site including approach roads at Mehsana Asset, Mehsana. The last date for submission of bids was 12.02.2018. The petitioners had submitted its bid on 11.02.2018. The last date and time for submission of the physical document was 12.02.2018. The petitioner firm submitted its documents on 11.02.2018. That the techno-commercial bids in e-portal and the physical documents came to be opened on 12.02.2018. It is the case on behalf of the petitioners that the representation of the petitioner firm remained present at the relevant time while opening the techno-commercial bids. That a preliminary scrutiny of the documents had taken place on the same date and according to the petitioners, the petitioners were under the impression that tender bids submitted by the petitioners were in conformity with the conditions laid down in the notice inviting tender and therefore, its bid was accepted by the respondent No.2. That a preliminary scrutiny of the documents had taken place on the same date and according to the petitioners, the petitioners were under the impression that tender bids submitted by the petitioners were in conformity with the conditions laid down in the notice inviting tender and therefore, its bid was accepted by the respondent No.2. It is the case on behalf of the petitioners that time and date of opening of the price bid was to be intimated separately to all the bidders who were found successful in the opening of the techno-commercial bids and, therefore, the petitioner waited for such an intimation to be received from the respondent No.2 herein. 5.2. It is the case on behalf of the petitioners that at the time of submission of the tender bid, the petitioners had also submitted EMD in form of Bank Guarantee of Rs.23,15,000/- in conformity with the tender conditions. According to the petitioners the calculation of the EMD was undertaken by the petitioner firm based on the example given by the respondent No.2 in its tender documents more particularly Bidders Response Sheet. According to the petitioners, petitioners had submitted its bid for 17% of the total quantum of work which was undertaken and thereby had calculated its EMD at the aforesaid amount. It is the case on behalf of the petitioners that after waiting for nearly about two months for any intimation from the respondent No.2 regarding the opening of the price bids the petitioner sought clarification vide its letter dated 12.04.2018 calling upon the respondent No.2 herein to accede to the request of the petitioner for considering atleast 10% of the quantum of the total estimated cost instead of 17%. It is the case on behalf of the petitioners that the said request was made considering that despite the petitioner firm having financial capacity of undertaking 17% of the total quantum of work, however since the minimum quantity which can be allotted to a firm was 10%, the petitioners should atleast be considered for such minimum allotment and therefore, such a request was made by the petitioner firm. It is the case on behalf of the petitioners that thereafter as there was no response from the respondents, the petitioner was constrained to send a legal notice dated 10.05.2018 through his Advocate calling upon the respondent No.2 to treat the petitioner as having been technically qualified and to consider its bid at the stage of opening of the price bids. However, as there is no response and presumably the petitioners’ tender bid is rejected at the technical stage, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs. 6. Shri Jinesh Kapadia, learned Advocate has appeared on behalf of the respective petitioners and Shri Ajay Mehta, learned Advocate has appeared on behalf of the respondent No.1 who has made submissions on behalf of the respondents at length. 7. Shri Kapadia, learned Advocate appearing on behalf of the respective petitioners has vehemently submitted that as such the respective petitioners have complied with all the terms and conditions/eligibility criteria of the tender documents/notice and therefore, all of them are required to be treated and/or considered as technically qualified at technical stage and their price bids are required to be opened. 7.1. It is further submitted by Shri Kapadia, learned Advocate appearing on behalf of the respective petitioners that as such respective petitioners submitted the bid documents in accordance with the tender documents/notice. It is submitted that as per the terms and conditions of the tender document, bidders can participate for minimum of 10% of total quantum of work or more quantum of work. It is submitted that as the capacity of the petitioner was to undertake 17% and therefore, they submitted bid for 17% of the total quantum of work and accordingly they paid the EMD. It is submitted that as per the terms and conditions of the tender document the distribution of work and as per the clause for distribution of work, the work shall be distributed amongst the successful bidder, subject to a maximum of six bidders and as per the distribution table mentioned in Section 3 of the Bid Evaluation Criterion. It is submitted that therefore even if a bidder has submitted bid for 17% like in the present case, in that case, they can be awarded the work to the extent of 10%. It is submitted that therefore even if a bidder has submitted bid for 17% like in the present case, in that case, they can be awarded the work to the extent of 10%. It is further submitted by Shri Kapadia, learned Advocate appearing on behalf of the petitioner that even sub-clause (vii) of Clause 2 of section 3 – Bid Evaluation Criterion provides that in case quantum of work quoted by the higher rank bidder are less than the percentage of quantum of work as per the Distribution Table then lower rank bidder shall be considered for award of additional quantum of work in proportion of their original allotment subject to maximum percentage of quantum of work for which the bid is quoted. It is submitted that therefore in such a situation even between 10% to 20%, 20% to 30%, 40% to 50% is permissible, however subject to compliance of sub-clause (vii) of Clause 2 of Section 3 of the Bid Evaluation Criterion. 7.2. It is further submitted that even in the tender document and specimen of the Bidders Response Sheet and details to be furnished and considering the example it can be seen that bid for the quantity between 10% to 20%, 20% to 30%, 40% to 50% as the case may be shall be permissible. It is submitted that therefore considering the aforesaid and even considering the example in the proforma with Bidders Response Sheet produced alongwith tender document, thereafter when the petitioner submitted the bids to the extent of 25% of the quantum of work and even considering the subsequent request/clarification that the bid of the petitioner be considered to the extent of 10% quantum of work, it cannot be said that the petitioner was non-responsive to the tender documents and on the aforesaid ground of submitting the bid for 17% quantum of work, the petitioner cannot be declared technically disqualified at technical stage. It is submitted that therefore the impugned decision in treating and/or considering the bids submitted by the petitioner as technically disqualified at technical stage is most arbitrary, perverse and not sustainable under the law, which deserves to be quashed and set aside. 8. All these petitions are vehemently opposed by Shri Ajay Mehta, learned Advocate appearing on behalf of the respondents. An affidavit in reply is filed on behalf of the respondents. 8.1. 8. All these petitions are vehemently opposed by Shri Ajay Mehta, learned Advocate appearing on behalf of the respondents. An affidavit in reply is filed on behalf of the respondents. 8.1. It is submitted by Shri Mehta, learned Advocate appearing on behalf of the respondents that the respective bidders as per the various terms and conditions of the notice inviting tenders were required to submit their bid for either 10%, 20%, 30%, 40%, 50%, 60% or 100% of the quantum of work. It is submitted that Bidders Response Sheet as Form B(2) specifies the same. It is submitted that however the petitioner had deliberately deviated from the same and have not only inserted a further row in the quantum of work for which bid is to be submitted, it submitted its bid for 17% of the work. It is submitted that the same was not only a violation of the tender but was clear deviation from the quantum of work for which the bid was to be submitted. It is submitted that the Bidders Response Sheet wherein the petitioner have inserted a row also specifically provide that the bid submitting quote for drill sites more than mentioned above shall be straightway rejected. It is submitted that therefore the petitioners’ bids are rightly rejected outright. 8.2. It is further submitted by Shri Mehta, learned Advocate that thereafter the petitioner having realized that there was a deviation and their bids might be rejected at the technical stage, had addressed a letter dated 12.04.2018 and sought to modify the bid after closing date by stating that their bid be considered for minimum 10% of the quantum of estimate cost put to tender. It is submitted that as the bid was contrary to the tender requirement the bid for a deviant bid was liable for outright rejection and therefore, the respondent Corporation has rightly rejected the petitioner’s bids. Making above the submissions, it is requested to dismiss the present petitions. 9. Heard learned Advocates appearing for respective parties at length. It is submitted that as the bid was contrary to the tender requirement the bid for a deviant bid was liable for outright rejection and therefore, the respondent Corporation has rightly rejected the petitioner’s bids. Making above the submissions, it is requested to dismiss the present petitions. 9. Heard learned Advocates appearing for respective parties at length. At the outset it is required to be noted that the petitioner’s bids have been rejected at technical stage and the respective petitioners are considered technically disqualified at technical stage on the ground that the bids submitted by the petitioners are not as per the terms and conditions of the tender documents and there is a deviation from the tender document inasmuch as the respective petitioners submitted the bids for 17% of the total work. It is the case on behalf of the respondent Corporation that as such as per the terms and conditions of the tender document the bidders were required to submit their bid for either 10%, 20%, 30%, 40%, 50%, 60% or 100% of the quantum of work only and not in between viz. between 10% to 20%, 30% to 40% as the case may be. On the aforesaid ground alone the respective petitioners are treated and considered as technically disqualified. However, considering the respective terms and conditions of the tender documents and even considering the form B(2) with respect to Bidders Response Sheet and other terms and conditions of the tender documents, it cannot be said that if the concerned bidder submits the bid for the work between 10% to 20%, 20% to 30%, 30% to 40% etc. as the case may be, their bids are liable to be rejected at the technical stage. There are no such specific terms and conditions as sought to be contended on behalf of the respondent Corporation that the tenders were required to be submitted for either 10%, 20%, 30%, 40% .... of the quantum of work. On the contrary considering the example to Form B(2), an impression can be gathered amongst the concerned bidders that the bid between 10% to 20%, 20% to 30% .....etc. can be permissible. The example which is given is for the work offered between 20%30% i.e. 25% quantum of work. of the quantum of work. On the contrary considering the example to Form B(2), an impression can be gathered amongst the concerned bidders that the bid between 10% to 20%, 20% to 30% .....etc. can be permissible. The example which is given is for the work offered between 20%30% i.e. 25% quantum of work. In the example it is stated that if bidder opts for 25% quantum of work with the total cost for which the bid is submitted shall amount to Rs.64,58,08,730 * 25% = Rs.8,64,52,183/. Thus, even the example which was given in the Form B(2) with respect to the Bidders Response Sheet one can easily get an impression that the bid for 25% etc. i.e. in between 10% to 20%, 20% to 30%.... etc. shall be permissible. Even considering Clause (c) of example 3 to section 3 – Bid Evaluation Criterion, it provides that the bidders can participate for a minimum of 10% total quantum of work or more quantum of work as per the Distribution Table in Bidders Evaluation Criterion as per the convenience and eligibility. It is required to be noted that as per Clause (c) of section 3 – Bid Evaluation Criterion with respect to distribution of work, work shall be distributed as per the Distribution Table. The said clause reads as under: “2. The work shall be distributed as under, amongst successful bidder, subject to a maximum of Six (06) bidders, as decided by ONGC depending upon the opening of sealed envelopes as elaborated below in Para i to vii. The table below indicates the percentage of total quantum of work which may be allotted to the successful bidders subject to the limit of quantum of work for which bid has been submitted by the bidder. Distribution Table: Percentage of quantum of work Availability of techno-commercially acceptable bidders and agrees to match prices with L-1 ranked bidder. L-1 L-2 L-3 L-4 L-5 L-6 6 and above 30% 20% 20% 10% 10% 10% 5 30 20 20 20 10 4 40 30 20 10 3 50 30 20 2 60 40 1 100 (i). The Bidders have to quote only one figure as (-ve) % or (+ve) or at par to estimated cost which shall be common to all the items of price bid. (ii). Initial ranking shall be based on rates (%) quoted by them. The Bidders have to quote only one figure as (-ve) % or (+ve) or at par to estimated cost which shall be common to all the items of price bid. (ii). Initial ranking shall be based on rates (%) quoted by them. If there is more than one bidder quoting same rate (%) and same quantum of work, then the ranking will be made based upon their higher average annual turnover for the preceding two financial years. However, in the case of more than one bidder quoting same rate with different quantum of work, then the ranking shall be based upon higher quantum of work for which bid is submitted. (iii). The L-2 and subsequent bidders shall be asked to match their rates (Quoted percentage) with acceptable L-1 rates in sealed envelopes. Such sealed envelopes shall be opened in the order of their ranking. (iv). In case any of the bidder, other than L-1 bidder does not accept L-1 rates then ranking will shift automatically. (v). The process of opening of sealed envelopes shall be stopped once the total quantum of work awarded is reached viz. 100% is reached. (vi). In case the sum of the total quantum of work so allotted above are less than 100%, then bidders who has quoted for higher percentage of quantum of work of sites shall be considered for additional percentage of quantum of work subject to maximum of quantum of work for which bid is submitted in proportion of their original allotment. vii. In case quantum of work quoted by the higher ranked bidder are less than the percentage quantum of work as per the table above then lower ranked bidder shall be considered for award of additional quantum of work in proportion of their original allotment subject to maximum percentage of quantum of work for which bid is quoted:” 9.1. Considering the relevant clauses of the tender document it appears that a bidder can submit its bid looking to its capacity meaning thereby if it has a capacity upto 17% (as in the present case) they can bid for the same alongwith the deposit of earnest money accordingly, however the distribution of work shall be as per the above distribution table and sub-clause (2) of Clause 3 reproduced hereinabove. On considering the entire tender document, there does not seem to be any specific bar in submitting the bid in between 10% to 20%, 20% to 30%.... etc. as contended on behalf of the respondents. As observed hereinabove on the contrary in the example to the Form B(2) with respect to the Bidders Response Sheet, the example which is given is for 25% quantum of work which can be said to be in between 20%30%. Thus, considering the example an impression can be gathered to any bidder that the bid can be submitted for the percentage between 10% to 20%, 20% to 30%.... etc. of the total quantum of work, however looking to their financial position and condition. It is required to be noted that in the present case not only one but three different bidders submitted accordingly and considering the example to Form B(2) with respect to Bidders Response Sheet produced alongwith the tender document, all of them submitted the bids for 17% quantum of work looking to their fulfilling the eligibility criteria and looking to their financial position and capacity. Even considering the relevant clause of distribution work more particularly sub-clause (2) of Clause (C) of section 3 – Bid Evaluation Criterion, even subsequently also and an eventuality occurring as mentioned in Clause (vii), the additional quantum of work in proportion of their original allotment is permissible, however subject to maximum percentage of quantum of work for which the bid is quoted. Therefore, in case of eventuality occurring as mentioned in Clause (vii), the additional quantum of work is to be awarded which shall be in proportion and which may be in between 10% to 20%, 20% to 30%..... etc. Therefore, even the percentage of quantum of work in between 10% to 20%, 20% to 30%... etc. will be permissible, however in case the eventuality occurring in Clause (vii) of Clause (2) of Clause (C) of Section 3 – Bid Evaluation Criterion reproduced hereinabove. 9.2. etc. Therefore, even the percentage of quantum of work in between 10% to 20%, 20% to 30%... etc. will be permissible, however in case the eventuality occurring in Clause (vii) of Clause (2) of Clause (C) of Section 3 – Bid Evaluation Criterion reproduced hereinabove. 9.2. Considering the aforesaid facts and circumstances of the case, the ground on which the petitioners’ bids are technically disqualified at technical stage are not germane and they are not supported by any terms and conditions of the tender document, therefore action of the respondents in treating and/or considering the respective petitioners as technically disqualified at technical stage cannot be sustained and the same deserves to be quashed and set aside and their price bids are required to be opened if the respective petitioners fulfill all other eligibility criteria. At this stage it is required to be noted that it is not the case on behalf of the respondents that except the grounds stated in the affidavit in reply recorded hereinabove, the respective petitioners do not fulfill any other eligibility criteria as per the tender document. 10. In view of the above and for the reasons stated above, all these petitions succeed. Impugned action of the respondents considering and/or treating the respective petitioners as technically disqualified at technical stage on the ground stated in the affidavit in reply cannot be sustained and the same deserves to be quashed and set aside and accordingly quashed and set aside. If all other conditions are satisfied, in that case the respondents are directed to open the price bids of the respective petitioners and to consider the bid submitted by the petitioners on merits alongwith other successful bidders. Rule is made absolute to the aforesaid extent in each of the petitions. No costs.