Consortium Comprising Hal Offshore Limited Eagle Holding Pte. Ltd vs Oil And Natural Gas Corporation Limited

CNR No : HCBM020296762026

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.29675 OF 2026
Consortium comprising HAL Offshore Limited, ]
Eagle Holding Pte. Ltd. and PT Duta Marine, ]
having its office at 32 Corporate Avenue, ]
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4 Floor, B Wing, Near Paper Box Industry, ]
Off. Mahakali Caves Road, Andheri (East), ]
Mumbai – 400093. ] .. Petitioner
Versus
1. Oil and Natural Gas Corporation Limited, ]
having its office at Central LSTK Procurement ]
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Department, CPD Mumbai Region, 15 Floor, ]
Maker Tower-E, Cuffe Parade, Mumbai-400005]
and also at Engineering & Projects Excellence ]
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Centre (EPEC), 4 Floor, 11 High Office, ]
Sion-Bandra Link Road, Mumbai – 400017. ]
2. Shapoorji Pallonji Energy O & M Solutions ]
Private Limited, ]
having its office at SP Centre, ]
41/44 Minoo Desai Marg, Colaba, ]
Mumbai-400005. ] .. Respondents
Mr. Janak Dwarkadas, Senior Advocate, with Mr. Akash Loya,
Ms. Gathi Prakash, Ms. Priyanka Desai, Ms. Shivani Varade and
Ms. Vidushi Trivedi, Advocates, i/by Cyril Amarchand Mangaldas,
for the Petitioner.
Mr. D.J. Khambata, Senior Advocate, with Ms. Nishita Gupta,
Ms. Chitra Rentala, Mr. Parikshith K., Mr. Treenok Guha and
Ms. Yashita Bhardwaj, Advocates, i/by Trilegal, for Respondent
No.1.
Mr. Akshay Doctor with Ms. Farida Dholkawala, Mr. Sahil
Hariyani and Ms. Asha Gokhale, Advocates, i/by Desai & Diwanji,
for Respondent No.2.
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CORAM : RAVINDRA V. GHUGE, ACJ. &
GAUTAM A. ANKHAD, J.
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RESERVED ON : 31 August, 2026
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PRONOUNCED ON : 7 September, 2026
JUDGMENT : { Per Gautam A Ankhad, J }
1. Rule. Rule is made returnable forthwith. The matter is
heard finally with the consent of the learned counsel appearing for
the parties.
2. Respondent No.1 is developing an Offshore Oil and
Gas Field project, called the R-Series Fields, for which it requires
(i) two new well platforms, one riser platform named RJP, bridge-
connected to the existing R-10A platform; and (ii) a Mobile
Offshore Production Unit ( MOPU ) connected to the riser platform
for receiving and processing well fluids from the oil field. The
MOPU is required to house oil and gas processing facilities, power
generation and supply facilities for the ‘well head platforms’ within
the R-Series Fields, including facilities for operating pumps and
other equipment. Accordingly, Respondent No.1 issued two tenders:
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(i) Tender No. ZW1GC25002 dated 25 October, 2025
( LSTK Tender ); and
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(ii) Tender No. ZW1GC26001 dated 7 January, 2026
for hiring of MOPU ( subject Tender or MOPU
Tender ).
The two tenders are separate, but interfacing and interlinked
tenders, each having distinct scope of work and forming part of the
overall development of the R-Series Fields.
3. The Petitioner has filed the present Petition impugning
the rejection of its technical bid by Respondent No.1 vide letter
st
dated 21 August, 2026 in respect of the MOPU Tender.
4. In brief, the relevant dates and sequence of events for
the purposes of this Petition are stated as under:-
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(i) On 7 January, 2026, Respondent No.1 floated the
MOPU Tender. The time for the bidders to submit the
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bid was extended on several dates. On 29 April, 2026,
the Petitioner, a Consortium comprising of HAL
Offshore Limited, Eagle Holding Pte. Ltd. and PT Duta
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Marine, Indonesia, executed a Memorandum of
Understanding ( MoU ) for participating in the MOPU
Tender.
th
(ii) On 18 May, 2026, the Petitioner submitted its
nd
technical bid and on 2 June, 2026, its financial bid.
rd
On 3 June, 2026, Respondent No.1 opened the
technical bids. There were only two bidders, namely,
the Petitioner and Respondent No.2.
(iii) In July, 2026, Respondent No.1 sought two rounds of
clarifications from the Petitioner on several issues,
including the technical experience of PT Duta Marine.
The Petitioner responded to the queries and furnished
the requisite documents.
th
(iv) On 17 August, 2026, a third round of clarification was
sought by Respondent No.1 regarding the ‘Role and
scope of work’ mentioned by the Petitioner in the table
forming a part of the MoU executed between the
Consortium members, particularly in relation to the
experience of HAL Offshore Limited and Eagle
Holding Pte. Ltd. Respondent No.1, inter alia , stated
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that the said consortium members had not
independently demonstrated Fleet experience ( Fleet
Experience ) and Operation and Maintenance
experience ( O&M Experience ) under Clause
B.1.2.1(a)-I-(ii) of the Bid Evaluation Criteria ( BEC )
and called upon the Petitioner to furnish the necessary
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documents by 3:00 p.m. on 19 August, 2026.
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(v) On 19 August, 2026, the Petitioner protested against
the short timeline placed by Respondent No.1 to
furnish its clarification. However, it responded, inter
alia , stating that Respondent No.1 had required bidders
to submit an MoU in the prescribed format only to
ascertain the percentage distribution of the bid value.
Consequently, the activities identified in the MoU
could not retrospectively be used to evaluate each
Consortium member, individually against the clauses
of BEC and no such requirement was stipulated in the
Tender . The Petitioner disputed Respondent No.1’s
interpretation that the table mentioned the MoU is the
representation of distribution of scope of work against
which the qualification of individual member of the
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Consortium will be evaluated. The Petitioner
maintained that its offer was technically qualified and
commercially competitive and that its acceptance
would further the principle of maximum competition.
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(vi) On 19 August, 2026, Respondent No.1 filed Caveats
in this Court in respect of any proceedings that might
be initiated by either bidder, in the event of rejection of
their bid.
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(vii) On the same day, i.e., 19 August, 2026, the Petitioner,
by its email addressed to the Chief Vigilance Officer of
Respondent No.1, invoked the Independent External
Monitors ( IEM ) framework and placed on record its
apprehensions regarding the ongoing bid evaluation
process. Further representations were also made by the
th th
Petitioner to IEM on 19 and 20 August, 2026.
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(viii) On 21 August, 2026, Respondent No.1 rejected the
Petitioner’s bid on the ground that it was technically
not acceptable. The relevant portion of the rejection
letter reads as follows:
“Sir,
With reference to subject tender and offer, it is
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hereby informed that bid against the referred
tender has been rejected due to the reason
mentioned as under:
“The Bidder (Consortium) has submitted a
letter titled “Post Bid Clarification –
rd
Against 3 Round of Query”, Document
No. HAL / OFFER / HIRING MOPU-RJP
PLATFORM / ZW1GC26001 / 25-26, dated
19.08.2026. However, the Bidder has not
submitted the requisite supporting
documentary evidence of experience for
activities (Role & Scope of work to be
performed) by the respective Consortium
Members, as specified in the MoU
submitted by the Bidder (Consortium), i.e.
(1) Fleet Experience and (2) Operation &
Maintenance (O&M) Experience of M/s.
HAL Offshore Limited and (2) Operation
& Maintenance (O&M) Experience of M/s.
Eagle Holding Pte. Limited, as required
under Technical BEC Clause B.1.2.1(a)-II,
in conjunction with B.1.2.1(a)-I-(ii) and
ITB Clause 7.14.
In view of above evaluation, the Bidder
(consortium) is technically not acceptable
under BEC Clause B.1.2.1(a)-II.
Hence, the offer submitted by the
Consortium comprising M/s. HAL Offshore
Limited, India; Eagle Holding Pte. Ltd.,
Singapore; and PT Duta Marine, Indonesia,
with M/s. HAL Offshore Limited, India as
the Consortium Leader, is TECHNICALLY
NOT ACCEPTABLE.”
It is informed that bidder can review the above
reason for rejection of bid and raise a one-time
representation to challenge rejection for any
incorrect disqualification within 48 hours of this
intimation. However, any additional/new
documents/information/details submitted with
representation, will not be considered for
evaluation.”
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rd
(ix) On 23 August, 2026, the Petitioner filed its one-time
representation before Respondent No.1 to challenge the
rejection of its technical bid. The Petitioner called upon
Respondent No.1 to consider its earlier representation
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dated 19 August, 2026 pending before the IEM before
proceeding further with the tender. The Petitioner also
requested for a hearing before the financial bid of
Respondent No.2 was opened and awarded.
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(x) On 24 August, 2026, Respondent No.1 opened the
financial bid of Respondent No.2.
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(xi) On 25 August, 2026, a hearing was held before the
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IEM on the Petitioner’s representations dated 19
th th
August, 2026, 20 August, 2026 and 24 August, 2026.
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(xii)On 27 August, 2026, the IEM issued its advisory
opinion and declined to intervene in the MOPU Tender
process. It clarified that the IEM shall not be made
Respondents in any legal proceedings and that their
opinion is non-binding. The opinion, inter alia ,
recorded that the Petitioner’s bid did not meet the
stipulated BEC requirements and that there was no
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material indicating any unfairness in the bid evaluation
process.
(xiii)It is in this backdrop that the present Petition came to
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be filed on 27 August, 2026.
SUBMISSIONS ON BEHALF OF THE PETITIONER
5. Mr. Dwarkadas, learned senior counsel appearing for
the Petitioner, submits that the Petitioner’s bid could not be rejected
on the ground that:
(i) HAL Offshore Limited, the lead Consortium member,
had not submitted supporting documents demonstrating
its Fleet experience and O&M experience; and
(ii) Eagle Holding Pte. Ltd., the second Consortium
member, had not submitted supporting documents
demonstrating its O&M experience.
6. The Petitioner’s disqualification is on hyper-technical
grounds and is contrary to the terms of the Tender. He submits that
Clause B.1.2.1(a)-II of the BEC requires, inter alia , that:
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(a) The leader of the Consortium shall have a minimum of
26% stake in terms of bid value;
(b) Each member of the Consortium shall be jointly and
severally liable to Respondent No.1; and
(c) For this purpose, the role and scope of work to be
performed by the respective Consortium members,
expressed as a percentage of bid value, should be indicated
in the MoU. This is to ascertain the percentage of value
distribution only. The activities identified in the MoU
cannot be retrospectively used to evaluate each Consortium
Member against the BEC clauses.
7. Our attention is then invited to Column 3 of the table in
the MoU. It is contended that the intent of assigning percentage of
bid values in the MoU is to regulate financial responsibility. It does
not mean that the percentage of bid value has any bearing on the
technical experience of the Consortium as a whole. The past
technical experience demonstrated by a Consortium member cannot
be disregarded.
8. Clause B.1.2.1(a)-II, read with Clause 2.1.1 of the
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BEC, expressly provides that, notwithstanding the joint and several
liability of the Consortium members, the leader of the Consortium,
i.e., HAL Offshore, is to undertake primary responsibility for
executing the Scope of Work under the Tender. Thus, Respondent
No.1’s interpretation of ITB Clauses 1.3.4 and 7.14(j), read with
BEC Clause 2.1.3, is inconsistent with BEC Clauses B.1.2.1(a)-II
and 2.1.1. The provisions must be construed harmoniously and so
long as any one of the Consortium members has demonstrated the
requisite technical experience, including Fleet experience and O&M
experience, the Petitioner cannot be disqualified.
9. Lastly, it is submitted that the financial bid of
Respondent No.2 was opened with undue haste and that the
sequence of events of August, 2026 indicates that the decision to
reject the Petitioner’s bid was premeditated. In any event, the
Petitioner ought to be permitted to place its financial bid before this
Court in a sealed envelope, so as to enable Respondent No.1 to
obtain the most competitive price, given that the contract is
proposed to be awarded for a period of twelve years. In support of
the above submissions, reliance is placed upon the judgments in
Atasha Ashirwad Builders (J.V.), Nagpur v. State of Maharashtra
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1
and Ors. , New Horizons Limited & Anr. v. Union of India &
2
Ors. , and Jai Bholenath Construction v. The Chief Executive
3
Officer, Zilla Parishad, Nanded & Ors. .
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1-ONGC
10. On the other hand, Mr. Khambata, learned senior
counsel for Respondent No.1 submits that the successful contractor
is required to undertake, inter alia , project management,
engineering, procurement, fabrication, testing, pre-commissioning,
installation, commissioning, start-up and operation of MOPU oil
and gas facilities for handling well fluids from the R-Series Fields,
together with the associated facilities and services. The MOPU
Tender is complementary to the LSTK Tender. The interface
between the two Tenders is recognized in Clause 1.1 of the Scope of
Work of MOPU Tender.
11. Mr. Khambata submits that the Petitioner’s bid is
correctly rejected as it did not meet an essential technical criterion.
The Petitioner had full knowledge that BEC Clauses B.1.2.1(a)-II
and 2.1.3 as also Clauses 1.3.1, 1.3.3, 1.3.4 of ITB of the MOPU
1 2010 SCC OnLine Bom 1545
2 (1995) 1 SCC 478
3 Civil Appeal No.4140 of 2022 (Special Leave Petition (C) No.7150/2022)
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Tender expressly links the activity allocated to a particular
Consortium member with that member’s own eligibility and
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experience. The MoU dated 29 April, 2026 constitutes an inter se
declaration of the respective roles, scope of work and percentage
participation of the three Consortium members.
12. Mr. Khambata submits that, notwithstanding the
aforesaid allocation, Clause 31 of the ITB provides that the contract
will be awarded only to a bidder whose bid is determined to be in
“full conformity” with the bid documents. Despite an opportunity
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on 17 August, 2026 to furnish the requisite documents, the
Petitioner did not file any documents to demonstrate the requisite
Fleet Experience and O&M Experience of HAL Offshore; or the
requisite O&M Experience of Eagle Holding, corresponding to the
activities expressly allocated to them under the MoU. The Petitioner
relies solely upon the experience of PT Duta Marine for satisfying
both technical requirements, while the participation of HAL
Offshore and Eagle Holding is merely financial in nature. In view
of the Petitioner’s failure to furnish the experience credentials of
HAL Offshore and Eagle Holding for the activities specifically
allocated to them under the MoU, the rejection of the Petitioner’s
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bid was justified. Reliance on PT Duta Marine’s experience does
not cure the deficiency, particularly since the scope of PT Duta
Marine is only 10%.
13. Mr. Khambata submits that after the rejection of its bid,
the Petitioner sought permission to alter the roles and
responsibilities of the respective Consortium members specified in
the MoU in its representation before the IEM so as to align them
with terms of the Tender. He submits that such a post-bid
modification is impermissible under Clause 7.14(j). This position is
also wholly inconsistent with the Petitioner’s contention that the
experience of PT Duta Marine alone is sufficient, irrespective of the
activities allocated to HAL Offshore and Eagle Holding. Reliance is
placed upon the judgments in Prakash Asphaltings and Toll
4
Highways (India) Ltd. vs. Mandeepa Enterprises & Ors. and N.
5
G. Projects Ltd. vs. Vinod Kumar Jain to submit that a writ Court
ought to defer to the tendering authority’s interpretation of the bid
documents and this Court ought not to interfere in infrastructure
contracts involving highly specialised and technical requirements. It
is further submitted that, if the Petitioner considers its exclusion
4 (2026) 4 SCC 310
5 (2022) 6 SCC 127
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wrongful, it has an alternative remedy of seeking damages before
the Civil Court. Hence, the Petition ought to be dismissed with
costs.
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2
14. Mr. Doctor, learned counsel appearing for Respondent
No.2, supports the submissions advanced by Mr. Khambata. He
submits that technical eligibility must be assessed on the basis of
the documents submitted with the bid and that any attempt to
modify the bid thereafter would be contrary to the terms of the
Tender. He further submits that the price bid submitted by
Respondent No.2 is confidential and ought not to be disclosed,
particularly when the Petitioner’s technical bid has already been
rejected. Hence the question of this Court accepting the Petitioner’s
financial bid in a sealed cover does not arise.
REASONS
15. The Petitioner’s bid has been rejected by Respondent
No.1 on the ground that the Petitioner did not submit the experience
related documents of its consortium members. We can dismiss the
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petition on this limited ground. However, since several arguments
have been advanced before us including as to why the documents
were not required under the Tender and that the impugned rejection
is invalid, we shall deal with the same.
(I) Respondent No.1 has complied with the Principles of
Natural Justice.
16. The Petitioner alleges that the rejection of its technical
bid was premeditated and hurriedly done to eliminate competition.
It was not furnished with a proper opportunity and was given less
than 2 days to respond. We are unable to accept this submission.
17. The chronology of events itself demonstrates that
Respondent No.1 did not hurriedly proceed to precipitate the issue
against the Petitioner. The bid opening had itself been extended on
th rd
six occasions, from 17 February, 2026 to 3 June, 2026. The
Petitioner had adequate time to arrange and submit its eligibility
documents related to its previous experience.
18. In July 2026, two rounds of clarification were sought
by Respondent No.1 on several aspects. The Petitioner responded to
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those queries and furnished documents. Thereafter, upon further
scrutiny of the bid and the MoU submitted by the Petitioner,
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Respondent No.1 raised a third clarification on 17 August, 2026.
This related to a specific deficiency. Respondent No.1 required
documentary evidence of the past experience of HAL Offshore
Limited and Eagle Holding Pte. Ltd. for activities allocated to them
under their MoU. The Petitioner was given time until 3:00 p.m. on
th
19 August, 2026 to respond with the supporting material necessary
to satisfy the Tender conditions. Instead of furnishing the
documents, the Petitioner disputed the interpretation placed by
Respondent No.1 on the Tender conditions and stated, in substance,
that the requirement was not applicable to the individual
Consortium members.
19. The Petitioner’s attempt to portray the third
clarification as a belated demand or a new technical requirement is
wholly misconceived. The documents sought by Respondent No.1
were basic supporting documents, such as the relevant Purchase
Orders and/or Contracts, which ought to have been readily available
with the concerned Consortium members and, more importantly,
were required under BEC Clause B.1.2.1(a)-II for submission along
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with the technical bid itself. The third clarification was thus an
opportunity afforded by Respondent No.1 to the Petitioner to
substantiate the technical eligibility. Thereafter, reasons were also
furnished for the rejection. In our view, the requirements of
procedural fairness stood satisfied.
20. The Petitioner thereafter invoked the IEM mechanism.
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A hearing was thereafter held before the IEM on 25 August, 2026,
following which the IEM in its non-binding advisory opinion
recording that the Petitioner’s bid did not meet the stipulated BEC
requirements and that there was no material indicating unfairness in
the evaluation process. The allegations of biased evaluation of the
Petitioner’s bid and the apprehension of third party intervention
aimed at disadvantaging the Petitioner were rejected by the IEM
holding that it did not substantiate the allegations nor offered any
comments in support of the same before the IEM.
21. In these circumstances, the reliance placed upon by
Mr. Dwarkadas on Jai Bholenath Construction is misplaced. In
that case, the Appellant was found to be the lowest bidder, but the
LOI was not issued in its favour. The bid of respondent no.4 therein
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was accepted when at the time of opening the technical bids, the
said respondent was disqualified. Hence, the Hon’ble Supreme
Court held that there was flagrant violation of Natural Justice and
arbitrary exercise of power. No such circumstances exist here. In
this case, we do not find that any principles of Natural Justice have
been violated as the Petitioner was given a notice, called upon to
furnish the relevant material and informed of the reason for its
rejection.
II. The Tender conditions expressly require the experience of
the respective Consortium members to correspond to the
activities undertaken by them.
22. We now turn to the central question, i.e. whether the
experience of one Consortium member can be relied upon in respect
of an activity which, under the Consortium's own bid and MoU has
been allocated to another Consortium member? For convenience,
relevant clauses relied upon by the parties are extracted:
Instruction to Bidder (ITB) Clauses :
ITB Clause - 1.3.1
Where consortium bids are allowed, leader and members
of consortium should themselves meet the experience
criteria covering the respective activities of work to be
performed by them on their own and not through any other
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arrangement like through Supporting Company, Parent /
Subsidiary / Sister Subsidiary / Co-Subsidiary / Technical
Collaboration / Sub-contracting. Necessary documentary
evidence to this effect should be submitted with techno-
commercial bid.
………………….
ITB Clause - 1.3.3
The MoU should clearly define the role/scope of work to
be performed by each constituent and should clearly
define the leader of the Consortium. All the members of the
Consortium must resolve and affirm in the MoU that each
party shall be jointly and severally liable to ONGC for any
and all obligations and responsibility arising out of the
Contract and for discharging all obligations under the
Contract. MoU signed between the members of the
Consortium shall form part of the contract. In case of
award of contract, the MoU shall be kept valid through the
entire contract period, including extensions, if any. After
award of contract, no alterations/modifications would be
permitted in the MoU.
ITB Clause - 1.3.4
Only that consortium member who has undertaken a
particular activity in execution of a contract shall be
considered as having technical experience of that
particular activity.
ITB Clause - 7.14
Joint venture bids and consortium bids where
consortium bids are specifically allowed as per
provisions under Clause 1.3 above.
………………….
(j) No alteration or modification in the constituents or
composition of a Consortium shall be permitted
after submission of bid and also after award of the
Contract during currency of the contract. A
constituent of the Consortium shall be allowed to
undertake and carry out only that activity for which
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that constituent has been evaluated and qualified
technically.
ITB Clause - 31.0 AWARD CRITERIA
The purchaser will award the contract to the successful
bidder whose bid has been determined to be in full
conformity to the bid documents and has been
determined as the lowest evaluated bid.
Bid Evaluation Criteria (BEC) Clauses :
B.1.2.1(a)-I-(ii)
1. Fleet Experience
Bidder shall demonstrate experience of
Owning/Leasing of FPSO or MOPU or FPU of not
less than 3 (Three) years in the past 15 years
through 1 (one) or more contracts.
………………….
2. Operation & Maintenance (O&M) Experience
The Bidder shall demonstrate experience for
Operation & Maintenance of FPSO or MOPU or
FPU of not less than 03 (Three) Years in the past 15
years through 01 (one) or more contracts.
………………….
B.1.2.1(a)-II
Where consortium bids are allowed, leader and
members of consortium should themselves meet the
experience criteria covering the respective activities of
work to be performed by them on their own and not
through any other arrangement like through Supporting
Company, Parent / Subsidiary / Sister Subsidiary / Co-
Subsidiary / Technical Collaboration / Sub-contracting.
Necessary documentary evidence to this effect should be
submitted with techno-commercial bid.
The members of consortium shall decide the Leader of
consortium. The leader of consortium shall have
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minimum 26% stake in terms of bid vide, as reflected in
the MOU executed by the consortium members. Each
member of consortium shall remain jointly and severally
liable to ONGC.
For the purpose of the role and scope of work to be
performed by the respective consortium members
expressed as a percentage of bid value should be
indicated in the Memorandum of Understanding
(MOU) submitted along with techno-commercial bid
as per format provided in the tender .
2.1.1 Notwithstanding the provisions that the members
of consortium shall be jointly and severally
liable to ONGC, the leader of consortium should
undertake unconditional acceptance of primary
responsibility of executing the entire ‘Scope of
work’ of this tender. This confirmation should be
submitted along with the techno-commercial bid.
2.1.2 A constituent of the Consortium shall not be
permitted to participate either in an individual
capacity as a bidder or as a member of another
Consortium in the same tender.
2.1.3 Only that consortium member who has
undertaken a particular activity in execution of
a contract shall be considered as having
technical experience of that particular activity.
Note : For detailed conditions on consortium bid
refer clause 1.3 & 7.14 of ITB.”
23. The above provisions, when read together, discloses a
consistent contractual scheme. Clause B.1.2.1(a)-I prescribes the
substantive technical experience required in respect of Fleet
Experience and O&M Experience. ITB Clauses 1.3.1, 1.3.3, 1.34,
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7.14(j) and BEC Clause B.1.2.1(a)-II then prescribes how those
experience requirements are to operate when the bidder is a
Consortium. The requirement is therefore activity-specific as well
as member-specific. The scheme emerging from the clauses quoted
above is as follows:
(i) the Consortium member must itself possess the
requisite experience for the activity which it has
undertaken to perform;
(ii) the experience of one Consortium member cannot be
attributed to another member, which has undertaken a
different activity;
(iii) the activity allocated to a Consortium member must
correspond to the technical qualification for which that
member has been evaluated;
(iv) the Consortium is required to furnish documents
demonstrating the experience of the concerned
member; and
(v) the allocation of responsibilities contained in the MoU
is not an inconsequential or merely financial
arrangement. It identifies the role and scope of work of
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each constituent and forms part of the contractual
framework.
Clause 7.14(j) reinforces this interpretation by expressly providing
that a constituent "shall be allowed to undertake and carry out only
that activity for which that constituent has been evaluated and
qualified technically." Thus, the Tender conditions establish a
deliberate linkage between the activity allocated to a Consortium
member, the technical experience of that member, and the activity
which that member will perform.
24. Mr. Dwarkadas has relied upon BEC Clause 2.1.1,
which requires the Consortium leader to undertake unconditional
primary responsibility for execution of the entire scope of work.
Mr. Khambata submits that Clause 2.1.1 concerns the responsibility
of the Consortium leader vis-à-vis Respondent No.1 for execution
of the entire contract. It does not state that the technical experience
of one Consortium members can be switched inter se. Nor does
Clause 2.1.1 contain any language overriding any of the other BEC
or ITB Clauses. We find Mr. Khambata’s submission reasonable
and find no inconsistency between Clause 2.1.1 and the requirement
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of individual experience. A Consortium may have a leader who
bears primary and unconditional responsibility for the entire
contract while, at the same time, each member must also possess
the experience required for the particular activity which it has
undertaken to perform, which it has jointly and severally agreed to
perform with others.
25. The Petitioner's MoU specifically identifies the role,
scope of work and percentage of participation of each Consortium
member. For convenience, the relevant Clause (ii) of MoU
delineating the works to be done by the Consortium partners of the
Petitioner is also extracted:
“(ii)
Scope of
work /
activity
to be
performed,
expressed
a a (%) of
Bid Value
Cross
reference
within the bid
offer, where
supporting
documents
are submitted
Name of the
Consortium
Member who
will carry out
the activity
Activities
Sl.
No.
(Role & Scope of Work to be performed)
1.
Ownership/Leasing of MOPU,
Top side Conversion & Bareboat
Charter
Over all Project Management.
Bid Bond and PBG
Production O&M
HAL
Offshore
Limited,
India
Section
70 %
1.G(A)
1
2.
3.
4.
Eagle
Holding
Pte.
Limited,
Singapore
Marine modifications of MOPU and
Marine & Production related
Operations & Maintenance Services
Section
20 %
1.G(B)
2
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Technical support for
Conversion to MOPU Section 2 10 %
Production related O&M
PT Duta
3 Marine,
Indonesia
1.
2.
26. The Petitioner itself represented in its bid that HAL
Offshore and Eagle Holding would undertake specified technical
activities. Once the Petitioner itself made this allocation,
Respondent No.1 is required to ascertain the experience mentioned
in the bid. The Petitioner’s contention that the MoU merely records
the financial participation of the Consortium members cannot be
accepted on a plain reading of the MoU. That HAL Offshore and
Eagle Holding having 70% and 20% share, respectively, in the bid
value declared the activities and works to be performed by them in
the table quoted above. A perusal of the works mentioned in
“Activities (Role & Scope of the Work to be performed)” in the
table mentioned in the MoU clearly shows that these are substantive
and components of the work contemplated under the Tender. They
cannot be characterized as functions which are purely financial in
nature. More importantly, the activities allocated to HAL Offshore
and Eagle Holding bear a direct relationship to the technical
experience prescribed under Clause B.1.2.1(a)-I, namely
owning/leasing of MOPU and its O&M experience. The Petitioner
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th
in its third clarification reply dated 19 August, 2026 specifically
admits to the lack of technical experience of HAL Offshore and
Eagle Holding, the relevant portion of which reads as under:
“6. ONGC must realize that this is a capital intensive
project and in the bid there is no format or document
other than the Consortium MoU to declare the financial
aspect of the work to be performed by the Consortium.
Accordingly, the activities specified by Member 1 and
Member 2 are of financial in nature and corresponds
to the financial investment to be undertaken and
corresponding receipt of remuneration from
Consortium. In view of the above Member 1 and
Member 2 are ought to be evaluated against the
financial aspect only and Member 3 ought to be
evaluated against technical and financial aspect .”
This response is crucial as it demonstrates that the Petitioner’s
interpretation is not borne out from the terms of the Tender.
Respondent No.1 has prescribed a specific standard that a member
undertaking a particular activity must itself have undertaken that
activity. The interpretation adopted by Respondent No.1 does not
introduce an additional eligibility requirement, nor does it amount
to an arbitrary reading of the Tender. We consequently find no
perversity or irrationality in the view taken by Respondent No.1.
27. This is also an area in which a Writ Court cannot
interfere. The tender has been framed by Respondent No.1 for a
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technically specialised offshore oil and gas project. Respondent
No.1 is best placed to assess the technical significance of the
experience requirements. This law is well settled as held by the
Hon’ble Supreme Court in several judgments including N.G.
6
Projects Ltd. v. Vinod Kumar Jain , Afcons Infrastructure Ltd. v.
7
Nagpur Metro Rail Corpn. Ltd. , and Association of Registration
8
Plates v. Union of India . This is a commercial contract and the
writ Court is not sitting as an appellate authority. The afore-
mentioned judgments also reiterate that judicial review examines
the legality of the decision-making process and not whether another
interpretation could also have been adopted. We do not find that the
interpretation of Respondent No.1 is perverse, arbitrary, mala fide
or such that no reasonable authority could have adopted it. In N.G.
Projects , the Hon’ble Supreme Court has also emphasised the need
for restraint in matters of infrastructure projects while exercising its
jurisdiction under Article 226 of the Constitution of India. The
decision of Respondent No.1 thus falls within the permissible
bounds of contractual and technical evaluation. In the absence of
any demonstrated illegality, perversity, arbitrariness or mala fide
6 (2022) 6 SCC 127
7 (2016) 16 SCC 818
8
(2005) 1 SCC 679
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exercise of power, there is no occasion for interference under
Article 226 of the Constitution of India.
28. The decisions relied upon by the Petitioner do not alter
this conclusion. In New Horizons Limited , the Hon’ble Court was
considering whether the joint venture firm (New Horizons Limited)
which had submitted a bid, was eligible. The Joint Venture
company was established by Thomson Press (India) Limited (TPI),
Living Media (India) Limited (LMI), World Media Limited (WML)
and Integrated Information Pvt. Ltd. (IIPL). The issue considered
by the Hon’ble Supreme Court was whether experience of one of its
constituents or shareholder could be counted as the necessary
experience required by the tenderer. The Tender Evaluation
Committee had rejected the Joint Venture’s bid without reasons.
The facts therein pertained to an entirely different contractual
structure, ie. a joint venture which has a separate legal identity.
There were no clauses in the NIT therein which delineated the role
and scope of work inter se the constituents. In that context, the
Hon’ble Court set aside the rejection. The tender clauses involved
therein were substantially different. In the present case, the Tender
itself expressly requires individual Consortium members to possess
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experience corresponding to their respective activities. Likewise,
the judgment of a Co-ordinate Bench of this Court in Atasha
Ashirwad does not assist the Petitioner since there is no question
here of reducing experience in proportion to investment or profit
sharing. The tender in the present case itself establishes the nexus
between the activity undertaken and the experience required.
III. The subsequent attempt by the Petitioner to modify the
MoU and re-allocate the work inter se cannot be permitted.
29. The Petitioner cannot contend that the allocation of
activities in the MoU was irrelevant for purposes of technical
eligibility and simultaneously, seek permission to alter that very
allocation when it became apparent that the existing allocation did
not satisfy the tender requirements. The two positions are mutually
inconsistent. Before the IEM, the Petitioner sought permission to
modify the roles and responsibilities of the Consortium members
set out in the MoU so as to align them with Respondent No.1’s
requirements.
30. Clause 7.14(j) of the ITB provides that no alteration or
modification in the constituents or composition of a Consortium
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shall be permitted after submission of the bid. It also provides that a
constituent shall be allowed to undertake only that activity for
which it has been evaluated and technically qualified. The
prohibition is not merely procedural. It is an essential term of the
Tender. In any case, the Petitioner’s request for re-allocation of
work under the MoU is not a clarification of an existing bid. It
would alter the substance of the bid. Such a change is barred under
Clause 7.14(j) of the Tender.
31. The judgment of the Hon'ble Supreme Court in
Prakash Asphaltings makes it clear that a power to seek
clarification cannot be enlarged into a power to permit rectification
or modification where the tender conditions prohibit such
modification. The relevant portion of the said judgment is extracted:
“34. ……………… Clause 5-B(v) says that during the
process of evaluation of bids, the notice inviting
authority may summon and seek
clarification/information on additional supporting
documents or original hard copies against any of the
documents which are already submitted/uploaded on
the web portal. In the event, these are not produced by
the intending bidders within the stipulated time frame,
their proposals will be liable for rejection.
35. The Division Bench of the High Court has interpreted
this clause in a broad way to include rectification of
bona fide mistakes in quoting BOQ rates by the
bidders. In our view, this will be stretching things a bit
too far. This provision is meant to empower the notice
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inviting authority to seek clarification or further
information regarding any document filed by a bidder.
This cannot be interpreted so broadly as to include
rectification of the BOQ rates which is governed by
Clause 4(g) of the notice inviting electronic bid putting
a complete embargo to any change in the template of
BOQ; the prohibition is specific: change in the
template of BOQ will not be accepted under any
circumstances.
…………………………………
46. Applying the above legal principles to the facts of the
present case, we are of the view that the Division
Bench of the High Court clearly fell in error in
directing Respondents 2 to 4 to allow rectification of
the financial bid of Respondent 1 by treating the
amount offered by it as the per day figure and on that
basis to compute the total amount for the entire
contractual period of 1095 days. Such an exercise is
clearly impermissible, having regard to the terms and
conditions of the contract which are required to be
understood on the anvil of this Court’s
judgments……………
49. The expression “public interest” in the arena of
commercial transactions cannot and should not be
confined to any straitjacket definition. While benefit or
accrual of more revenue to the public exchequer is
certainly an important aspect, equally important, if not
more, is adherence to the rules and conditions of
tender; sanctity of the tender process being paramount
and should be maintained at all costs.”
32. The Petitioner's request that its financial bid be
accepted in a sealed cover cannot be accepted. Once the technical
bid of the Petitioner is rejected on account of failure to satisfy an
essential technical eligibility condition, its financial bid becomes
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irrelevant. Clause 31.0 contemplates consideration of the financial
bid only of a bidder whose bid is in full conformity with the Tender
conditions. The confidentiality of the financial bid of Respondent
No.2 also militates against the course suggested by the Petitioner.
The Court cannot re-write the terms of the Tender merely because
the Petitioner submits that its price may be more competitive.
CONCLUSION
33. On an overall consideration of the matter, we find that
the interpretation adopted by Respondent No.1 is consistent with
the language of Clauses of Tender and cannot be said to be perverse
or irrational. Hence, Writ Petition (Lodging) No.29675 of 2026 is
dismissed . Rule is discharged.
[ GAUTAM A. ANKHAD, J. ] [ ACTING CHIEF JUSTICE ]
Digitally
signed by
SNEHA
ABHAY DIXIT
Date:
2026.09.07
12:12:23
+0530
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ABHAY
DIXIT
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