Reversing its earlier position, Himachal Pradesh has informed the Supreme Court that it would give 960 Mw Jangi-Thopan and Thopan Powari power projects to Brakel Corporation and rejected the allegation of "unfairness" levelled by Anil Dhirubhai Ambani group (ADAG) firm Reliance Infrastructure.
In an affidavit filed before the apex court this week, the state government said that it would not cancel the allotment made in favour of the Netherlands-based Brakel Corp, which has business association with Adani Group, contrary to its earlier order in October 2009 cancelling the allotment and imposing penalty of Rs 280 crore for delay in the project.
The state government has also denied the allegations of the Anil Ambani group firm that there was unfairness, arbitrariness and illegality" while awarding the project to the Netherlands-based firm, the lowest bidder. ADAG firm was the second-lowest bidder for the two hydro projects coming up on the Sutlej river in Kinnaur district.
"All the allegations of unfairness, arbitrariness and illegality made against the state are baseless and deserved to be rejected straightway. All the decisions in the matter have been taken by the council of ministers and after considering the report of the committee of secretaries," said the state government in its 10-page affidavit.
"Even the committee after considering the relevant records has not come across any incriminating documents/information which may prima facie indicate the commission of any criminal act by Brakel," the state government further said over the allegation of ADAG firm that Brakel was a shoddy firm.
Over the allegations of receiving funds from the Adani group for the project, the state government said that there was nothing wrong in it.
"In so far as the allegation regarding receiving the funds from Adani group by way of loan is concerned, Brakel has disclosed the details to the state government immediately on enquiry. Borrowing of money by an allottee is not prohibited under the bid document.
"Brakel has clarified that they have not allotted or transferred any equity to Adani nor will its do so without the permission of the state government and it was found satisfactory," the state government said.
Earlier on October 22, 2009, following the orders of the Shimla High Court, the state government had cancelled the allotment to Brakel and imposed a penalty of Rs 280 crore for delaying the project.
Passing an order on October 7, 2009, on a petition filed by Reliance Infrastructure, the High Court had cancelled the allotment made by the state government in favour of Brakel.
However, the Shimla High Court had also refused to pass directions to the Himachal government to award the project to ADAG firm which was the second-lowest bidder. Instead, it gave freedom to the state government to either retendering the entire project or to go for the old bids.
In its affidavit, the state government further informed the apex court that as a matter of public policy it has decided not to cancel the Rs 8,000 crore (approx) tender. "The decision not to cancel the allotment of the project in favour of Brakel is in public interest and in the interest of the state," the state government said.
The state government further admitted that there was a delay by Barkel, in payment of premium of Rs 173 crore after successfully bidding for the project, but the firm had later had paid the amount on January 2008 along with the interest.
On its earlier decision of July 7, 2008, to issue show cause notice to Brakel and call for the fresh bidding for the project, the state government said that it was subject to the outcome of the probe done by the committee of secretaries.
"The cabinet had taken a decision on July 7, 2008, to issue show cause notice and call for fresh bidding for the projects but that was dependent on the result and status of the already allotted project and matter of cancellation of each of the project for such consideration of fresh allotment, and entirely to the result of the show cause notice decided to be issued to the present petitioners (Brakel)," said the state government.
Over ADAG firm's allegation, the state government further said that all the bidders were given a chance to clarify their position and place their documents in position by the Himachal Pradesh State Electricity Board, the executing agency.
It further said, "In fact Reliance had bid as consortium. However, details of the consortium were not mentioned but when the clarifications were sought, Reliance desired to bid as individual entity and not as consortium, thus changing the entire basis of the bid".
The state government further said that the decision by the council of ministers was taken as per the evaluations done the Himachal Pradesh Infrastructure Development Board (HPIDB), where all qualified bidders including ADAG firm had presented their case.
"Neither Reliance nor any other pre-qualified bidder raised any objection to the evaluation process of any other pre-qualified bidders. No essential fundamental condition was changed," the state government said adding that the bid of ADAG firm was Rs 100 crore higher than Brakel's.
The affidavit was filed by the state government after the Supreme Court issued notice to it in May 2010 clarifying its position.
The apex court's direction has come after High Court's order was challenged by Brakel and ADAG firm before the Supreme Court. In their petitions, Brakel had challenged the entire order of the High Court, where the ADAG firm challenged the options granted to the state government between inviting fresh bids or go with older bid.
