Dismissing the RAL appeal challenging the HC order, a bench of Justices Arijit Pasayat and S H Kapadia found that the Government decision was in keeping with the “larger public interest.”

The court referred to the situation where GMR had emerged as the only valid tenderer for both projects and said this “left no option with the Empowered Group of Ministers (EGOM) but to either vary the Request For Proposal (RFP) or to award one of the airports to GMR and to cancel the process for the second or cancel the entire process. The latter course would not have been in larger public interest. Therefore, the EGOM exercised its option. In the final analysis, what the EGOM had done is to accept the report of the Expert Committee subject to validation done by the Group of Eminent Technical Experts (GETE).”

Writing for the bench, Justice Pasayat also rebutted RAL’s arguments against GETE saying its constitution did not suffer from any infirmity. The two-member GETE, made up of Metro man E M Sreedharan and R Sivadasan of Indian Railways, was given shape by the Committee of Secretaries — which in turn was constituted by the EGOM — to recommend to the Committee on the overall validation of the evaluation process.

RAL had challenged GETE’s constitution as illegal and unauthorised and claimed that the EGOM should have accepted only the recommendations of the Evaluation Committee (EC) and should not have asked GETE to make a further examination. The EC was set up to review the evaluation of the bids carried out by a team comprising the Global Technical Adviser and Legal and Financial Consultants.

Rejecting the argument, the Apex Court held that emergence of different views would only make the process more transparent. “GETE’s examination was restricted to see whether alignment with RFP was correctly done... GETE has gone by objective standards. The criterion adopted by GETE appears to be more rational. It proceeded with the idea that more objectivity was necessary.” The court also expressed severe displeasure over the letters written by RAL to the EGOM, Government and Airport Authority of India at various stages of the bidding process.

Citing these letters, the Government charged RAL with violating norms forbidding any contact with the authorities connected with the decision making process. RAL, in its defence, had said that it wrote the letters on the basis of information culled from newspaper reports. But the court did not agree. Observing that there was a “breach”, it said “though there is no penal clause for such breach, it goes against a very concept of fairness in the process and evaluation of bids. Whatever documents are to be submitted are clearly stipulated. Any attempt to take advantage of any newspaper report, clearly falls foul of the mandate that there shall not be any contact with any person involved in the process of selection. It is unusual that the RFP did not make such a contract as a factor for disqualification.” The SC advised the Government to keep this in view in future tenders.

Meanwhile, in a separate but concurring judgement, Justice S H Kapadia slammed the EC’s handling of the matter. Explaining how the EC had “changed” some of the factors whose identification went into the scoring given to the bidders, Kapdia wrote: “In my view, the Evaluation Committee had no business to expand or narrow down the scope of any of the above factors as it was beyond its authority and contrary to the scoring system.” He was of the opinion that as a result of this, objectivity was completely lost. The HC had in April this year upheld the grant of the contracts for modernisation of the Delhi and Mumbai airports to GVK-Frapport and GVK South Africa respectively.