Tender — Bid Disqualification — Clause 5(D), NIT (Past Experience Criteria) — Whether non-furnishing of JV agreement warranted rejection of bid.
Clause 5(D) allowed bidders to rely on past experience of a consortium/JV proportionate to their share, provided the share was defined in the JV agreement. Appellant submitted a work execution certificate from MSMC showing it had a 45% share in Hind Maha Mineral LLP and executed similar works. Tender Evaluation Committee rejected the bid for non-furnishing of the JV agreement. High Court upheld disqualification and further held that appellant would anyway be ineligible under Clause 5(B) (washery capacity committed to MSMC).
Held (Supreme Court):
-
Clause 5(D) did not expressly mandate submission of the JV agreement; submission of the MSMC certificate showing appellant’s share sufficed.
-
NIT conditions must be clear and unambiguous; if production of JV agreement was mandatory, it should have been explicitly provided.
-
Respondent authority could have verified or called for JV agreement under Clause 8.8 (power to seek additional information).
-
Appellant did not act with mala fide intention; suppression not established.
-
High Court erred in going beyond the Committee’s reasons by invoking Clause 5(B) on washery capacity; this was raised for the first time in written submissions of 2nd respondent.
-
Issue of washery capacity is contentious and must be reconsidered by High Court.
Result:
Impugned judgment set aside. Disqualification under Clause 5(D) quashed. Matter remanded to High Court to decide afresh on Clause 5(B) (spare washery capacity) and validity of work order awarded to 2nd respondent. Appeal partly allowed.
2025 INSC 1085
Page 1 of 19
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. of 2025
(Arising out of SLP (C) No.1940/2025)
Maha Mineral Mining & Benefication
Pvt. Ltd. … Appellant (s)
Versus
Madhya Pradesh Power Generating
Co. Ltd. & Anr. … Respondent(s)
J U D G M E N T
1. Leave granted.
Factual Matrix
2. In response to Notice Inviting Tender1 dated 17.05.2024, issued
by the 1st respondent for the purpose of run-of-mine (ROM) coal
beneficiation and managing logistics from Western Coalfields
Ltd.2 (Nagpur area) sources for Shree Singaji Thermal Power
Project, Khandwa (Madhya Pradesh), the appellant and two
1 ID 2024_MPPGC_341576_1, hereinafter referred to as “NIT”.
2 Hereinafter “WCL”.
Page 2 of 19
others, namely the 2nd respondent3 and one M/s NN Global
Mercantile Pvt. Ltd. had submitted their bid.
3. As NN Global Mercantile Pvt. Ltd. could not furnish earnest
money deposit, only the appellant and the 2nd respondent
remained in the fray. On 04.07.2024, the Tender Evaluation
Committee4 while referring to Clause 5(D)5 of the NIT rejected
the appellant’s technical bid holding as follows –
“As per Clause No. 5(D) “Past experience criteria” of NIT,
bidder is allowed to use past experience of their previous
Consortium or JV (proportionate to its share in that
consortium if defined in the Consortium Agreement,
3 Rukhmai Infrastructure Pvt. Ltd.
4 Hereinafter referred to as “The Committee”.
5 Clause 5(D): “Past Experience: Copies of successfully executed orders (including part
executed) in the name of bidder for same or similar work {similar work means coal lifting
from mines of CIL subsidiaries or SCCL area, coal beneficiation (through wet process),
movement of washed coal by road from washery to railway siding and movement of
washed coal through Railways with experience in liaisoning with Railways/ CIL
subsidiaries or SCCL area, i.e., arranging rakes, dispatches coal from own or leased
Private siding or Goods shed Railways siding by loading of washed coal into railway
wagons through own arrangement with monitoring the rake movement etc. up to the
destination Power house}. Bidder is allowed to use past experience of their previous
Consortium or JV (proportionate to its share in that consortium if defined in the
Consortium Agreement, otherwise, lead partner if not defined in the Consortium)
to meet out the past experience criteria of the tender. The order copies should
indicate the above w/ork for 4 Lakh MT (4,00,000 MT) quantity or more in stale Owned
Power Generating Companies or Other Captive Power Utilities of PSU or NTPC or Govt.
Industries / Departments or Semi Govt. Industries / Departments or PSUs or Nodal
Agency of any PSUs in India executed in last five years ending with initial date of opening
of bid are to be uploaded. This order execution should be within a period of twelve (12)
months. It may be through single or multiple orders (in parallel), but in case of multiple
orders; these should be within a single span of time period of twelve (12) months.
1. The work execution certificate by the customers along-with self-attested
un-priced copies of aforesaid work order(s) should be submitted.
2. For Past performance certificates - If worked with MPEB/ MPSEB/ MPPGCL in past
for similar work, then it is mandatory to provide Satisfactory Performance Certificate for
the same. Failing this, the offer shall not be considered.” (emphasis supplied)
Page 3 of 19
otherwise, lead partner if not defined in the Consortium)
to meet out the past experience criteria of the tender.
The firm has used the credentials of their consortium M/s
Hind-Maha-Mineral LLP for meeting out the past
experience criteria. However, Agreement of the
Consortium/JV is not submitted to substantiate the share
of the bidder in that consortium. Bidder is disqualified
due to non-submission of credentials as per Clause No.
(5)D of the NIT.”
4. Appellant challenged the decision of the Committee before the
High Court of Madhya Pradesh.
6 Appellant contended neither
Clause 5(D) nor any terms of the NIT expressly required a bidder
who was relying on past-experience of a previous consortium or
joint venture7 to produce the JV agreement itself to demonstrate
its proportionate share in the consortium. In terms of Clause
5(D) it had submitted a work execution certificate from
Maharashtra State Mining Corporation8 which inter alia stated
that the appellant was 45% Joint Venture/Consortium Partner
of M/s. Hind Maha Mineral LLP vide the JV agreement dated
02.12.2019 and had executed similar work in respect of WCL
command for the period 05.03.2021 to 05.03.2024. It was
6 Writ Petition No. 18286/2024.
7 Hereinafter referred to as “JV”.
8 Hereinafter referred to as “MSMC”.
Page 4 of 19
further clarified the JV agreement had been submitted before
MSMC.
5. In case of doubt, 1st respondent could have verified the
correctness of the certificate from MSMC or called upon the
appellant to furnish the JV agreement. On the contrary, the 1st
respondent arbitrarily rejected the technical bid on the ground
the JV agreement had not been furnished.
6. 1st respondent contradicted such stance and contended in the
event any bidder was seeking to rely on past-experience of a
previous consortium/JV, submission of the JV agreement was
implicit in Clause 5(D) of the NIT. Further, Clause 8.1 provided
that if the bidder did not submit the desired documents as per
NIT at the time of submission of the bid, he shall not be allowed
to submit documents subsequently and its bid is liable to be
rejected on account of incomplete documents. Clause 8.1 of the
NIT unequivocally states that –
“Instructions regarding shortfall documents:-
(i) The bidders not submitting all the desired
documents as per NIT/Tender Document at the
time of submitting bids, shall not be allowed to
submit documents subsequently and their bids
shall be rejected on account of incomplete
documents. Thus, no "shortfall window" for
Page 5 of 19
submission of shortfall documents shall be
created by MPPGCL in the e-tender.
(ii) Accordingly, Clause No. 1.15 (VII) "Verification of
credentials/PQR" of the Standard Bid Document (SBD)
so far as it relates to "Shortfall of document" window
shall not be applicable.
(iii)Any condition elsewhere mentioned in the
NIT/Tender Document for submission of Shortfall
Document shall not be applicable.
(iv) However, techno-commercial clarifications (if
required) shall be obtained through e-mail/physical
form from the bidders” (emphasis supplied)
The said clause is further fortified by circular no. F3/25/2015/13/109 issued by the Government of Madhya
Pradesh on 29.11.2023.
7. Appellant was fully aware of the requirement to furnish the JV
agreement to demonstrate its proportionate share in the
consortium in order to rely on the past-experience of such
previous consortium/JV. In fact after the closing date, by email
dated 05.07.2024, the appellant purportedly submitted a JV
9 Circular dated 29.11.2023: “It has come to the notice of the department that bidders are
being allowed to participate in the bid process with incomplete documents. Bidders are
allowed to submit the balance documents in due course of time and meanwhile some of
the bidders back out of the bidding process, allowing a few number of bidders to
participate in the bidding process and quote non-competitive rates which results in
financial loss to the Power Companies. It has therefore been decided that bidders not
submitting all the desired documents as per NIT/Tender document at the time of
submitting bids, should not be allowed to submit documents subsequently and
their bids should be rejected on account of incomplete documents. If required, even
fresh bid can be called to get competitive rates.
As directed, it is request to please ensure the bidding process to make it more transparent
and fair.” (emphasis supplied)
Page 6 of 19
agreement dated 06.09.2019, which however did not
correspond to the JV agreement dated 02.12.2019 referred to in
the certificate issued by the MSMC. Be that as it may, such
subsequent submission of document was impermissible as per
Clause 8.1 of the NIT read with circular dated 29.11.2023 and
the technical bid was rightly rejected for submission of
incomplete document.
8. During the pendency of the writ petition, 2nd respondent was
declared as the successful bidder and was impleaded in the
proceedings. During hearing, the JV agreement dated
02.12.2019 was placed on record. Written submissions were
also submitted on behalf of the parties.
Findings of the High Court
9. By the impugned judgement and order, the High Court upheld
the decision of the Committee holding as follows:-
“22. Due to non-filing of Joint Venture agreement by the
Petitioner, the Impugned Order rejecting the bid of the
petitioner has to be seen wherein at the outset it has been
stated that your bid for the above tender has been
rejected during Technical evaluation by the duly
constituted committee for the reason Bidder is
disqualified due to non submission of credentials as per
Clause No. (5)D of the NIT.” It is evident that the Petitioner
has not filed the Joint Venture agreement. The Petitioner
is disqualified for the reason of non compliance with the
Page 7 of 19
requirements in terms of Clause (5)D. The reason is also
assigned by the Respondent No.1 in their reply as to why
the petitioner was disqualified. If the petitioner is relying
on the Joint Venture Agreement dated 02.12.2019 then it
was the duty of Petitioner to file the same while
submitting the bid. The NIT condition no. (8)1(i) and
(8)(1)(iii), specifically prohibit the submission of the
document/shortfall document at a later stage. As per the
NIT conditions, a bidder is supposed to upload all the
requisite documents at the time of submission of the bid.
It is evident that the earlier practice of allowing bidders to
fulfil the shortfall in documents left a scope for unfair
practices in the bidding process and therefore, the said
practice of allowing documents at a later stage has been
discontinued in view of the past experience, as is evident
from the letter 29.11.2023 of the GoMP, Energy
Department. The Petitioner in the present case relied
on the experience certificate issued by the
Maharashtra State Mining Corporation dated
14.06.2024 wherein date of the Joint Venture
agreement is mentioned as 02.12.2019. However,
surprisingly the Petitioner neither filed the said
document of JV on record at the time of submission
of bid nor at the time of filing of the petition. Even
the document of JV agreement, which the Petitioner
has filed along with the Email sent to Respondent
No.1, is dated September, 2019 and not
02.12.2019. The Petitioner has not filed the said JV
Agreement from its own. It is apparent that there is
a suppression of the JV Agreement dated
02.12.2019 by the Petitioner and hence, on this
count of concealment of JV agreement dated
02.12.2019 the instant petition fails. The Petitioner
has not given any satisfactory response in the petition or
even otherwise for not submitting the document in
alternate. Thus, the Petitioner cannot put forward its
claim before demonstrating its bonafides that could have
been done by duly submitting all the documents and by
not engaging in active suppression and
concealment…….” (emphasis supplied)
Page 8 of 19
10. Thereafter, referring to the written submissions made by the 2nd
respondent in light of Clauses 3.12, 3.13 and 8.5 of the JV
agreement, the Bench further held:-
“24. The additional submissions of the Respondent No.2
have force and it is evident that in any case, even if the
above-mentioned documents were provided by the
Petitioner would have been disqualified as its
washeries had been committed to Maharashtra
State Mining Corporation Ltd. alone in terms with
the Joint Venture Agreement dated 02.12.2019.
Even the experience Certificate issued by Maharashtra
State Mining Corporation Ltd. to the Petitioner
categorically mentions the Joint Venture Agreement dated
02.12.2019.” (emphasis supplied)
11. In view of the aforesaid findings, the Division Bench dismissed
the writ petition, giving rise to the present appeal.
12. Heard Mr. Narender Hooda, learned senior counsel for the
appellant, Mr. Bijender Chahar, learned senior counsel for 1st
respondent, and Mr. Shyam Divan and Mr. Balbir Singh,
learned senior counsel for 2nd respondent.
Analysis
13. It appears the High Court had not only upheld the
disqualification of the appellant by the Tender Evaluation
Committee for non-compliance of Clause 5(D) of the NIT but also
went a step further and held, even if the JV agreement had been
Page 9 of 19
submitted, the appellant would have stood disqualified since its
washeries had been exclusively committed to MSMC.
(I) Appellant’s disqualification under Clause 5(D) of the NIT
14. First, let us consider whether the decision of the High Court to
uphold the appellant’s disqualification under Clause 5(D) for
not furnishing JV agreement is justified or not?
15. Clause 5(D) of the NIT required the bidders to furnish
documents relating to past-experience in similar work. The
clause further provided that “bidder is allowed to use past
experience of their previous Consortium or JV (proportionate to its
share in that consortium if defined in the Consortium Agreement,
otherwise, lead partner if not defined in the Consortium) to meet
out the past experience criteria of the tender.” Sub-clause 1 and
2 of the said clause stated the following documents are to be
submitted:-
“1. The work execution certificate by the customers
along-with self-attested un-priced copies of aforesaid
work order(s) should be submitted.
2. For Past performance certificates - If worked with
MPEB/ MPSEB/ MPPGCL in past for similar work, then it
is mandatory to provide Satisfactory Performance
Certificate for the same. Failing this, the offer shall not be
considered.” (emphasis supplied)
Page 10 of 19
Appellants had submitted a work execution certificate from
MSMC along with its bid to support its past-experience as a 45%
proportionate member of a consortium/JV for similar work
executed at WCL in the last five years. The relevant portion of
the certificate reads as follows:-
“……this is to certify that as part of the aforementioned
contract agreement, M/s Maha Mineral Mining &
Beneficiation Private Limited being the 45% Joint
Venture/Consortium Partner of M/s. Hind Maha
Mineral LLP vide the JV agreement dated
02.12.2019 (submitted to this office by M/s Hind Maha
Mineral LLP) has executed the said work in respect of
WCL command for the period 05.03.2021 to 05.03.2024.
The details are as follows:
a. Quantity of RoM Coal Lifted: 1,41,55,130.40 MT
b. Quantity of RoM coal washed: 1,17,95,440.46 MT
c. Quantity of washed coal supplied to Mahagenco
TPSs: 1,17,47,501.99 MT
d. Approximate value of the work executed: Rs. 465
crores.” (emphasis supplied)
16. The aforesaid certificate clearly demonstrates that the appellant
had 45% share in a JV consortium namely M/s Hind Maha
Mineral LLP and had successfully executed work of similar
nature as required by Clause 5(D) of the NIT.
17. The Committee refused to rely on such certificate holding as
follows :-
“(v) As per tender condition no documents other than
Consortium/JV Agreement can be permitted to meet out
Page 11 of 19
the above criteria as per the NIT. Thus, the certificate
submitted by M/s Maha Mineral Mining and Benefication
Private Limited cannot be considered as valid document
for the same.”
18. Though the submission of a JV agreement has not been
expressly stated in the aforesaid clause, the respondents argue
that the proportionate share of a bidder in a consortium/JV can
only be established through production of the JV agreement
itself and the words used in the contract/tender document
must be read in a purposive manner so that no part of the
document is rendered superfluous. Respondents further
contend appellant had submitted its bid on the last day and it
was open to the appellant during the previous calls to seek
clarification whether submission of JV agreement was
mandatory. Appellant did not do so and intentionally
suppressed the JV agreement while submitting its bid to avoid
disclosure of inconvenient clauses in the JV agreement. This is
evident from the appellant’s conduct as it had after submission
of bid, emailed a purported JV agreement dated 06.09.2019,
whereas the JV agreement mentioned in the certificate was a
different one. Be that as it may, the subsequent submission of
Page 12 of 19
a JV agreement could not have been considered in light of
Clause 8.1 read with circular dated 29.11.2023.
19. We are unable to accept such arguments for the following
reasons:-
(i) Clause 5(D) merely states the appellant would be entitled
to use the past-experience of a previous consortium/JV in
the event its proportionate share is defined in the JV
agreement failing which the past-experience shall be
attributed to the lead partner. The clause does not
mandate the submission of the JV agreement itself to
satisfy such criteria. Appellant had relied on the work
execution certificate issued by MSMC which in no
uncertain terms states the appellant had 45% share in the
JV consortium named M/s Hind Maha Mineral LLP and
successfully executed similar work of a volume larger than
required under the clause. The certificate also mentioned
the JV agreement had been submitted and was in the
custody of MSMC.
(ii) It is nobody’s case that the 1st respondent had doubted the
authenticity of the certificate but had disqualified the
Page 13 of 19
appellant on the ground that Clause 5(D) mandated
furnishing of the JV agreement alone and nothing else to
prove proportionate share in a previous JV in order to use
such experience.
(iii) Conditions in a NIT must be clear and unambiguous. In
the event the tendering authority insisted on furnishing of
the JV agreement alone and no other document as proof of
the proportionate share of the bidder to avail previous JV
experience as prior qualification, it should have been spelt
out clearly in the NIT. Having not done so, the 1st
respondent cannot thrust the responsibility on the
appellant to seek clarification and submit such document.
As Clause 5(D) does not require submission of JV
agreement itself to establish proportionate share in the JV
whose past-experience the bidder is seeking to use, nonsubmission of such JV cannot be a ground to disqualify
the bidder for submission of incomplete documents in
terms of Clause 8.1 of NIT. Admittedly, the appellant had
submitted the work execution certificate, as required
under clause 5(D), which also unequivocally sets out its
Page 14 of 19
proportionate share in the JV agreement whose prior
experience it had relied on.
(iv) Though it is argued Clause 8.1 as well as circular dated
29.11.2023 put an embargo on 1st respondent to rely on
documents furnished after submission of bid, nothing
prevented 1st Respondent to seek clarification with regard
to the proportionate share of the appellant in the previous
JV as disclosed in the work execution certificate. It may be
apposite to note Clause 8.810 of the NIT, couched in a nonobstante clause, reserved the right of the 1st respondent to
seek additional information to satisfy itself with regard to
the eligibility of any bidder. 1st respondent failed to
exercise such discretion by fortifying itself through calling
for the JV agreement, which, when placed before this
Court, unequivocally endorsed the contents of the
certificate submitted by the Appellant.
10 Clause 8.8: “Notwithstanding anything stated above, MPPGCL reserves the right to
assess the creditability, capability and capacity to perform the contract. Should the
circumstances warrant such an assessment in its overall interest, bidder shall furnish
additional documents to substantiate its claim. MPPGCL also reserves the right to seek
such additional information as it may deem fit to satisfy itself of the eligibility
of the bidder.” (emphasis supplied)
Page 15 of 19
(v) The other argument advanced by the respondents is that
the appellant had acted with mala fide intention by
suppressing the JV agreement and subsequently
furnishing different versions of the said agreement at
various stages i.e., before the 1st Respondent, in the
Special Leave Petition and finally, by way of additional
documents respectively. This argument is unacceptable as
neither Clause 5(D) required submission of JV agreement
to prove proportionate share nor was the appellant called
upon to submit such document. Moreover, the
proportionate share of the appellant in the consortium as
reflected in all the documents, i.e., the JV agreement
submitted before the 1st Respondent, annexed to the SLP
and the agreement with additional documents, is the same
and consistent with the work execution certificate
submitted in the bid. For these reasons, we are not in
agreement with the argument that the appellant had
intentionally suppressed the JV agreement or had
approached the Court with unclean hands.
Page 16 of 19
(vi) Finally, submission of the 2nd Respondent regarding a
pending civil dispute between the consortium partners of
M/s Hind Maha Mineral LLP is also of little consequence.
Such dispute has no impact on the proportionate share of
the appellant in the JV agreement and the work executed
by the appellant as a part of the consortium for MSMC as
disclosed in the work execution certificate.
20. In these circumstances, we are inclined to hold the 1st respondent
acted contrary to the terms of the NIT and unfairly rejected the
appellant’s bid for non-production of JV agreement although
Clause 5(D) did not prescribe production of such agreement as
mandatory to rely on past-experience of such consortium in
which the bidder had a defined proportionate share.
21. Accordingly, decision of the Committee, upheld by the High
Court as per Clause 5(D) is liable to be set aside.
(II) Appellant’s disqualification under Clause 5(B) of the NIT
22. However, the High Court went a step further, traversing beyond
the reasons given by the Committee and held the Appellant
Page 17 of 19
would otherwise be disqualified under Clause 5(B) of the NIT.
Clause 5(B) reads as follows –
“Details of Washery:
Bidder should have its own Washery with wet
beneficiation technology either of Heavy Media Cyclone or
Heavy Media Bath or Wet Jig. The Bidder should have
a minimum spare washing capacity using wet
technology of 50% of annual tendered quantity, i.e.,
5 Lakh Metric Tonnes (LMT), in area nearby to mines
of WCL configured in the tender. Total distance from
mine(s) to offered washery (ies) and offered washery (ies)
to Railway siding shall not be more than 100 KM.”
(emphasis supplied)
23. To arrive at such a finding the High Court relied on written
arguments submitted by the 2nd respondent and held as per
Clauses 3.12, 3.13 and 8.5 of the JV agreement the appellant’s
washeries were committed to MSMC and could not have been
used for the present tender. Mr. Hooda rightly contends the
issue was raised for the first time in the written submissions
and his client did not get the opportunity to controvert the
same. Referring to a chart placed before us,
11 he vehemently
argues the appellant’s Gondegaon washery had a spare capacity
of 1.5 MMTPA12 which was much higher than the required spare
11 Annexure P-34 in the Appellant’s Rejoinder to the Counter Affidavit filed by the 2nd
Respondent.
12 Million Metric Tonnes Per Annum.
Page 18 of 19
capacity under Clause 5(B) of the NIT. He further contends a
request13 had been made to MSMC to shift their operation to
other washeries in terms of Clause 614 of the contract agreement
executed between MSMC and the consortium, and the
Gondegaon Washery was available for execution of the work
under the present NIT.
24. We are of the considered view the aforesaid issue is a
contentious one and ought not to have been decided by the High
Court without giving opportunity to the appellant to controvert
the same. High Court also lost sight of the fact that the
Committee had not adverted to this issue and it was
impermissible for it to travel beyond the reasons given by the
Committee and disqualify the appellant. It is also relevant to
note that allotment of work order to 2nd respondent has been
made subject to the outcome of this proceeding.
13 Letter dated 14.06.2024, annexed as P-36 in the Appellant’s Rejoinder to the Counter
Affidavit filed by the 2nd Respondent.
14 Clause 6: “ACCEPTED RATES:- Accepted Rates for beneficiation of raw coal as below
(exclusive of GST). If any change in washery/railway siding is request by
CONTRACTOR (LLP), then it should not put extra financial burden on MSMC……”
(emphasis supplied).
Page 19 of 19
25. For these reasons, we remand the matter for a fresh
consideration whether appellant had requisite spare washing
capacity as per Clause 5(B) of the NIT and the validity of the
work order in favour of the 2nd respondent in light of such
decision. The High Court shall decide the matter as
expeditiously as possible preferably within two months from the
date of communication of this order.
26. The impugned judgment and order of the High Court is set aside
and the appeal is partly allowed.
…………………………………………., J
(SURYA KANT)
…………………………………………, J
(JOYMALYA BAGCHI)
New Delhi,
September 09, 2025.
