Summary
A bidder relying on the past experience of a previous joint venture was wrongly disqualified for not filing the JV agreement, because Clause 5(D) of the NIT did not expressly require it and the work execution certificate it did file stated its 45% share. The Supreme Court set aside the disqualification but, finding that the High Court had impermissibly gone beyond the Tender Committee's reasons to hold the bidder disqualified under Clause 5(B) (spare washery capacity) on a point raised only in written submissions, remanded that question to the High Court.
Issues
- Whether Clause 5(D) of the NIT, which allows a bidder to use the past experience of a previous consortium or JV proportionate to its share, impliedly mandated submission of the JV agreement itself, so that non-submission justified rejection of the technical bid as incomplete under Clause 8.1.
- Whether the tendering authority, instead of rejecting the bid, could and should have sought clarification or additional documents under Clause 8.8 of the NIT regarding the bidder's proportionate share disclosed in the work execution certificate.
- Whether the appellant acted mala fide or with unclean hands by not filing the JV agreement and later producing it.
- Whether the High Court could disqualify the appellant under Clause 5(B) of the NIT (own washery with spare capacity) on a ground not adverted to by the Tender Evaluation Committee and raised for the first time in the successful bidder's written submissions.
Held
- Clause 5(D) of the NIT only permits a bidder to use the past experience of a previous consortium or JV in proportion to its share as defined in the consortium agreement; it does not mandate submission of the JV agreement itself. A work execution certificate from the customer stating the bidder's 45% share and the similar work executed satisfied the clause, so non-submission of the JV agreement was not a ground to reject the bid as incomplete under Clause 8.1. (¶¶ 15, 16, 19, 20)
- Conditions in a NIT must be clear and unambiguous. If the tendering authority insisted on the JV agreement alone as proof of proportionate share, it should have said so in the NIT; having not done so, it cannot shift onto the bidder the responsibility to seek clarification and furnish such a document. (¶ 19)
- Although Clause 8.1 and the Government circular of 29.11.2023 bar reliance on documents furnished after bid submission, nothing prevented the authority from seeking clarification about the share disclosed in the certificate; Clause 8.8, a non-obstante clause, reserved its right to seek additional information on eligibility, and it failed to exercise that discretion. The JV agreement, when produced before the Court, endorsed the certificate. (¶ 19)
- The plea of suppression and unclean hands was rejected: the clause did not require the JV agreement, the bidder was never asked for it, and the proportionate share reflected in every version of the agreement produced was consistent with the certificate. A pending civil dispute between the consortium partners had no bearing on the bidder's share or the work executed. (¶ 19)
- The High Court erred in travelling beyond the reasons given by the Tender Evaluation Committee to hold the appellant disqualified under Clause 5(B) on the basis of JV agreement clauses raised for the first time in written submissions, without giving the appellant an opportunity to controvert a contentious issue. (¶¶ 22, 23, 24)
Result
Appeal partly allowed; High Court judgment dated 06.01.2025 set aside; rejection of the appellant's bid under Clause 5(D) of the NIT set aside; matter remanded to the High Court to decide afresh, preferably within two months, whether the appellant had the requisite spare washing capacity under Clause 5(B) and the validity of the work order in favour of the second respondent in light of that decision.