THE STATE OF MADHYA PRADESH AND ANOTHER Vs. U.P. STATE BRIDGE CORPORATION LIMITED AND ANOTHER
LAWS(SC)-2020-12-18
SUPREME COURT OF INDIA
Decided on December 08,2020

The State Of Madhya Pradesh And Another Appellant
VERSUS
U.P. State Bridge Corporation Limited And Another Respondents





Cited Judgements :-

A. G. CONSTRUCTION CO VS. FOOD CORPORATION OF INDIA [LAWS(P&H)-2021-2-16] [REFERRED TO]
B. SRINIVAS VS. ANDHRA PRADESH STATE CIVIL SUPPLIES CORPORATION LIMITED [LAWS(APH)-2021-3-132] [REFERRED TO]


JUDGEMENT

R.F.NARIMAN, J. - (1.)Leave granted.
(2.)These appeals pertain to a notice inviting tender ["N.I.T."] dated 02.12.2019 by the State of Madhya Pradesh, Public Works Department ["PWD"]. The N.I.T. was for the construction of an Elevated Corridor (Flyover) from LIG Square to Navlakha Square (Old NH 3) A-B Road in Indore district in the State of Madhya Pradesh of a length of 7.473 kilometers. The work was for an estimated cost of Rs. 272.66 crores, to be completed within a period of 24 months including the rainy season. Various parts of the N.I.T. are important and are referred to hereunder:
(3.)Under Section - 2, entitled "INSTRUCTIONS TO BIDDERS", under clause A, entitled "GENERAL", sub-clause 2.1.4 reads as follows:
"2.1.4 The BID shall be furnished in the format exactly as per Appendix-I i.e. Technical Bid as per Appendix IA and Financial Bid as per Appendix IB. BID amount shall be indicated clearly in both figures and words, in Indian Rupees in prescribed format of Financial Bid and it will be signed by the Bidder's authorised signatory. In the event of any difference between figures and words, the amount indicated in words shall be taken into account."

Clause 2.2.2.2(ii) reads as follows:

"2.2.2.2 Technical Capacity

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(ii) For normal Highway projects (including Major Bridges/ ROB/ Flyovers/Tunnels):

Provided that at least one similar work of 25% of Estimated Project Cost Rs. 68.17 Crores (Rs. Sixty Eight Crores Seventeen Lakhs only) shall have been completed from the Eligible Projects in Category 1 and/or Category 3 specified in Clause 2.2.2.5. For this purpose, a project shall be considered to be completed, if more than 90% of the value of work has been completed and such completed value of work is equal to or more than 25% of the estimated project cost. If any Major Bridge/ROB/Flyover/Tunnel is (are) part of the project, then the sole Bidder or in case the Bidder being a Joint Venture, any member of Joint Venture shall necessarily demonstrate additional experience in construction of Major Bridge/ROBs/Flyovers/Tunnel in the last 5 (Five) financial years preceding the Bid Due Date i.e. shall have completed at least one similar Major Bridge/ROB/Flyover having span equal to or greater than 50% of the longest span of the structure proposed in this project and in case of tunnel, if any, shall have completed construction of at least one tunnel consisting of single or twin tubes (including tunnel(s) for roads/ Railway/ Metro rail/ irrigation/ hydroelectric projects etc.) having at least 50% of the cross-sectional area and 25 length of the tunnel to be constructed in this project."

Clause 2.2.2.5 states as follows:

"2.2.2.5 Categories and factors for evaluation of Technical Capacity:

(i) Subject to the provisions of Clause 2.2.2 the following categories of experience would qualify as Technical Capacity and eligible experience (the "Eligible Experience") in relation to eligible projects as stipulated in Clauses 2.2.2.6(i) and (ii) (the "Eligible Projects"). In case the Bidder has experience across different categories, the experience for each category would be computed as per weight of following factors to arrive at its aggregated Eligible Experience:

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(ii) The Technical capacity in respect of an Eligible Project situated in a developed country which is a member of OECD shall be further multiplied by a factor of 0.5 (zero point five) and the product thereof shall be the Experience Score for such Eligible Project."

Under clause 2.6.2(a), the authorities reserved the right to reject any bid, inter alia, on the following grounds:

"2.6.2 The Authority reserves the right to reject any BID and appropriate the BID Security if:

(a) at any time, a material misrepresentation is made or uncovered, or..."

Under Section - 3, entitled "EVALUATION OF TECHNICAL BIDS AND OPENING and EVALUATION OF FINANCIAL BIDS", clauses 3.1.6.1 and 3.1.6.2 state as follows:

"3.1.6. Tests of responsiveness

3.1.6.1 As a first step towards evaluation of Technical BIDs, the Authority shall determine whether each Technical BID is responsive to the requirements of this RFP. Technical BID shall be considered responsive only if:

(a) Technical BID is received online as per the format at Appendix-IA including Annexure I, IV, V and VI (Bid Capacity format);

(b) Documents listed at clause 2.11.2 are received physically on CPPP as mentioned;

(c) Technical Bid is accompanied by the BID Security as specified in Clause 1.2.4 and 2.20;

(d) The Power of Attorney is uploaded on e-procurement portal as specified in Clauses 2.1.5;

(e) Technical Bid is accompanied by Power of Attorney for Lead Member of Joint Venture and the Joint Bidding Agreement as specified in Clause 2.1.6, if so required;(f) Technical Bid contains all the information (complete in all respects);

(g)Technical Bid does not contain any condition or qualification; and

(h) Copy of online receipt towards payment of cost of Bid document of Rs 30,000.00 (Rupees Thirty thousand only) in favor of Chief Engineer PWD Bridge Const. Zone Bhopal is Received;

3.1.6.2 The Authority reserves the right to reject any Technical BID which is non-responsive and no request for alteration, modification, substitution or withdrawal shall be entertained by the Authority in respect of such BID."

Under Section - 4, entitled "FRAUD AND CORRUPT PRACTICES", clause 4.1 read with the definition clause contained in clause 4.3(b), read as follows:

"4.1 The Bidders and their respective officers, employees, agents and advisers shall observe the highest standard of ethics during the Bidding Process and subsequent to the issue of the LOA and during the subsistence of the Agreement. Notwithstanding anything to the contrary contained herein, or in the LOA or the Agreement, the Authority may reject a BID, withdraw the LOA, or terminate the Agreement, as the case may be, without being liable in any manner whatsoever to the Bidder, if it determines that the Bidder, directly or indirectly or through an agent, engaged in corrupt practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice in the Bidding Process. In such an event, the Authority shall be entitled to forfeit and appropriate the BID Security or Performance Security, as the case may be, as Damages, without prejudice to any other right or remedy that may be available to the Authority under the Bidding Documents and/ or the Agreement, or otherwise."

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"4.3 For the purpose of this Section 4, the following terms shall have the meaning hereinafter respectively assigned to them:

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(b) "fraudulent practice" means a misrepresentation or omission of facts or suppression of facts or disclosure of incomplete facts, in order to influence the Bidding Process"

Appendix IA consists of the letter comprising the technical bid addressed to the Office of the Chief Engineer, Bridge Construction Zone - Bhopal, which has to be filled up in a particular format. Paragraphs 11 and 13 of this letter are important and are set out hereinbelow:

"11. I/We certify that in regard to matters other than security and integrity of the country, we/ any Member of the Joint Venture or any of our/their Joint venture member have not been convicted by a Court of Law or indicted or adverse orders passed by a regulatory authority which could cast a doubt on our ability to undertake the Project or which relates to a grave offence that outrages the moral sense of the community.

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13. I/We further certify that no investigation by a regulatory authority is pending either against us/any member of Joint Venture or against our CEO or any of our directors/ managers/ employees."

Appendix IB consists of the letter comprising the financial bid, which is also in a particular format, paragraph 2 of which reads as follows:

"2. I/We acknowledge that the Authority will be relying on the information provided in the BID and the documents accompanying the Bid for selection of the Contractor for the aforesaid Project, and we certify that all information provided in the Bid are true and correct; nothing has been omitted which renders such information misleading; and all documents accompanying the Bid are true copies of their respective originals."

Annex I, entitled "Details of Bidder", contains, in clause 7, the following:

"7 (a) I/We further certify that no investigation by a regulatory authority is pending either against us/any member of Joint Venture or our sister concern or against our CEO or any of our directors/managers/employees.

(b) I/We further certify that no investigation by any investigating agency in India or outside is pending either against us/ any member of Joint Venture or our sister or against our CEO concern or any of our directors/managers/employees.

A statement by the Bidder and each of the Members of its Joint Venture (where applicable) disclosing material non-performance or contractual non-compliance in current projects, as on bid due date 'is given below (attach extra sheets, if necessary) w.r.t. para 2.1.14."

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