IMPORTANT POINT
Government Contract – A person who is indicted for a criminal offence has to disclose factum of indictment. A technical objection based on rejection order cannot be allowed to prevail in face of suppression of a most material fact.

JUDGMENT :

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) & (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:

(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