Tender conditions must be clear; rejection based on non-submission of non-mandatory documents is unjustified.

JUDGMENT :

1. Leave granted.

Factual Matrix

2. In response to Notice Inviting Tender¹[ID 2024_MPPGC_341576_1, hereinafter referred to as “NIT”.] 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[Hereinafter “WCL”.] (Nagpur area) sources for Shree Singaji Thermal Power Project, Khandwa (Madhya Pradesh), the appellant and two others, namely the 2nd respondent³[Rukhmai Infrastructure Pvt. Ltd.] 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[Hereinafter referred to as “The Committee”.] while referring to Clause 5(D)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)] 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, 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