LexM/S. CRRC CORPORATION LTD. versus METRO LINK EXPRESS FOR GANDHINAGAR & AHMEDABAD (MEGA) COMPANY LTD.
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[2017] 5 S.C.R. 87 MIS. CRRC CORPORATION LTD. v. METRO LINK EXPRESS FOR GANDHINAGAR & AHMEDABAD (MEGA) COMPANY LTD. Contract: (Civil Appeal No. 12065 of2016) MAYlS,2017 [DIPAK MISRA AND AMITAVA ROY, JJ.] A B Respondent company inviting tenders/bids for a Project - C Determination of the eligibility and qualification criteria before opening 'technical bids' and 'price bids' of the bidders - Bid of the appellant-Corporation rejected disqualifying it for further participation, on the ground of deficiency in experience in terms of cl. 2.4 of Section Ill of Tender Documents - Whether the appellant- D Corporation, to meet the experience norm, as prescribed by cl. 2.4, could utilize the experience of its subsidiary companies (not being the constituents of Joint venture or a Consortium) to qualify in the initial bid - Held: As per cl. 4.1 of s.1 of Instructions to Bidders, a bidder can be a single entity or a combination of such entities in the form of a Joint Venture or a Consortium - A single entity would E include a Government owned entity with its I 00% wholly owned subsidiaries eligible to bid in terms of clause 4.1 of the tender conditions - Appellant-Corporation is a Government owned Corporation - Therefore, disqualification of the appellant- Corporation is unsustainable being grossly illegal, arbitrary and F perverse. Allowing the appeal, the Court HELD: 1. A plain reading of clause 4.1 of Section 1 of Instructions to Bidders reveals that a bidder can be a single entity or a combination of such entities in the form of a Joint Venture or .G a Consortium under an existing agreement or with the intent to enter into such an agreement supported by a letter of intent. Thus a single entity has been construed to be a valid bidder for all intents and purposes. [Para 34) (111-A) H 87 88 SUPREME COURT REPORTS [2017] 5 S.C.R. A 2. A single entity would assuredly include such a government owned entity along with its 100% wholly owned subsidiaries. This is more so on the touchstone of otherwise imperative facilitation of a broad based participation of entities with competing worth and capabilities, in the overall interest of B the timely and quality execution of a public project. Having regard to the magnitude of the project as well as the experience and expertise essential for the quality execution thereof, there seems to be no justification to infer, at the first place, to exclude a government owned entity with its 100% wholly owned subsidiaries to be ineligible to participate in the process. [Para 35] [111-B-D] c D 3. The status and the entitlements of the appellant- corporation, as already adjudicated in *Consortium of Titagarh Firema Adler SPA case, as a single entity bidder in the present tender process would also by the yardstick of simple logic and analogy be available to it. Absence of the words "government owned entity" in clause 4.1, presently under consideration, is of no consequence. In clause 4.1 involved in *Consortium of Titagarh Firema Adler SPA case, "government owned entity" had been contemplated as one of the bid.de rs in contradistinction to "private entity" and "any combination of such entities" in the form of a joint venture ..... The expression used in the present clause 4.1 E being "single entity", understandably, it is inclusive of a private as well as a government owned entity. The unit envisaged as a single entity is thus independent of any combination or formption in the form of a Joint Venture or a Consortium and thus is visualised to be one integral and composite whole. In such a logical F premise, a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of clause 4.1 of the tender conditions and is to be regarded as single, coherent and homogeneous existence and not a disjointed formation. [Para 37] [111-G, H; 112-A-D] G 4. The queries and the clarifications, relatable to the discord, do not substantiate the plea of the respondent in any manner whatsoever. The foundation of rejection of the appellant's bid is the clarification to the query mainly at serial No. 50. It is patent therefrom that it was in response to a query made by a subsidiary company to allow for its benefit, the experience of the parent H • MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR 89 GANDHINAGAR&AHMEDABADCOMPANY company/group companies to meet the qualification r
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