M/s Maccaferri Infrastructure Pvt. Ltd v. Union of India and Others

first part m andat es t hat t he bidder should have received paym ent s for considerat ion of eligible proj ect s; and t he second part m andat es t hat t he bidder m ust have undert aken const ruct ion by it self in PPP proj ect s and for a sum am ount ing t o nearly ₹48 crores; t hat apart , t he proviso also m andat es t hat , at least one work of sim ilar nat ure, t o execut ed a hill/ m ount ainous region.

5. I n t he case on hand, t he fact s are not in disput e. The work was allot t ed t o t he so- called m ot her ent it y, nam ely, M/ s MESPL and not in favour of t he 3 pet it ioner i.e. MI PL. The Work Experience Cert ificat e has been issued by t he aut horit y in favour of M/ s MESPL and t he paym ent s have also been released by t he em ployer in favour of M/ s MESPL. Though, t he pet it ioner claim s t o have execut ed t he work, t he Work Cert ificat e does not disclose execut ion of t he cont ract by t he pet it ioner.

6. The m oot quest ion is whet her t he privat e arrangem ent s bet ween t he privat e ent it ies would enable t he Tendering Aut horit y or t he em ployer t o issue a Work Experience Cert ificat e? I n t he, prim a facie, opinion of t his Court , t here is no such provision, which would enable t he Tendering Aut horit y or t he em ployer, t o issue t he Work Cert ificat e, cert ifying t he execut ion of t he work by a t hird part y ot her t han t he Tendering Ent it y, unless and unt il, t he work has been execut ed in a PPP m odel or by a SPV. I n t he inst ant case, neit her being t he case, we find no illegalit y in t he reasons set out by t he Tender Evaluat ion Com m it t ee ( TEC) t o declare t he bid of t he pet it ioner as non- responsive.

7. That apart , t he case canvassed by t he pet it ioner also requires t o be rej ect ed on anot her ground of am biguit y. The Tender Evaluat ion Com m it t ee is not a legal expert , which can be called upon t o adj udicat e any 4 legal nicet ies or legal issues. To expect t he TEC t o funct ion as an adj udicat ory body, in t he nat ure of a Tribunal or a Court , would result in disast rous consequences. Such am biguit ies and legal nicet ies, if have t o be appreciat ed by t he TEC, t he sam e would result in hum ongous delays virt ually rendering t he budget allocat ed for t he proj ect , a m irage. The essence of a cont ract is in t he expedit ious execut ion and t he fact ors, which would delay t he execut ion, m ore part icularly, proj ect s which can relat e t o infrast ruct ure, building or which relat e t o safet y m easures as in t he inst ant case i.e. m easures t o prevent t he landslides, we are of t he considered opinion t hat it would be beyond t he expect at ions t o expect t he TEC t o act as an adj udicat ory body. The language of t he GCC being sim ple and t here being no am biguit y in t he sam e, we do not find any subst ance in t he grounds canvassed by t he pet it ioner. The condit ion, m ore part icularly, t he words “ t he bidder shall” indicat e t he m ind of t he t endering aut horit y, which requires t hat t he bidder, or t he person t endering t he bid docum ent s, who desires t o execut e t he proj ect shall be t he person who shall have t he experience st ipulat ed under t he condit ion. 5

8. I n t he inst ant case, t he undisput ed fact is t hat t he work has been allot t ed t o a t hird- part y/ ent ity and t he considerat ion for execut ion of t he work has also been paid by t he aut horit ies t o t he t hird part y ent it y and t he records also reflect ing t he nam e of t he t hird part y ent it y, t his Court has no hesit at ion t o rej ect t he case of t he pet it ioner and uphold t he im pugned endorsem ent .

9. Aft er dict at ion of t he above order, t he learned counsel for t he pet it ioner also places reliance on Clause

2.2.2.6( ii) , which reads as under: - t he 5 ( ii) For a proj ect t o qualify as an Eligible Proj ect under Cat egories 3 and 4, t he Bidder should have received paym ent s from it s client ( s) for const ruct ion works execut ed, fully or part ially, or work execut ed and t he Engineer- in- charge/ I ndependent cert ified Engineer/ Aut horit y's Engineer during ( five) financial years im m ediat ely preceding t he Bid Due Dat e, and only t he am ount s ( gross) act ually received/ work execut ed, during such 5 ( five) financial years shall qualify for pur poses of com put ing t he Experience Score. However, receipt s of or work execut ed am ount [ Rs. 3.19 Crore ( Rs. Three Crore and Ninet een Lacs only) ] shall not be reckoned as receipt s for Eligible Proj ect s. For t he avoidance of doubt , const ruct ion works shall not include supply of goods or equipm ent except when such goods or equipm ent form part of a t ur n- key const ruct ion cont ract / EPC cont ract for t he proj ect . Furt her, t he cost of land and ( like also cost shift ing of ut ilit ies et c.) shall not be included hereunder. t owards pre- const ruct ion act ivit ies t han

10. A plain reading of t he above would only but t ress t he view expressed by t his Court . The above condit ion furt her am plifies t he fact t hat t he cert ificat e 6 t o have been issued by t he aut hority i.e. Engineer- in- charge/ I ndependent Engineer/ Aut horit y’s Engineer and, in t he inst ant case, t here is no such cert ificat e available, favouring t he Pet it ioner. The appreciat ion and conclusion drawn by t he Tender Evaluat ion Com m it t ee not suffering from any infirm it y, t he sam e does not warrant any int erference.

11. Accordingly, t he writ pet it ion st ands rej ect ed. There shall be no order as t o cost s. ( G. N A REN D A R, C. J.) ( A LOK M A H RA , J.) Dat ed: 18.06.2025 BS BALWANT SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=fbbd191c8bdb8b16e8ca7937deaf72a17c02fe 2eacbf28cdf4ba7ce8640c5820, postalCode=263001, st=UTTARAKHAND, serialNumber=04E141DF4614F9A4D5F48346EB553DE5 185F418755DC00A7A13C14A680C3FA90, cn=BALWANT SINGH 7