No-Implied-Document Rule in Public Tenders and Limits on Judicial Supplementation

Case: Maha Mineral Mining & Benefication Pvt. Ltd. v. Madhya Pradesh Power Generating Co. Ltd. & Anr.

Citation: 2025 INSC 1085

Court: Supreme Court of India

Date: 09 September 2025

Introduction

This appeal from the High Court of Madhya Pradesh arises out of a public procurement for run-of-mine coal beneficiation and logistics for the Shree Singaji Thermal Power Project (Khandwa) floated by Madhya Pradesh Power Generating Company Limited (MPPGCL). The bidder, Maha Mineral Mining & Benefication Pvt. Ltd. (Maha Mineral), and Rukhmai Infrastructure Pvt. Ltd. (Rukhmai) were the two contenders left in the field after a third entity failed to furnish earnest money.

The Tender Evaluation Committee rejected Maha Mineral’s technical bid for non-submission of a joint venture (JV)/consortium agreement to evidence its proportionate share while relying on past JV experience under Clause 5(D) of the Notice Inviting Tender (NIT). The High Court not only upheld the disqualification on this ground but also added, on an altogether different basis, that Maha Mineral would in any event be ineligible under Clause 5(B) because its washeries were allegedly committed to another principal (Maharashtra State Mining Corporation, MSMC) under the JV arrangement.

The Supreme Court’s judgment squarely addresses two recurring questions in public tenders: first, whether a bidder can be disqualified for not submitting a document that the NIT does not expressly require; and second, whether a reviewing court may sustain a tender rejection on grounds not cited by the tendering authority. The decision lays down a clear “no-implied-document” rule for pre-qualification and reaffirms limits on judicial supplementation of administrative reasons.

Summary of the Judgment

The Court set aside the High Court’s affirmance of disqualification under Clause 5(D) of the NIT. It held that Clause 5(D) did not mandate submission of the JV agreement itself to prove the bidder’s proportionate share for relying on a previous JV’s past experience.
Maha Mineral’s work execution certificate from MSMC, which expressly recorded its 45% share in the JV (Hind Maha Mineral LLP) and substantial execution of similar work within the stipulated period, was sufficient to satisfy Clause 5(D). The Tender Committee’s insistence on a JV agreement—absent any explicit requirement—was impermissible.
MPPGCL’s “no shortfall window” clause (Clause 8.1) and the State’s circular of 29.11.2023 did not relieve the procurer of its discretion under Clause 8.8 to seek clarifications or additional information in the overall interest of fair assessment. The authority could have verified the certificate with MSMC or called for the JV agreement; it did neither.
The Supreme Court rejected allegations of mala fides and “suppression,” noting that all versions of the JV materials consistently reflected the same 45% share and the authenticity of the certificate was never doubted.
The High Court erred in sustaining disqualification on a new ground under Clause 5(B) (spare washery capacity), raised through written submissions and never forming the Tender Committee’s rationale. This contentious issue was remanded to the High Court for fresh adjudication after giving Maha Mineral an opportunity to respond.
The appeal was partly allowed: the High Court’s judgment was set aside; remand directed on Clause 5(B) and the consequential validity of the award to Rukhmai, to be decided expeditiously (preferably within two months).

Key Issues

Whether Clause 5(D) of the NIT expressly required submission of the JV/consortium agreement as the only acceptable proof of a bidder’s proportionate share for using a previous JV’s past experience.
Whether MPPGCL acted lawfully in rejecting the bid for “incomplete documents” by invoking Clause 8.1 (“no shortfall window”) despite having a discretion under Clause 8.8 to seek clarifications or additional information.
Whether the High Court could sustain disqualification on a fresh ground under Clause 5(B) (spare washery capacity) not relied upon by the Tender Evaluation Committee, and without granting the bidder a chance to rebut.

Detailed Analysis

A. The Court’s Construction of Clause 5(D): The “No-Implied-Document” Rule

Clause 5(D) permitted bidders to rely on the “past experience of their previous consortium or JV” proportionate to the bidder’s share if defined in the consortium/JV agreement; if not defined, the experience would be attributed to the lead partner. Crucially, the clause did not say that the JV agreement must be produced as the only or mandatory proof of such share. It did, however, require a customer’s work execution certificate and relevant unpriced work orders to evidence past execution.

Maha Mineral submitted an MSMC work execution certificate stating that Maha Mineral held a 45% share in the Hind Maha Mineral LLP JV under a JV agreement dated 02.12.2019, and that it had executed large volumes of similar work in the relevant period. The Tender Committee nonetheless rejected the bid, concluding that “no documents other than the consortium/JV agreement” could be permitted to establish eligibility. The Supreme Court found this reading unsustainable:

The NIT did not expressly require the JV agreement to be submitted; it required proof of past experience and allowed reliance on JV experience proportionate to a defined share. A credible customer certificate explicitly identifying the bidder’s share and execution sufficed.
Where the procurer intends to insist on a specific document as the only acceptable proof, the NIT must state it clearly. Tender conditions must be “clear and unambiguous.”
MPPGCL did not dispute the authenticity of the MSMC certificate; it simply faulted the absence of the JV agreement. This, the Court held, was contrary to the NIT’s text.

B. Clause 8.1 (“No Shortfall Window”) vs Clause 8.8 (Power to Seek Clarifications)

MPPGCL relied on Clause 8.1 and a State circular (29.11.2023) to argue that bidders must upload all desired documents with the bid and that post-submission supplementation is prohibited. The Court accepted the policy rationale but emphasized a critical distinction:

Clause 8.1 curbs the submission of “shortfall documents” after bid submission to prevent abuse and ensure a level playing field.
Clause 8.8, couched in a non-obstante form, preserves the procurer’s discretion to assess credibility and capacity and to “seek such additional information” as may be necessary “to satisfy itself of the eligibility of the bidder.”

In other words, while bidders cannot be permitted to cure substantive omissions or introduce new qualifying documents after the fact, the procurer may, where the bid contains credible material (here, the MSMC certificate), verify or call for clarifications, including asking for the JV agreement if needed. MPPGCL’s refusal to exercise this discretion and its insistence on an unstated “JV agreement only” rule rendered the rejection unfair and contrary to the NIT.

C. Alleged Suppression and Mala Fides

The respondents argued that Maha Mineral acted with mala fides by not uploading the JV agreement and later emailing a JV agreement of a different date. The Supreme Court rejected this line of attack:

Clause 5(D) did not mandate uploading the JV agreement; the bidder complied by furnishing the customer certificate and work orders demonstrating JV share and execution.
Across all versions of the JV documentation placed at different stages, the bidder’s proportionate share (45%) remained consistent and matched the customer certificate. The material inconsistency alleged did not affect eligibility.
A pending civil dispute among JV partners was irrelevant to the bidder’s proportionate share or to the fact of past execution evidenced by the MSMC certificate.

D. Limits on Judicial Supplementation: The High Court’s Overreach

The High Court ventured beyond the Tender Committee’s reasons to hold that Maha Mineral would, in any event, be disqualified under Clause 5(B) because its washeries were allegedly exclusively committed to MSMC under clauses of the JV agreement. The Supreme Court identified two errors:

Procedural fairness: The Clause 5(B) issue surfaced through a respondent’s written submissions and was not the basis of disqualification at the evaluation stage. The bidder was denied a fair opportunity to meet this new case.
Judicial review restraint: Courts reviewing tender decisions should not “travel beyond” the authority’s stated reasons to sustain disqualification on new grounds. The legality of an administrative decision must be tested on the reasons contemporaneously recorded by the decision-maker.

Consequently, the Court remanded the Clause 5(B) question—whether Maha Mineral had the requisite spare washery capacity and whether any JV/contractual commitments precluded availability—to the High Court for adjudication after hearing all sides. The validity of the award to Rukhmai is to be tested in light of that determination.

E. Precedents Cited

The text of the judgment does not list specific prior authorities. Nonetheless, the Court’s reasoning coheres with settled principles in Indian public procurement and administrative law:

Judicial deference in tender matters paired with intervention when decisions are arbitrary or contrary to the tender’s own terms.
The “reasons recorded” discipline in administrative law: decisions must stand or fall on the reasons offered by the decision-maker, not on post hoc rationalizations.
Clarity and certainty in tender conditions: where procurers intend to require a specific document or stipulate an exclusive mode of proof, they must say so expressly.
Permissible clarifications versus impermissible post-bid supplementation: procurers may verify or seek clarifications to assess eligibility but should not allow curative submissions that alter the substance of a bid or cure disqualifying omissions.

The present decision reinforces these strands by explicitly disallowing implied documentation requirements and by insisting that reviewing courts do not add fresh grounds to sustain an administrative outcome.

F. Legal Reasoning: Principles Applied

Textual fidelity to the NIT: The Court adhered to the plain language of Clause 5(D), which permitted reliance on JV experience proportionate to share and required a customer certificate and work orders. It declined to read into the clause a mandatory requirement to file the JV agreement.
Fairness and proportionality in evaluation: Since the authenticity of the MSMC certificate was not doubted and it contained explicit details of share and past execution, outright rejection for want of a JV agreement was disproportionate, especially when Clause 8.8 empowered the authority to clarify doubts.
Non obstante and discretion: Clause 8.8’s non obstante framing made clear that, notwithstanding other clauses, the procurer could seek additional information to satisfy itself about eligibility. Failure to use this discretion, when fairness so required, undermined the decision.
Judicial review boundaries: The Court restated that a reviewing court cannot replace the authority’s reasons with new ones. Where a different and contentious ground (Clause 5(B)) was not part of the rejection and was contested on facts, the appropriate course was remand with an opportunity to be heard.

G. Impact and Implications

For Procuring Entities

Drafting discipline: If a specific document (e.g., the JV agreement) is intended to be mandatory and exclusive proof, the NIT must say so unambiguously. Vague or implied requirements are vulnerable.
Balanced application of “no shortfall” policies: Anti-abuse clauses that prohibit post-bid supplementation should not be used to reject bids that comply on their face and contain verifiable evidence. Authorities should use clarification powers to resolve genuine doubts.
Evaluation records: Decisions should document why clarifications were or were not sought, especially where the NIT empowers doing so. This creates a defensible administrative record.
Risk management: Over-rigid rejections on non-explicit grounds can derail procurement timelines through litigation. Using clarifications where appropriate can minimize disputes.

For Bidders

Evidence strategy: When relying on JV experience, ensure customer certificates explicitly state the bidder’s proportionate share, timeframe, quantities, and similarity of work. Such certificates can carry the eligibility burden if the NIT does not mandate the JV agreement.
Consistency: Maintain consistent documentary trails (certificates, work orders, JV materials). Inconsistencies invite avoidable disputes, even if immaterial.
Pre-bid queries: Where ambiguity exists, seek clarifications during the pre-bid stage to lock in interpretations and avoid post-bid disputes.

For Courts

Reason-testing: Confine review to the reasons actually recorded by the tendering authority; avoid supplanting with new disqualification grounds, particularly on contentious facts.
Remedial prudence: Where new issues arise or procedural fairness is compromised, remand with directions for expeditious decision-making may be the appropriate course.

Complex Concepts Simplified

NIT (Notice Inviting Tender): The document detailing eligibility criteria, scope, and instructions for bidders.
Past experience criterion: Pre-qualification requirement that bidders demonstrate prior execution of similar work of specified scale and within a set timeframe.
JV/Consortium and proportionate share: A joint arrangement where members share roles, risks, and experience. “Proportionate share” refers to the defined percentage of participation, which determines how much of the JV’s past experience can be attributed to a member.
Work execution certificate: A customer-issued certificate confirming that specified quantities and activities were actually performed, typically including dates, volumes, and project details.
No shortfall window: A clause that prohibits bidders from curing deficiencies by uploading missing documents after bid submission, aiming to maintain fairness and prevent gaming.
Clarification power (non obstante): An express override allowing the procurer to request additional information to assess eligibility despite other restrictive provisions, used to verify rather than permit curative supplementation.
Judicial review limits: Courts assess the legality, rationality, and fairness of administrative decisions but generally avoid second-guessing technical evaluation and do not add new reasons to justify a decision.

Conclusion

The Supreme Court’s decision establishes a clear and practical rule for public procurement: bidders cannot be disqualified for failing to submit a document that the NIT does not expressly require; where credible evidence appears on the face of the bid (like a customer execution certificate explicitly identifying JV share), it suffices unless the NIT mandates a specific form of proof. The procurer’s anti-supplementation policy does not extinguish its discretion to verify and clarify under a non obstante clause designed precisely for fair assessment.

Equally important is the reaffirmation that courts must not sustain administrative decisions on new grounds that were not part of the original rationale, especially where those grounds are factually contentious and the affected party was not heard. By setting aside the High Court’s approach and remanding the spare capacity question under Clause 5(B), the Court restored procedural fairness and confined judicial review to its proper bounds.

Going forward, the judgment will influence how NITs are drafted and enforced, encouraging explicitness in documentary requirements and balanced use of clarification powers. It provides bidders with a principled basis to rely on customer certificates for JV experience, and it provides courts with a measured template for reviewing tender disputes without overstepping into the administrative domain.

No-Implied-Document Rule in Public Tenders and Limits on Judicial Supplementation: Maha Mineral Mining & Benefication Pvt. Ltd. v. Madhya Pradesh Power Generating Co. Ltd. (2025 INSC 1085)