Case: Jay Constructions Vs. The State of Maharashtra and Others

not a deficiency which could be cured subsequently. If the same would have been permissible, then that would tantamount to re-arranging the goalposts to the privilege of the petitioner as held by the Apex Court in a case of Central Coalfields Limited (supra).16. At the time of opening of the technical bid, the petitioner was absent. The reason given by the petitioner is that, he was not intimated about the extended date of opening of technical bid. The ld. AGP has clarified that, the technical bids were opened on 11.12.2017. Out of 6 tenderers, 4 were present. The petitioner and his representative was absent. All six tenderers were communicated about it. We would have accepted the case of the petitioner that he was unaware of the tenders being opened on 11.12.2017, however, letter given by the petitioner on 14.12.2017 shows that he had knowledge of the tenders being opened on 11.12.2017. In the said letter, he states that, he has successfully qualified as per the tender condition. In the said letter, he also communicated the committee to accept his tender and out of six tenderers, four were present in the meeting. This would show that, the petitioner was aware of the opening of the tender on 11.12.2017. The tenders were opened on 11.12.2017. They were scrutinized and the decision was taken by the committee on 15.12.2017. No mala fides are attributed to the members of the Committee evaluating the technical bids. Moreover, even the certificate produced by the petitioner regarding experience of the work done shows that the said certificate is with regard to the experience of a major bridge and the certificate did not state that the petitioner had experience of road work. On that count also, the tender of the petitioner is rejected. The certificate produced by the petitioner describes the work being done of major bridge on Kasere Malse road. The said certificate nowhere shows the petitioner having performed the work of road. No justification is coming forth for not giving the certificate of having done the work of road. In light of the above, we do not find that the respondent-authority has faltered in the decision making process while rejecting the technical bid of the petitioner.17. One of the contentions of the respondents relying upon condition no. 4.5 is that, to qualify for award of the contract, each bidder in its name should have in the last five years as referred under the Appendix (A) achieved a maximum financial turnover, as per the amount indicated in Appendix in any one year, (B) satisfactorily completed as a prime contractor at least similar work of value not less than the amount indicated in the Appendix and (C) executed in one year the minimal quantity of the items of work as indicated in Appendix. The respondent No. 5 has not executed the work in its name.18. It appears that, the respondent No. 5 is incorporated and registered in the year 2015. One of the partners Mr. V.I. Rajput, has the necessary experience as required under clause 4.5 of a tender. It is trite that the partnership firm does not have independent legal existence and is a compendium of partners. The question whether the experience of the partner of a firm or a director of a company can be considered as an experience of the partnership firm and/or the company as the case may be, was the subject matter of consideration before the Apex Court in a case of New Horizon (supra). The Apex Court in the said case observed that the experience of the partner in the firm can be considered to be the experience of the firm. The Apex Court in the said case observes thus:23. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be home in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The 493 terms and conditions of such a document have to be construed from the standpoint of a prudent businessman.19. It is undisputed that, one of the partners of the firm Mr. V.I. Rajput had the necessary experience and has done that work. The firm is not an independent legal entity like the company and operates through its partners. In light of that, the experience has been rightly considered by the authorities.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. The interference of the court in tender or contractual matters in exercise of powers of judicial review is minimal. It is limited to the decision making process and does not travel on the arena of the soundness of decision. The court has to consider that the process adopted is not mala fide, arbitrary and irrational and that the decision making process has been adhered to.First objection of the petitioner with regard to the rejection of its tender is that, the tender is rejected without assigning any reasons. We had asked the ld. Assistant Government Pleader about the said aspect. The ld. Assistant Government Pleader has produced on record the decision of the committee evaluating the technical bid. The Committee has given two reasons for rejection of the petitioners tender (i) the distance of the Hot mix plant of the petitioner is at a distance of 71 kms., the distance had to be within 60 kms of the site and if the distance is more than 60 kms, then the petitioner was required to deposit Rs. 5.00 lakhs as additional security which he has not deposited and (ii) the petitioner has not given the composite certificate of having done the work of bridge and road.It is admitted that, the distance of the petitioners Hot Mix Plant from the site in question is 71 kms and the petitioner had not deposited additional security of Rs. 5.00 lakhs along with the tender. The prima dona contention of the petitioner is that, the said condition was not mandatory.Clause 4.3.18 of the tender document states that, all the documents from sr. no. 4.3.1 to 4.3.17 shall be given by the contractor in envelope no. 1, correctly and completely, otherwise his envelope no. 2 will not be opened. Condition No. 4.3.15 prescribes that if the contractor intends to shift already owned or hired plant from existing location to the new location as required for this work, for that, bidder shall submit additional security as specified in clause 4.3.16. Clause 4.3.16 required the bidder to submit the scanned copy of FDR and additional security of Rs. 5.00 lakhs in envelope no. 1. The tender document states that, the Hot Mix Plant must be within 60 kms., from the center of work site, shifting of plant is allowed. As stated above, the petitioner has not disputed that his plant is at a distance of 71 kms from the center of the work site. Shifting was required and for that purpose, Rs. 5.00 lakhs additional security was required to be given. Clause 4.3.18 is abundantly clear. The document as required under 4.3.16 was not given by the contractor in envelope no. 1 viz. technical bid. As such, the petitioner is held to be disqualified. There is no room for interpretation that the said clause was not mandatory or was not a substantial condition. The language of clause 4.3.8 makes it explicitly clear that the document mentioned in clause 4.3.15 and 4.3.16 has to be given by the contractor in envelope no. 1 otherwise his envelope no. 2 will not be opened. Considering the aforesaid undisputed facts, the Committee has not committed any error in rejecting the technical bid of the petitioner.The reliance placed by the petitioner on the G.R. dt. 12.04.2017, more particularly, clause 4.5.1 and 4.5.2 would be of no avail to the petitioner. The said clauses in the G.R. would apply if any explanation is needed i.e. if there is any doubt in the minds of the committee evaluating the tender, then explanation is required to be called from the tenderer about the doubts. In the present case, the non-compliance of condition no. 4.3.16 goes to the root of the matter. It was not a deficiency which could be cured subsequently. If the same would have been permissible, then that would tantamount to re-arranging the goalposts to the privilege of the petitioner as held by the Apex Court in a case of Central Coalfields Limited (supra).At the time of opening of the technical bid, the petitioner was absent. The reason given by the petitioner is that, he was not intimated about the extended date of opening of technical bid. The ld. AGP has clarified that, the technical bids were opened on 11.12.2017. Out of 6 tenderers, 4 were present. The petitioner and his representative was absent. All six tenderers were communicated about it. We would have accepted the case of the petitioner that he was unaware of the tenders being opened on 11.12.2017, however, letter given by the petitioner on 14.12.2017 shows that he had knowledge of the tenders being opened on 11.12.2017. In the said letter, he states that, he has successfully qualified as per the tender condition. In the said letter, he also communicated the committee to accept his tender and out of six tenderers, four were present in the meeting. This would show that, the petitioner was aware of the opening of the tender on 11.12.2017. The tenders were opened on 11.12.2017. They were scrutinized and the decision was taken by the committee on 15.12.2017. No mala fides are attributed to the members of the Committee evaluating the technical bids. Moreover, even the certificate produced by the petitioner regarding experience of the work done shows that the said certificate is with regard to the experience of a major bridge and the certificate did not state that the petitioner had experience of road work. On that count also, the tender of the petitioner is rejected. The certificate produced by the petitioner describes the work being done of major bridge on Kasere Malse road. The said certificate nowhere shows the petitioner having performed the work of road. No justification is coming forth for not giving the certificate of having done the work of road. In light of the above, we do not find that the respondent-authority has faltered in the decision making process while rejecting the technical bid of the petitioner.One of the contentions of the respondents relying upon condition no. 4.5 is that, to qualify for award of the contract, each bidder in its name should have in the last five years as referred under the Appendix (A) achieved a maximum financial turnover, as per the amount indicated in Appendix in any one year, (B) satisfactorily completed as a prime contractor at least similar work of value not less than the amount indicated in the Appendix and (C) executed in one year the minimal quantity of the items of work as indicated in Appendix. The respondent No. 5 has not executed the work in its name.It appears that, the respondent No. 5 is incorporated and registered in the year 2015. One of the partners Mr. V.I. Rajput, has the necessary experience as required under clause 4.5 of a tender. It is trite that the partnership firm does not have independent legal existence and is a compendium of partners. The question whether the experience of the partner of a firm or a director of a company can be considered as an experience of the partnership firm and/or the company as the case may be, was the subject matter of consideration before the Apex Court in a case of New Horizon (supra). The Apex Court in the said case observed that the experience of the partner in the firm can be considered to be the experience of the firm.It is undisputed that, one of the partners of the firm Mr. V.I. Rajput had the necessary experience and has done that work. The firm is not an independent legal entity like the company and operates through its partners. In light of that, the experience has been rightly considered by the authorities.