High Court of Punjab and HaryanaCWP/20130/2020dismissed

M/S A.G. Construction Co. v. Food Corporation Of India And Others

2021-02-10The Chief Justice,Mr. Justice Arun Palli43 pages

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Present:

Mr. Puneet Gupta, Advocate, for the petitioner. Mr. K.K. Gupta, Advocate, for the respondentFCI. **** ..1 1.

The petitionerM/s A.G. Construction Co., is a proprietorship concern. And vide this petition, prays for a writ of Certiorari to quash the orders dated 02.11.2020 (P6), whereby the bid submitted by the petitioner, upon technical evaluation by the duly constituted committee, was rejected being nonresponsive, and also dated 20.11.2020 (P12), vide which even the representation against rejection of its bid has since been declined. A Mandamus is also prayed for, commanding the respondentauthorities to reckon the experience the sole proprietor (Ajay Kumar Garg) of the petitioner concern had acquired, while being a partner in M/s B.G. Constructions Co. Bathinda (partnership firm) and accordingly, he be held to be technically compliant, and the bidding process be initiated afresh from that stage.

In brief, the case set out in the petition is that petitioner is an enlisted contractor in Class I category of building works of the Punjab Mandi Board and the Punjab Roads and Bridges Development Board. And as would be necessary to point out, earlier the petitioner was a partner in %&" #"

'( !#". (erstwhile partnership firm), and held 50% share, whereas, Tarun Bansal and Varun Bansal were the other two partners who had 25% share each in the firm. For, the firm was dissolved on 25.6.2019, in terms of the Memorandum of Understanding dated 25.6.2019, executed between the partners, it was agreed that they were free to set up their new ventures and could also use the technical and financial credentials of the firm corresponding to their respective shares. The respondent authorities, in August, 2020, vide tender notice No.06/2020, invited Etenders under Two Bid System for construction of District Office Building at Bathinda, from appropriate class of approved contractors of CPWD, State PWDs, MES, Railways and Public Sector Undertakings/Enterprises of the Central Government and State Government.

To be eligible to bid, the tenderers required to have satisfactorily completed, during the last five years, at least, Three Multi Storey RCC Framed Structure Government Office Building/Institute Building works costing not less than the amount equal to 40% of the estimated cost (Rs.3,95,47,577/) of the tender; or Two Multi Storey RCC Framed Structure Government Office Building/Institute Building works costing not less than the amount equal to 60% of the estimated cost of the tender; or One Multi Storey RCC Framed Structure Government Office Building/Institute Building work of aggregate cost not less than the amount equal to 80% of the estimated cost put to tender.

certificates of requisite amount were required to be uploaded, along with the technical bid. The last date for submission of technical and price bid was 14.9.2020. The petitioner being fully compliant, in terms of the tender document, submitted his technical and price bid in time, along with the requisite fee. However, as posted on the Government eProcurement System Portal, on 02.11.2020, the tender submitted by the petitioner was rejected during technical evaluation, for the documents appended with the bid were not as per MTF. For neither any opportunity was afforded to the petitioner before rejection of his technical bid, nor any explicit reasons were assigned, in support of the rejection, the petitioner approached the respondent authorities on 5.11.2020. But, was orally informed, for the work experience of M/s B.G. Constructions Co.

, Bathinda (erstwhile partnership firm), could not be counted or reckoned as his experience, his bid was found to be non responsive. And, this was despite the fact that petitioner, along with its bid document, had submitted a representation dated 14.9.2020, wherein it was clarified that in terms of the settled law, the experience gained by the proprietor of the petitionerconcern, as partner in M/s B.G. Constructions Co., was required to be computed in proportion to his 50% share, and the judgments of Delhi and Madhya Pradesh High Court were also appended therewith. For, even though the petitioner required the respondent authorities to furnish reasons and provide technical summary of rejection of its bid, but there was no response, the petitioner approached this Court vide CWP No.18987 of 2020.

Bench on 10.11.2020. But, eventually, the said representation was rejected by the respondent authorities, vide order dated 20.11.2020, on the grounds:

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Thus, this petition. 4.

Learned counsel for the petitioner submits that respondent authorities seriously erred in declining to consider the experience gained and acquired by M/s B.G. Constructions Co. (erstwhile partnership firm), in which Ajay Kumar Garg (sole proprietor of the petitioner concern) happened to be one of the partners, as his experience or the experience of the petitioner concern. Further, as per the tender conditions, the requisite experience, in terms of the qualifying criteria, was required to be possessed by the appropriate class of approved # '

'" and not by or in the name of the petitioner (M/s A.G. Construction Co.), and for the proprietor of the petitioner concern possessed the requisite experience, he was eligible to compete in the tender process. In any case, he asserts, for concededly, Ajay Kumar Garg held 50% share in M/s B.G. Constructions Co. (erstwhile partnership firm), he was entitled to claim proportionate experience, in terms of his share, out of the experience acquired by the firm. He, therefore, in reference to the performance/experience certificate (P13), which was issued to M/s B.G. Constructions Co. (erstwhile partnership firm), upon construction of administrative block in BISA Headquarters, at Ladhowal, submits, for the value of the work/project executed by the firm was Rs.

852 lakhs, the petitioner, in terms of his share, would be deemed to have executed one work valuing Rs. 426 lakhs (852/2), and that being more than the cost of the subject tender (Rs. 3.95 crores), he was eligible to bid in terms of the eligibility criteria.

by the Division Bench of Madhya Pradesh High Court in / 2'(, (!3 #4 .

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as judgments in and not in is apparently perverse. For, in both the cases, the Court had actually relied upon the decision of the Supreme Court in %&" ;'!<#".!2!

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8, in the matter at hand, there was no exclusionary clause which stipulates that experience of the partner would not be reckoned and experience in the name of the firm alone shall be counted. He submits that the Division Bench in the said decision had rather observed that judgment of the Supreme Court in %&" ;'!<#".!2!

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8, was confined to the cases, where the qualification was stipulated in respect of the firm without excluding qualifications of the partner thereof. Thus, the respondent authorities apparently failed to apply its mind and consider the claim of the petitioner in the right perspective. No other argument was advanced.

, Mr. K.K.Gupta, learned counsel for the respondent authorities, supports the rejection of the technical bid submitted by the petitioner, by the duly constituted committee, being nonresponsive, as also the impugned order dated 20.11.2020 (P12), whereby, upon due and comprehensive consideration of the claim of the petitioner, even its representation was rejected. He asserts, for apparently the petitioner did not possess the requisite experience, in terms of the qualifying criteria, rejection of its technical bid was inevitable. Thus, he submits that the petition deserves to be dismissed. 6.

We have heard learned counsel for the parties and perused the records. 7.

In context of the matter in issue and to proceed further, we consider it expedient to set out the eligibility criteria stipulated at page 4 of the MTF, which reads thus: "

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Explicitly for a tenderer to be eligible to bid, he ought to have satisfactorily executed, during the last five years, either ,'

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;'A"$ costing not less than the amount equal to 40% of the estimated cost put to tender (40% of Rs.3,95,47,577.00)=Rs.1,58,19,031.00 or ; ;'A" costing not less than the amount equal to 60% of the estimated cost of the tender (60% of Rs.3,95,47,577. 00)=Rs.2,37,28,546.00 or # ;'A costing not less than the amount equal to 80% of the estimated cost put to tender (80% of Rs.3,95,47,577.00)=Rs.3,16,38,062.00. And, as indicated earlier, in terms of the tender conditions, copies of experience/work completion certificates of requisite amount were required to be submitted with the technical bid. Concededly, the petitioner did not possess the required experience either in his name or in his independent capacity. But, for he happened to be one of the partners in M/s B.G. Construction Co.

(erstwhile partnership firm), he appended the experience/performance certificate (P13), dated 9.3.2020, that was issued in the name of the firm. And, as indicated earlier, his claim is, for the partnership firm is not a separate legal entity but only a compendious mode of describing its partners, therefore, the experience of the firm is indeed the experience of its partners, and thus, ought to have been reckoned, while evaluating the eligibility of the petitioner. Also, in any case, for Ajay Kumar Garg (the sole proprietor of the petitioner), held half share in the erstwhile

firm, he was entitled to claim work experience, at least, equal to half the value of the project/work (852/2 lakhs=Rs. 4.26 crores), executed by the firm. And thus, by necessary implication, he possessed the requisite experience and eligibility to bid in his independent capacity. 9.

In this backdrop, therefore, the question that arises for consideration is, ;,

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To appreciate its true essence and even the nature of project/work that was assigned to and executed by M/s B.G. Constructions Co. (erstwhile partnership firm), it would be apposite to refer to the experience/performance certificate (P13), which forms basis of the claim of the petitioner: .-/% =6

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># the experience gained by M/s B.G. Constructions Co. (erstwhile partnership firm), upon execution of the project/work (), was acquired by the combined, collective and integrated labour of its partners, who, apart from their individual investments, had pooled in their respective resources, skill, knowledge, experience, ideas and information. And, were, thus, supplemental to each other. Quite naturally, the experience certificate () certifies the performance, capacity and capabilities of the firm 7%&"

'( !#" 81 that had executed the project and not of any partner individually. It is true that from the same subject of experience, more than one can gain experience, however, that must not by itself evince the conclusion that each person gaining 'experience' (limited to their contribution) in the output jointly created by them, is entitled to the benefit of the output in its entirety. Though, the so called experience of a firm, in reality, is nothing but the experience of the partners who compose it, such experience of a firm is not in its entirety attributable to each individual partner, but attributable only to the collective effort of all partners concerned.

The benefit of the experience of a firm understood as an inextricably synthesised synergism of the individual efforts of all partners cannot therefore, be extended to a single partner in his individual capacity merely because he might have been actively involved in producing the jointly created final output. Therefore, given the nature of experience, it could have been identifiable, and could be quantified (quantitatively and/or qualitatively) only if it was claimed by the firm itself or its partners jointly.

But, we must pause for a moment to point out that we are not unmindful of a situation, which, perhaps, could be viewed differently subject, of course, to its circumstantial landscape and the specific terms/conditions of the tender enquiry, where a partner is able to conclusively show by producing tangible material that he was the one tasked in his individual/independent capacity with looking after the project he claims experience for and that in doing so, he acquired/gained that experience which is germane to the tender's requirement. 12.

This could be examined from yet another perspective. Ordinarily, in the case of a partnership, the arrangements of the partners

, related to running the business/affairs of the firm, division of work, assignment of specific operations to a particular partner, skill, knowledge and experience possessed by the other and extent of its usage and benefit to the firm are opaque to an outsider looking inwards. Similarly, it is not unusual that every partner does not necessarily attend to the day to day business of the firm. Even a partner who possesses the requisite experience might not have ever participated in the management or affairs of the firm, for he may only be an investment partner. Now, from here, another factor that needs to be kept in view is that matters related to tenders or award of contract in essence are commercial in nature.

As such, the tender inviting authority is certainly entitled to evaluate and satisfy itself as regards the capability and competence of the tenderer in completing the tasks of the kind and magnitude involved in the NIT. Undeniably so, the technical evaluation stage is an extremely sensitive phase in reaching that satisfaction. Additionally, in the context of State projects, an element even of public interest is involved. For the characteristic features herein are opacity and uncertainty as to the innards of the firm's workings, coercing a tender inviting authority to blindly treat experience in the name of an erstwhile partnership firm as the experience of the partner in his individual capacity, in our view, would militate against every judicious consideration that animates an NIT.

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At this juncture, we consider it expedient to even refer to the observations recorded by the Supreme Court in ;'!<#".!2!

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the credentials of the person who is to be entrusted with the performance of the work:

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We are also reminded of the observations recorded by the Supreme Court in (# C#

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Therefore, in a situation where the tender inviting authority is not equipped with any material on record to judge and be sure of whether the tenderer in his individual capacity has the requisite experience or not, we don't consider it rational to coerce the authority to accept the experience certificate of an erstwhile partnership firm regardless, and ask it to resign the fate of its project to the mercurial vicissitudes of chance. 16.

This brings us to a decision rendered by a Division Bench of the Uttarakhand High Court in 0(#;

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'( !#" #%&" 34!# '/!#?, #and had contributed 25% of the investment. The experience certificate submitted by the petitioner included the works executed by the joint venture. The experience acquired by the joint venture was claimed as experience of the petitioner. However, the authorities added only 25% of the experience of the joint venture as experience of the petitioner 7"3 +'+'!

'",!+ # '#8and rejected its bid upon technical evaluation, for it had not executed works above Rs.427.78 lakhs. However, claim of the petitioner was that notwithstanding its investment (25%), the entire experience acquired by the joint venture ought to have been reckoned in computing the required experience and in

that situation, the petitioner fulfills the minimum prescribed experience. Whereas the case of the authorities was, for the petitioner had submitted its technical bid as a sole proprietorship concern and not as a joint venture, the experience of the joint venture could not be considered as experience of the sole proprietorship concern. And, in any event, for the petitioner merely held 25% share in the joint venture, at best, only 25% of the said experience could be claimed by the petitioner. And, the Division Bench, in reference to the decision rendered by the Bombay High Court in

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and had claimed the experience of all its constituents. Thus, rejection of the bid by the authorities, drawing a distinction between the joint venture itself and its constituent members, was set aside both by the Bombay High Court in

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Whereas, in the matter the Court was seized of, though undoubtedly, the petitioner was a member holding 25% share in a joint venture, however, the bid submitted by the petitioner was not as a joint venture, but as a sole proprietorship concern. Thus, unlike a situation where a bid submitted by a joint venture in which the experience of all its constituent members is required to be taken into consideration in computing experience of the joint venture itself, the converse may not be possible Resultantly, the sole proprietorship concern could not claim the experience of the joint venture and all its constituents, as its individual experience.

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Though, we shall be analysing this position in required depth in the subsequent paragraphs, but we may hasten to clarify, at this stage itself, that observations recorded by the Division Bench in 0(#; '#"

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Having said that, we may now advert to the argument that because the sole proprietor of the petitioner concern happened to be a partner and held 50% share in M/s B.G. Construction Co.(erstwhile partnership firm), he was entitled to claim proportionate work experience, equal to half the value of the project. We hold that it lacks conviction and cannot be countenanced either. 19.

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That general understanding of the term however changes semantic shades with reference to the specific disciplinary or factual context it is employed in. In the fields of trade & commerce, business & contracts, applied technology and the like, experience would mean a special skill or knowledge possessed by a person in a particular discipline of science, technology, profession or business by reason of distinctive study, practical acquaintance and involvement relevant to the disciplinary or factual context

in question. For instance, in case of a notification inviting tenders aimed at screening experience for a construction project, a capital investor, though experienced for his professional fief may not be deemed to have the experience of previously constructing a building merely because he bankrolled the venture. An identical anomaly could have arisen even in respect of the partners of M/s #"

'( !#", since its partnership deed in clause 10 (P4) mentions only Ajay Kumar Garg and Varun Bansal as 'working partners'. The Memorandum of Understanding (P5) whereby partners of M/s #"

'( !#"agreed to go their separate ways, stipulated that the partners were free to start new firms and participate in any tender by taking their separate shares technically as well as financially. One could very well imagine a situation where Tarun Bansal (third partner of M/s #"

'( !#"81 merely being an investment partner, approached this Court claiming the benefit of experience in the name of the erstwhile firm. Evidently, the financial stakes or share held by a partner has no nexus with the experience he is required to possess in terms of the tender conditions. In other words, experience is not a commodity that could be acquired for consideration. As for this, we may also refer to the observations recorded by the Division Bench of the Bombay High Court in

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Even otherwise, the argument that is sought to be advanced not only defies logic, but is also self defeating. For, if that is accepted and cost of the project executed by the firm, is reduced in proportion to his share (50%), then, as a necessary consequence, not only the work/project but even the experience that stems from its execution loses its character and conclusivity, for that too would be reduced proportionately. Whereas, in terms of the eligibility criteria, the tenderer ought to have satisfactorily executed # "+ !

;'A valuing not less than 80% of the estimated cost of the subject tender. Moreover, as indicated earlier, the experience gained by the erstwhile firm was acquired owing to combined, collective and integrated labour and resources of its partners, and hence, was so inseparably interwoven that it was neither divisible nor could it be apportioned amongst its partners. Unlike a joint holding where a cosharer has a right to seek partition of his

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We have also examined the decisions that have been relied upon by the learned counsel for the petitioner, and before we even refer to each of those, we may observe that none, in our opinion, applies to the facts of the present case. In ;'!<#".!2!

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8, the department of telecommunications invited tenders for printing telephone directories. The

tenderers were required to possess experience in compiling, printing and supplying telephone directories to the large telephone systems with the capacity of more than 50,000 lines and to substantiate this with documentary proof and by furnishing its credentials in the field. NHL (appellant) and respondent No.4 were amongst the 5 bidders. NHL (appellant) had mentioned in its bid that it was a E!# 4 # ('

2+ #5comprising of 5 entities incorporated both in India and abroad. The High Court had held, each of the members of the joint venture had more than the requisite experience, but, NHL (appellant) itself did not possess the same. However, the Supreme Court in its decision concluded:

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Apparently the appellant (NHL) was a joint venture comprised of 5 entities and each of those was an accomplished business leader and possessed the requisite experience. Thus, NHL had access to the benefit of the resources and strength of its parent/owning companiesMoreover, in the tender, it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India. It was in these circumstances, that it was concluded that NHL, being a joint venture, the experience of its constituents had to be taken into consideration if the Tender Evaluation Committee had adopted the approach of the prudent businessman.

Further, nonconsideration of the tender submitted by NHL had resulted in acceptance of the tender of respondent No.4 who had offered only Rs.95 lakhs as royalty for three years whereas NHL had offered Rs.459 lakhs which were nearly 5 times the amount offered by respondent No.4. Thus, the decision of the Tender Evaluation Committee suffered from the vice of arbitrariness and irrationality. Whereas, the issue in the matter at hand is distinctly different: for in the present case, concededly, neither the petitioner nor its sole proprietor had the necessary experience in its/his own name.

'( !#"cannot validly claim the benefit of experience in the name of such erstwhile firm for reasons already recorded. Hence, the question herein is not whether Ajay Kumar Garg's experience acquired in his individual capacity can enure to the benefit of the petitioner

sole proprietorship concern; instead, the point at issue is whether Ajay Kumar Garg (and by implication the petitioner sole proprietorship concern) can claim experience in the name of his erstwhile firm, i.e., M/s #"

'( !#" in the first place. In other words, if Ajay Kumar Garg undoubtedly possessed requisite experience in his independent capacity in terms of the eligibility criteria, needless to say, the authorities would've been bound to reckon it as the experience of the petitioner sole proprietorship concern, but, as highlighted hitherto, that is not the matter in issue presently. Therefore, there is nothing materially analogical in ;'!<#".!2!

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In fact, upon an analysis of the decision in ; '!<#" .!2!

7"(+'

81 we are rather of the opinion that our view finds resonance and support in few of the observations emphasized by us, while extracting relevant paragraphs of the judgment. For instance, in each of the illustrations described by the Supreme Court, an individual or an entity possessed the requisite tangible experience in its individual capacity, which was quantifiable (qualitatively and/or quantitatively), and with which it could merge itself in another company or enter into a partnership with a firm which lacked the necessary experience. Since the fact that such individual or entity actually had the experience was incontrovertible in these illustrations, the Supreme Court remarked on how absurd it was to discount such experience just because the reorganized company or the firm which had submitted the bid did not have that experience in its name. 26.

Likewise, even the decision by the Division Bench in 0 3!

" '!4

.!2!

7"(+'

8, has no bearing and is clearly distinguishable. For, in the said case, Indian Railway Catering and Tourism

Corporation had invited tenders for providing catering services in certain trains that were being plied by the Corporation. The technical bid of the petitioner, i.e. P.K. Delicacies Private Limited, was rejected, for, it failed to meet the eligibility criteria of at least 5 years past experience in catering/hospitality industries. The tenders by way of publication were invited in the months of March and April 2005. Whereas, the company itself was incorporated on 07.04.2005, but with the object and purpose to take over the business of a partnership firm M/s Pee Kay Associates along with its assets and liabilities. Concededly, both the partners of the firm, namely Mr. Prem Taneja and Mr. Ashu Taneja, were the only directors of the petitionercompany. And, in these circumstances, the past experience of 20 years of M/s Pee Kay Associates was being claimed as experience of the petitioner company. Therefore, in reference to the decision in ;'!<#" .!2!

7"(+'

8, the High Court held that requirement regarding past experience had to be considered from the standpoint of the prudent businessman and commercial point of view. Thus, the corporate veil was required to be lifted to find out the persons who were in actual control and behind the company. Again, what we wish to lay emphasis upon is that there was a complete takeover of the firm (M/S Pee Kay Associates) along with its assets and liabilities; no portion or remnants of the experiential contribution that created the experience of the erstwhile firm was lost or left behind on its transition from being a firm to becoming a company insofar as the conglomerate of individuals behind the veil remained the same. 27.

Similarly, the decision rendered by the Division Bench of Madhya Pradesh High Court in / 2'(, (!3 #4 .

7"(+'

81is distinguishable on facts. Indore Development Authority had invited tenders

for construction of swimming pool complex of International standard. The petitionerSamruddha Buildcon Pvt. Ltd. 7private limited company) was aggrieved, for its technical bid was rejected by the authority. Shri Mahesh Hassanandani, who was one of the directors of the company, also happened to be a partner in M/s Jethanand Arjundas & Sons. However, owing to a family settlement, he retired from the partnership of the firm and formed the petitioner Co. Post split from the partnership firm, he applied for ClassA Contractor Registration Certificate, in terms of Government circular dated 29.03.2011, from the Government of M.P. Significantly, as per clause 3 of the said circular, the petitioner was entitled to use the financial and experience credentials equal to his proportionate share (33.33%) in the firm.

Accordingly, the petitioner company was granted ClassA certificate w.e.f. 06.02.2013. The petitioner, along with its bid, submitted the experience certificate issued by the principal contractor in the year 2013, as per which the partnership firm M/s Jethanand Arjundas & sons had executed the civil construction work valuing Rs.45.40 crores. Therefore, Mahesh Hassanandani, who held 33.33% share in the firm, claimed 1/3rd of the said work experience, which would come to Rs.15.13 crores. Whereas, the qualifying work experience had to be equal to the value of tender i.e. Rs.11.87 crores. Vide declaration appended with the bid, it was notified that pursuant to the order of the Government dated 29.03.2011, the petitioner was entitled to use financial and experience credentials proportionate to his share in the erstwhile firm.

Further, the case of the petitioner was that in the response submitted by the department, it was nowhere stated that circular dated 29.03.2011, issued by the Government, was not being followed.

decision to accept or reject the technical bid, whereas a novel method was adopted by the authority by referring the matter to a Chartered Accountant for financial appraisal report for PQBD and on the basis of the said report, the technical bid of the petitioner was rejected. In these circumstances, it was concluded that decision making process by which the petitioner was excluded was not reasonable and rational under Article 14 of the Constitution of India. But, we are afraid such is not the position in the matter at hand. 28.

In 2+ '33 ' # (!

' # '

3 *" 0 ", * !3 3 % ,

78/ 9:, the respondent was a sole proprietorship firm of Chartered Accountant. One of the statutory functions assigned to the appellant was to get the accounts of Public Sector Undertakings and Government Concerns audited by the Chartered Accountants. The audit work of the Government and Public Sector Undertaking was assigned to only those Chartered Accountants who were enrolled on the panel maintained by the appellant. Vide advertisement issued in May, 1981, applications from the firms of Chartered Accountants for empanelment for audit of the Government companies were invited. Except a few states, only the partnership firms of the Chartered Accountants were eligible for enrolment on the panel and the proprietor firms of the Chartered Accountants were made ineligible.

Upon an analysis of the matter, it was concluded that appellant itself erroneously assumed that the partnership firms were more efficient than the proprietor concern in the matter of audit of accounts of the Public Sector Undertakings or of the Government concerns.

better than one". Further, if the proprietary concern of Chartered Accountants were really inefficient, there is no reason why they were made eligible to conduct audits in few of the specified states, such as Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura. Therefore, the classification between proprietary and partnership firm was held to be arbitrary and unfair on the anvil of Article 14 of the Constitution. Thus, we cannot fathom, as to how this decision would apply to the present case. 29.

But, yes the argument advanced by the learned counsel for the petitioner that decision of a Division Bench of this Court in #!

3% "!, 7"(+'

81has wrongly been relied upon by the respondent authority is valid, as the said judgment does not apply to the facts of this case. For the said judgment answers a question distinctly different from the one presently under consideration, the question in #!

3 % "!, 7"(+'

8 was about the constitutionality of tender prescriptions which stipulate that the experience in the name of the firm only would be considered and that the experience in the name of individual partners would not be counted as that of the firm, whereas that is not the case here. However, that would not by itself automatically lead to the conclusion that every case featuring the absence of an exclusionary clause ought to be one where the authority would be impelled into regarding experience in the name of an erstwhile partnership firm as the experience of the partner in his individual capacity. Despite the apparent difference between the issues answered in #!

3 % "!,7"(+'

8and the questions before this Court, the ratiocination behind the Respondent authority's reliance on #!

3% "!,7"(+'

8is indubitably obvious. This Court's discernment in that respect was further fortified during

arguments, when the learned counsel for the respondents specifically drew the attention of the Court to the following paragraph of #!

3 % "!, 7"(+'

8$ 49;#%

* *

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#3 30.

A bare perusal of the observations, extracted above, reveals that the Division Bench's logical imagination of the issues surrounding a partnership firm and its experience is in sync with the concerns already expressed by us in the preceding paragraphs on the reasons why the jointly created experience of a partnership firm cannot be claimed by one of its partners in his independent capacity. Therefore, in the factual matrix of the instant case, the Respondent authority upon due consideration of the Petitioner's bid concluded that experience in the name of the erstwhile firm (i.e., %&"#"

'( !#") which Ajay Kumar Garg was a part of, could not be considered, not even proportionately so with reference to the extent of his shareholding in the firm, in his individual capacity.

31.

There is yet another dimension to the matter. As specified in the tender notice, tenders were invited from the appropriate class of approved # '

'". The expression, '# '

'', is defined under Clause 2(c) of conditions of contract, at page 21 of the tender document, which reveals that '# '

'' shall mean the individual or firm or company, whether incorporated or not, (# '

A!#? , ;'A.

32.

As indicated earlier, under the caption ' ,#!

3!-1 (page 6 of the tender document), clause (iv) required the K# '

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Thus, i

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AK Sharma/Manoj Bhutani Whether speaking / reasoned: YES Whether Reportable:

YES