M/s Kunwar Construction vs State Of Uttarakhand And Others

Sudhanshu Dhulia, J

The petitioner before this Court has made a bid as a proprietorship firm for a work contract floated by respondent no.2 i.e. National Project Construction Corporation Ltd., which is a State Corporation which undertakes civil construction works. It was a two bid process and the entire cost of the project was Rs.855.57/-Lakh. One of the conditions in the bid document was that a bidder must have undertaken a work of 50% of the cost of the present project, which comes to Rs.427.78 lakh. The petitioner's bid was technically disqualified vide order dated 18.11.2019 on ground that the work done by the petitioner is less than the required value of the work. Aggrieved the petitioner has filed the present writ petition before this Court.

The reason for making the petitioner disqualified is that what is shown by the petitioner as a qualification for having done a similar work having requisite value was not in his individual capacity but in the capacity as a partner in a Joint Venture, where admittedly he has put in 25% of investment, though the value of the entire work is more than Rupees Five Crore. The ground on which it has been rejected was that the petitioner will not get the benefit of the work done but will only get the benefit of carrying experience in relation to the investment, which the petitioner has done which is 25% of investment which is much less than Rupees Four Crore Fifty Five Lakh Only.

The petitioner, on the other hand, contends that his percentage of investment cannot be compared with his experience. The experience which he has acquired will be of the total value of the project. Undoubtedly, the petitioner has only invested 25% of that project but the experience which will be taken into consideration will be the entire cost of the project i.e. Rupees Four Crore Fifty Five lakh odd. To support his argument, learned counsel for the petitioner has relied upon the decision of the Division Bench of the Bombay High Court in the case of Atasha Ashirwad Builders (J.V.) Nagpur Vs. State of Maharashtra & others. Paragraph nos. 7 and 8 of the said judgment reads as under:-

"7. Having considered the matter, we do not find any justification on the part of the respondent -VIDC in assessing the experience of Joint Venture by reducing the actual experience of constituents of the Joint Venture to the ratio of their investment and profit sharing. There is no correlation between the extent of investment of a partner in a Joint Venture and his experience. The two are entirely different things. It cannot be said that a partner's experience is affected in any way because he invests in the Joint Venture only to a certain extent. The attempt to correlate the two seems wholly unjustified and absurd.

Joint Ventures are commonly formed by two or more individuals with a view to pool their resources, skill, experience etc. in order to inter alia meet the eligibility criteria of tenders of specific projects. The fact that participation of the constituents of the Joint Venture is in a particular ratio cannot become a reason to whittle down and reduce the experience of the constituents. The partners, who constitute the Joint Venture, may agree to limit investment and profit sharing to a certain percentage. This does not mean that they have thereby agreed to have a limited experience. If in fact, a partner has certain amount of experience, that experience remains as a part of experience of a Joint Venture when the Joint Venture makes a bid and the ratio of investment and profit sharing are the factors, which have nothing to do with such experience.

In paragraph 10 of the judgment, it has been said as under:-

In view of above, we find that for judging the credentials of a Joint Venture, the past experience of the constituents of the Joint Venture will have to be taken into account to arrive at the experience of Joint Venture. Admittedly, in the present case, if that is considered and taken together, the experience of Joint Venture is more than 5433 Cum. of cement concrete work during one working season on any one work site and 12000 Cum. cement concrete works on all work sites as required by Sub Clause II of clause 2.9 reproduced supra."

However, the ratio of each case is related to the facts on which that decision has been given. In the case cited by the petitioner, the facts were that the bidder i.e. Atasha Ashirwad Builders (J.V.) Nagpur had applied in the capacity of a Joint Venture and what it was trying to project was the experience carried by each partner in the Joint Venture in their individual capacity, has to be pooled in. The Court held that the experience of each partner will be added when they have come up as a Joint Venture.

However, this is not the case at hand. The petitioner's experience of having done the work was in the capacity of a Joint Venture. In the present project, the petitioner has not applied as a Joint Venture but in capacity of a proprietorship firm. This benefit cannot be given to the petitioner.

Consequently, the writ petition stands dismissed.

The learned counsel for respondent nos.2, 3 & 4 Mr. S.S. Chauhan states that they shall not be finalizing the contract till Tuesday i.e. 26.11.2019 in order to enable the petitioner to move a special appeal.

Let a certified copy of this order be supplied today itself on payment of usual charges.