- (1.) LEAVE granted. The Respondent No. 2 State of Orissa, issued notice inviting tenders through e -procurement for construction of model school building at Madhapur under Sukinda Block in Jaipur District, Orissa. The approximate cost of the project was Rs. 280 lakhs.
(2.) THE Appellant and Respondent No. 1 submitted their bids. On opening of the technical bids, the bid of Respondent No. 1 was rejected. The Evaluation Committee was of the view that Respondent No. 1's bid was accompanied by joint venture agreement instead of a sub -contract. Since this was expressly barred, the bid was rejected. The Appellant's bid was found to be in compliance and accordingly the final bid was opened. The Respondent No. 1 filed the writ petition before the High Court of Orissa inter alia, praying for setting aside of the rejection of his bid and a declaration that the tender quoted by the Appellant was invalid. The main contention against the Appellant was that the Appellant firm did not have the necessary experience of five financial years in the past period in its own name. According to the Respondent the experience claimed by the Appellant was the experience of one of its partners who had adequate, experience to the extent of five years. This according to the Respondent, could not be taken as the experience of the partnership firm. This contention apparently found favour with the High Court which however held that vide Section 14 of the Partnership Act, 1932, the experience was not the property of the firm and observed as follows: "A plain reading of the provision leads us to an irresistible conclusion that any property of the individual partner cannot be the property of the partnership firm, unless a contrary intention appears. Experience of one partner namely, Ramesh has is also an asset and it can be termed as property, so his property cannot be taken to be the property of the partnership firm for the clear -cut provision of Section 14 of Partnership Act! In the view of the matter, opposite party, No. 5 does not have the requisite experience to be eligible to submit tender with respect to the work in question. Since the Petitioner and opposite party No. 5 are not eligible for different reasons, the entire tender process has to be set aside and direction should be given for re -tender."
(3.) ACCORDINGLY , the award of the contract in favour of the Appellant was set aside. The Appellant is in appeal against the said order. The only issue is whether the experience of one of the partners of the Appellant firm could have been treated to be experience of the firm itself and, therefore, whether the Appellant's bid was valid. Clause 111 (g) of the Detailed Tender Call Notice (DTCN) prescribes the following requirement or experience as follows: "111(g). The intending tenderer (s) should have executed similar nature of work worth 40% of the estimated cost put to tender during any three financial years of the last preceding five years. In case of contract spanning for more than one financial year, the break up of execution of work in each of financial year should be furnished need to be furnished by the bidder as per Schedule D. (Similar nature of works means construction of buildings inclusive of electrical installations and P.H. works.)";