ARUN PALLI,J. - (1.) The petitioner-M/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 (P-6), whereby the bid submitted by the petitioner, upon technical evaluation by the duly constituted committee, was rejected being non-responsive, and also dated 20.11.2020 (P-12), vide which even the representation against rejection of its bid has since been declined. A Mandamus is also prayed for, commanding the respondent-authorities 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.
(2.) 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 M/s B.G. Constructions Co. (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 E-tenders 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. As stipulated in the tender conditions, copies of experience/work completion 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 nonresponsive. 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 petitioner-concern, 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. However, as counsel for the respondent authorities, who appeared upon an advance notice, submitted, for the representation submitted by the petitioner was pending consideration and shall be disposed of, by passing a detailed order, the petition was disposed of by the Division 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:- "Now coming to the experience documents submitted by the bidder with tender criteria, it has been concluded that M/s A.G. Construction Co. has submitted only one document under 60% work experience head and rest of the experience documents uploaded is in the name of M/s B.G. Construction Co., which cannot be considered as per the experience criteria. Needless to say that M/s A.G. Construction Co. is claiming the experience as gained in partnership in deed in M/s B.G. Construction Co. only to the extent of the ratio of share as named by Ajay Kumar Garg as 50% which does not fulfill the experience criteria as laid down in terms and conditions discussed above. Furthermore, the judgments relied upon by M/s A.G. Construction Co. in his representation was examined by the technical evaluation committee and operating division in consultation with empanelled advocate of FCI and it was found that said judgment of Hon'ble High Court of Delhi passed in case of PK Delicacies Pvt. Ltd. Vs. UOI and the judgment of Hon'ble High Court of Indore, Madhya Pradesh, passed in case of Samrudha Buildcon Pvt. Lt. Vs. Indore Development Authority are judgments in personam and not judgment in rem. It is not out of place to mention that the Hon'ble High Court of Punjab and Haryana in CA-CWP-5 of 2017 (O&M) titled FCI Vs. M/s Daniel Masih Satprit Singh Bedi wherein the challenge was to the validity of the amendment incorporated by the FCI in MTF of contract division to the effect that in case of Partnership only the experience of the Firm will be reckoned and for the purpose the experience of individual partners will not be counted has upheld the said view point of the FCI and same has also been upheld by the Hon'ble Supreme Court of India. Needless to say that the said legal position established by the Hon'ble High Court of Punjab and Haryana and the Apex Court in the ibid judgment applies to present case also."
(3.) Thus, this petition.;