w w w . L a w y e r S e r v i c e s . i n



CRRC Corporation Ltd. v/s Metro-Link Express for Gandhinagar And Ahmedabad (Mega) Company Ltd.


Company & Directors' Information:- MEGA CORPORATION LIMITED [Active] CIN = L65100DL1985PLC092375

Company & Directors' Information:- MEGA CORPORATION LIMITED [Active] CIN = L01120DL1985PLC092375

Company & Directors' Information:- D-LINK (INDIA) LIMITED. [Active] CIN = L72900GA2008PLC005775

Company & Directors' Information:- CRRC INDIA PRIVATE LIMITED [Active] CIN = U74999UP2019FTC124626

Company & Directors' Information:- INDIA LINK LIMITED [Active] CIN = U74899DL1995PLC069339

Company & Directors' Information:- MEGA (INDIA) LTD [Amalgamated] CIN = U01132WB1982PLC035473

Company & Directors' Information:- METRO INDIA LIMITED [Active] CIN = U45201DL1996PLC306472

Company & Directors' Information:- A T EXPRESS INDIA LIMITED [Strike Off] CIN = U93030DL2009PLC193660

Company & Directors' Information:- METRO INDIA LIMITED [Not available for efiling] CIN = U27100DL1985PLC022417

Company & Directors' Information:- N R EXPRESS PRIVATE LIMITED [Active] CIN = U63040WB1999PTC089271

Company & Directors' Information:- G C LINK PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089603

Company & Directors' Information:- P J EXPRESS PRIVATE LIMITED [Strike Off] CIN = U63040WB1995PTC075515

Company & Directors' Information:- G M S EXPRESS PRIVATE LIMITED [Active] CIN = U64120KA2006PTC040159

Company & Directors' Information:- U C EXPRESS PRIVATE LIMITED [Strike Off] CIN = U64120MH2004PTC148038

Company & Directors' Information:- R R EXPRESS PRIVATE LIMITED [Active] CIN = U97000DL2014PTC267284

Company & Directors' Information:- S F EXPRESS PRIVATE LIMITED [Active] CIN = U64120DL2015PTC279322

Company & Directors' Information:- J. K. EXPRESS PRIVATE LIMITED [Strike Off] CIN = U63090GJ2012PTC070288

Company & Directors' Information:- D K G EXPRESS PRIVATE LIMITED [Strike Off] CIN = U15499UP1982PTC005721

Company & Directors' Information:- P AND G EXPRESS PRIVATE LIMITED [Strike Off] CIN = U64120MH2003PTC139461

Company & Directors' Information:- CRRC Corporation Limited [Active] CIN = F06271

    Special Civil Application No. 18439 of 2016

    Decided On, 18 November 2016

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MS. JUSTICE HARSHA DEVANI & THE HONOURABLE MR. JUSTICE A.S. SUPEHIA

    For the Petitioner: Mihir Thakore, Sr. Advocate with Galav C. Sharma, Advocate. For the Respondent: Kamal Trivedi, Sr. Advocate with S.K. Vishen, Caveator.



Judgment Text

Harsha Devani, J. (Oral)

1. The learned advocate for the petitioner has tendered draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.

2. By this petition under article 226 of the Constitution of India, the petitioner had initially challenged the letters No. IFB/MEGHA/RS/1 dated 15.10.2016 of the respondent addressed to the bidders whose first envelope (i.e. Initial Filter-cum-Qualification Requirement Bid along with Bid Security) had been evaluated and considering the Evaluation & Qualification as mentioned in the Bid document were found to be substantially compliant informing them that the opening of the Second Envelope called "Technical Bid" is scheduled at 14:30 hours (IST) on 19.10.2016; and has sought a declaration that the petitioner's CRRC is qualified at Initial Filter-cum-Qualification Requirement Bid for Tender MEGA/RS/1 dated 15.01.2016 for "Design, Manufacture, Supply, Installation, Testing, Commissioning of 96 numbers of Standard Gauge Cars and Training of Personnel" and that the CRRC Technical Bids be opened. Subsequently, the petitioner has amended the petition and has sought a further relief challenging the letter dated 02.11.2016, whereby the respondent had returned the bid security and technical bid of the petitioner as being substantially non responsive to the eligibility criteria prescribed in Bidding Documents as well as the Financial Bid of the petitioner.

3. The facts stated briefly are that the Metro-link Express for Gandhinagar and Ahmedabad (MEGA Company Ltd) is a Special Purpose Vehicle, jointly owned and controlled by Government of India and Government of Gujarat with a shareholding of 50% each. On 17.11.2014, the Ahmedabad Metro Rail Project Phase-I has been approved by the Government of India at a completion cost of Rs. 10,773 crores, including escalation cost of 7.5% per year. On 03.09.2015, the respondent - MEGA, through International Competitive Bidding selected General Engineering Consultant (GEC), (consortium of four renowned company, namely, M/s. Systra, M/s. RITES, M/s. OCG and M/s. AECOM) to provide independent expert professional advice regarding preparation of tender documents, evaluation of tender offers, approvals of various designs and supervision of construction works related to Ahmedabad Metro Rail Project, Phase-I. The project is named Ahmedabad Metro Rail Project, Phase-I, for which the respondent requires 96 Standard Gauge Cars (i.e. rolling stocks), which are being procured through International Competitive Bidding (ICB). The ICB is for "Design, Manufacture, Supply, Installation, Testing and Commissioning of 96 Numbers of Standard Gauge Cars and Training of Personnel". On 15.01.2016, the respondent issued a notice inviting tenders for "Design, Manufacture, Supply, Installation, Testing and Commissioning of 96 Numbers of Standard Gauge Cars and Training of Personnel". The bid was comprised of single stage three envelopes, i.e.,

(i) the first envelope called "Initial Filter-cum-Qualification requirement bid;

(ii) the second envelope called "technical bid" and

(iii) the third envelope called "price bid".

The bid documents were made available for purchase by prospective bidders. A total of sixteen bid documents were sold before the due date of submission of bids.

4. The petitioner, CRRC also purchased the bid documents and submitted its bid as a "Single Entity" considering itself to be having the requisite experience as claimed in Section-III, Evaluation and Qualification Criteria in the three envelopes as required under the tender. Pre-bid meetings were held in the presence of all the bidders and/or representatives of the bidders and in the said meetings, various issues were discussed and clarifications were sought amongst the MEGA, GEC and the bidders. Between 13.02.2016 and 13.05.2016, the respondent issued various amendments in the tender documents. Out of 16 parties, four parties viz. (i) Consortium of Bombardier Transportation India Pvt. Ltd. & Bombardier Transporter GmbH; (ii) M/s. Hyundai Rotem Company (HRC); (iii) Consortium of Alstom Transport India Ltd. & Alstom Transport SA; and (iv) the petitioner i.e. CRRC Corporation Limited, had submitted their bids.

5. The eligibility and qualification criteria regarding experience are set out in Clause 2.4 of the Bid documents. Clause 2.4.1 provides the "General Experience" and the requirement thereunder is "Experience in the role of prime contractor (single-entity or JV member), Subcontractor or management contractor for at least last ten (10) years starting 1st January, 2006". Clauses 2.4.2(a), 2.4.2 (b) and 2.4.2 (c) provide for requirement of specific experience as set out therein.

6. It is the case of the petitioner that it had filled the Form EXP-1, Form EXP-2(a), Form EXP-2(b) and Form EXP-2(c) with required documents with certificates as required in clauses 2.4.1, 2.4.2 (a), 2.4.2 (b) and 2.4.2 (c) respectively, under the tender. The petitioner has claimed the general experience as prime contractor for design, manufacture, supply, testing, training and commissioning of metro cars starting 2007 to 2013 giving the details of the contract Identification with certificate from the Employers of:

(i) BTS 48 Cars Projects for Bangkok Mass Transit System Public Limited

(ii) Mumbai Metro Line One project of M/s. Mumbai Metro One Pvt Ltd.

(iii) Brazil 30 EMUs Project of State Secretary of Transport of the state of Rio de Janerio (SETRANS)

(iv) Metro Rio Line 1a project of Concessao Metroviaria Do Rio De Janerio S.A. (Metro Rio) and

(v) Malaysia SCS EMU Project of Ministry of Transport Malaysia.

7. It is further the case of the petitioner that it also fulfils the specific experience as required in Section-III, clause- 2.4.2 (a) of two similar contracts that have been completed as a prime contractor for design, manufacture, supply, testing, training and commissioning of metro cars between 1st January, 2006 and Bid submission deadline and filled the details of similar contract information in Form EXP-2 (a) of the tender document along with notarial certificates from the employer. The petitioner has declared in the Form EXP-2 (a) that the bidder has successfully and satisfactorily completed and delivered two similar contracts of Tianjin 120 Metro Cars Project and Tehran Metro Project Vehicles. The employers of the said projects, namely, M/s. Tianjin Metro Company Ltd and M/s. Tehran Wagon Manufacturing Co. had issued certificates certifying that the 120 metro units and 455 metro cars which were purchased from M/s. Dalian Locomotive and Rolling Stock Co. Ltd. (CNR Group) and M/s. Changchun Railway Vehicles Co. Ltd. respectively had been delivered and running satisfactorily. It is the case of the petitioner that it also fulfils the Specific experience as required in Section-III, clause 2.4.2 (b) as a prime contractor for design, manufacture, supply, testing, training and commissioning of metro cars between 1st January, 2006 for the reasons set out in paragraph-11 of the memorandum of petition. It is further the case of the petitioner that it also fulfils the Specific experience as required in clause 2.4.2 (c) through its specialised subcontractor M/s. Toshiba Corporation and filled the details of the experience of M/s. Toshiba Corporation in key activity of design and manufacturing of three phase Propulsion Equipment (comprising Traction Converter-Inverter, Auxiliary Converter-Inverter and Traction Motor) for Metro Rolling Stock and the propulsion Equipment supplied and is in continuous satisfactory revenue operation for minimum five years in at least 200 cars and to substantiate its key activity experience, the full Contract identification in Form EXP-2 (c) was given with supporting experience certificates. The M/s. Toshiba Corporation claimed their experience in key activities as Joint Venture in TianJin-BinHai Railway Transit Second Stage and Dalian Metro Line 3 Second Stage and as Sub-contractor in Venezuela Caracas-Tuy Medio Line of the Autonom, Brazil Rio DE Janeiro State-Central 20 EMU pr, Cairo Line 2 and Cairo Line 3. The petitioner had also furnished Form EXP-2 (c) giving experience of its subcontractor M/s. Toshiba Corporation in the Key Activities. The M/s. Toshiba Corporation had successfully completed the supply of 420 cars into revenue operation against the minimum requirement of 200 cars as per the tender from 1st January, 2006 till bid submission deadline.

8. It is the case of the petitioner that before the merger of M/s. CSR Corporation Ltd and M/s. CNR Corporation Ltd., M/s. CSR Corporation Ltd. was having following subsidiaries under its full control

(i) Nanjing Puhzhen Co. Ltd.

(ii) Zhuzhou Electric Locomotive Co. Ltd. and

(iii) Qingdao Sifang Co. Ltd. and M/s. CRN Corporation Ltd. was having following subsidiaries under its full control

(i) Dalian Locomotive Rolling Stock Co. Ltd.

(ii) Changchun Railway Vehicles Co. Ltd. and

(iii) Tangshan Railway Vehicle Co. Ltd.

9. It is the case of the petitioner that apart from the above subsidiaries of M/s. CSR Corporation Ltd. and M/s. CNR Corporation Ltd., it was also having other subsidiaries under its full control and supervision but their names are not given here as their experience was not taken in the present bid.

10. It is averred in the petition that the respondent after opening of the first Envelope "Initial Filter-cum-Qualification Requirement Bid", raised sixteen questions bearing Nos. 001 to 016 vide its letter dated 09.06.2016 having reference No. IFB No. MEGA/RS/1 and required the petitioner to submit its response with necessary documents by 20.08.2016. The respondent first sought clarification on General Experience in reference to Clause No. 2.4.1 and asked CRRC to clarify and elaborate General Experience with supporting documents as the finding of the scrutiny showed that the bidder had claimed general experience from 2007 to 2013 in Form EXP-1 against tender requirement of ten years starting from 1st January, 2006. In response thereto, the petitioner submitted a clarification to the effect that it has long experience in undertaking projects of rolling stock and submitted a revised Form EXP-1 wherein some more projects for the period 2006 to 2016 had been incorporated. The petitioner as prime contractor claimed to have performed the works of design, manufacture, testing, supply, commissioning and training for contract for procurement of vehicles for Dalian Rapid Rail Transportation Line No.3. The Employer M/s. Dalian Modern Railway Transportation Co. Ltd. had awarded the contract in the year 2004 and it ended in the year 2008. The petitioner had also mentioned two on-going contracts which are awarded by Indian Railways and Delhi Metro Rail Corporation Ltd in the year 2015 and 2016 for design, development, manufacture, testing, supply, commissioning and training for Kolkata and Noida-Greater Noida Metro Project. According to the petitioner, by virtue of the revised Form EXP-1 it meets with the requirements of General Experience as required in 2.4.1 for at least last ten years starting from 1st January, 2006.

11. The respondent also sought further clarification in the form of questions No. 2 and 3 on Clause 2.4.2 (a) from the petitioner regarding relationship of M/s. CRRC with M/s. Dalian Locomotive and Rolling Stock Co. Ltd (CNR Group) and Type of Propulsion System (i.e. 3 phase traction propulsion system or otherwise) with technical features for Tianjin 120 metro cars. The petitioner clarified that "As mentioned in Vol.1, attachment of Form FIN-1: Financial Situation, it is reconfirmed that on 1st June, 2015 CSR Corporation Ltd. and CNR Corporation Ltd was merged and CRRC Corporation Ltd was formed by merging these two companies. After this merger, all rolling stock manufacturers belonging to both CSR Corporation Ltd and CNR Corporation Ltd became the subsidiaries of CRRC Corporation Ltd. CRRC Corporation Ltd., therefore, became the legal owner of these subsidiaries, including their assets, liability, and experience. M/s. Dalian Locomotive and Rolling Stock Co. Ltd (CNR Group) is now the subsidiary of CRRC Corporation Ltd and its new name is M/s. CRRC Dalian Co. Ltd. The Tianjin 120 Metro Cars project was executed by M/s. Dalian Locomotive and Rolling Stock Co. Ltd and this being now the subsidiary of CRRC Corporation Ltd, the experience certificate of M/s. Dalian Locomotive and Rolling Stock Co. Ltd has been included as part of the experience of CRRC Corporation Ltd.

12. The respondent had also sought clarification about the relationship of CRRC Corporation Ltd with M/s. Changchun Railway Vehicle Company Ltd. and information needed to be submitted by the bidder in respect of Tehran 455 Metro car project (lines 1 and 2 project) in the required format with supporting documents. In response to said question, the petitioner issued a clarification that after the merger, M/s. Changchun Railway Vehicle Company Ltd. had become the subsidiary of CRRC, as such, the experience certificate of Changchun Railway Vehicle Company Ltd. has been included as part of its experience.

13. The respondent further sought clarification in the form of questions No. 4 and 9 on Clause 2.4.2 (b) from CRRC about the relationship of M/s. Changchun Railway Vehicle Company Ltd, M/s. CSR Nanjing Puzhen Co. Ltd and M/s. CSR Zhuzhou Electric Locomotive Co. Ltd. with CRRC along with supporting documents. The petitioner submitted its response stating that the above referred companies were the subsidiaries of what was formerly CSR Corporation Ltd and later on its name was changed to CRRC Corporation Ltd after the merger of CSR Corporation Ltd and CNR Corporation Ltd. M/s. Changchun Railway Vehicle Co. Ltd after the merger became the subsidiary of CRRC and its name was changed to CRRC Changchun Railway Vehicle Co. Ltd. Other clarifications were also sought for by the respondent as set out in the memorandum of petition, however, with a view to avoid prolix the same are not referred to at this stage.

14. It is the case of the petitioner that in order to strengthen and fortify its claim for Initial Filter-cum-Qualification Requirement, it submitted another letter on 06.10.2016 to the respondent agitating that CRRC has the legal right to use all the experiences of its subsidiary companies for meeting the qualifying requirements and to show that it has been accepted by Delhi Metro Rail Corporation Ltd and Nagpur Metro Rail Corporation Ltd in tender No. NRS1 for Noida - Greater Noida Metro project and N1RS-1/2016 for Nagpur Metro Rail project, respectively. That both the above named Metro companies are the joint ventures of Ministry of Urban Development; Government of India with the respective State Government and it had been qualified as a bidder based on the experience of its subsidiaries for both the projects.

15. It is further averred in the petition that as per ITB 27.8 of the Tender documents, the Employer i.e. respondent herein will notify, in writing, Bidders who have been rejected on the grounds of their "Initial Filter-cum-Qualification Requirement Bid" being substantially non-responsive to the requirements of the Bidding Documents. However, the respondent (sic. Petitioner) has not been served with any rejection order of CRRC's Initial Filter-cum-Qualification Requirement Bid till 17.10.2016. However, on or about 20.10.2016, CRRC's representative office, to its utter shock and dismay, received a caveat filed in the High Court of Gujarat from the Advocate of the respondent in connection with Letter/Order No. IFB no. MEGA/RS/1 dated 15.10.2016 in the matter of the tender in question. The petitioner, therefore, approached this court challenging the letter dated 15.10.2016, which found mention in the caveat application. Subsequently, it was found that the respondent had addressed three letters, all dated 15.10.2016, informing all the three bidders, viz., (i) Consortium of Bombardier Transportation India Pvt. Ltd. & Bombardier Transportation GmbH; (ii) M/s. Hyundai Rotem Company (HRC); and (iii) Consortium of Alstom Transport India Ltd. and Alstom Transport SA, inter alia, informing them that the first envelope had been evaluated considering the evaluation and qualification criteria and they had been found to be substantially compliant and were further informed to remain present during the opening of second envelope called "Technical Bid" on 19.10.2016.

16. It is the case of the respondent that on 02.11.2016, it had informed the petitioner that the Initial Filter-cum-Qualification Requirement was evaluated and it was found to be substantially non-responsive to the requirements of eligibility criteria and by the said letter, the respondent returned the unopened technical bid and bid security to the petitioner. Pursuant to the same, the petitioner moved a draft amendment challenging the letter dated 02.11.2016. However, it is the case of the petitioner that it had received the email only on 03.11.2016. Pursuant thereto, the petitioner had moved a draft amendment challenging the letter dated 02.11.2016, which came to be allowed and the petition came to be amended accordingly.

17. Mr. Mihir Thakore, Senior Advocate, learned counsel with Mr. Galav Sharma, learned advocate for the petitioner submitted that by the impugned communication, the petitioner has been basically disqualified on two grounds, viz., initially, it had submitted the documents showing its experience from 2007 instead of 2006 and that they had not given experience of bidder alone, but of the bidder and its subsidiaries, though they were not consortium members. It was submitted that upon scrutiny of the documents, the respondent, having regard to the fact that the documents with regard to experience tendered by the petitioner showed experience of eight years instead of ten years, could at that stage itself, have disqualified the petitioner, instead they sought explanation/clarification from the petitioner with regard to the general experience with supporting documents to meet with the tender requirement. It was submitted that pursuant thereto, requisite details were provided showing experience from 2006 to 2016 before the specified date. Under the circumstances, the fact that initially the petitioner had not provided documents showing ten years' experience becomes irrelevant and inconsequential. It was submitted that the experience shown by them is not only of the two original/parent companies upon the merger of which the petitioner came into existence, but also the experience of their subsidiaries. It was submitted that in this regard, a clarification/explanation was sought for by the respondents, in response to which, the petitioner had pointed out that CSR Corporation Ltd. and CNR Corporation Ltd. were merged and CRRC Corporation Ltd. was formed by merging of these two companies. After this merger, all rolling stock manufacturers belonging to both CSR Corporation Ltd. and CNR Corporation Ltd. became subsidiaries of CRRC Corporation Ltd. The petitioner CRRC Corporation Ltd., therefore, became the legal owner of these subsidiaries, including their assets, liabilities and experience. It was submitted that when the respondent sought clarification on this aspect, it was well aware that a single entity had submitted a bid, in these circumstances, there was no question of asking for an explanation. It was contended that the fact that the respondent had asked for this clarification shows that it was inclined to accept the experience of these companies provided they were subsidiaries. Otherwise, it would not have asked for these clarifications. It was submitted that when a 100% subsidiary wants to bid the position would be different as it does not control the principal and not vice versa. It was urged that in under identical circumstances, in respect of two metro railways, the petitioner has been successful. Reference was made to question-13 (page 498) to submit that the petitioner had duly submitted its clarification in that regard.

17.1. To bolster his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of New Horizons Limited and another v. Union of India and others, (1995) 1 SCC 478, wherein the court has observed that even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22.04.1993 inviting tenders was a condition about eligibility for consideration of the tender, it found no basis for the same and that the said requirement regarding experience could not be construed to mean that the said experience should be of the tenderer in his name only. The court observed that 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. This 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 reorganization 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 reorganized company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganized 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 reorganized company which does not have experience in its name. The court observed that while considering the requirement regarding experience, it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract where under some work is to be performed, he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company, he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would not go by the name of the company, but by the persons behind the company.

17.2. Reliance was placed upon the decision of the Supreme Court in the case of Ganpati RV-Tallers Alegria Track Private Limited v. Union of India and another, (2009) 1 SCC 589, wherein the court followed its earlier decision in the case of New Horizons Limited and another v. Union of India and others (supra) and held that the view taken by the High Court that the appellant therein did not fulfil the eligibility criteria was not correct. The decision of the Bombay High Court in the case of Atasha Ashirwad Builders (J.V.), Nagpur v. State of Maharashtra and others, 2011 (1) Mh.L.J. 282, was cited, wherein, the court held that 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. The court placed reliance upon the decision of the Supreme Court in the case of New Horizons Limited and another v. Union of India and others (supra) and held 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.

17.3. Reference was made to the decision of the Bombay High Court (Nagpur Bench) in Writ Petition No. 5818 of 2016, rendered on 5th October, 2016 (Annexure "A" to the petition), which was a case relating to Nagpur Metro Rail Project, wherein a contention was raised that the petitioner did not have the requisite experience as required under the tender documents of its own, but was relying upon the experience of its subsidiary. The court took into consideration the fact that the Tender Evaluation Committee had evaluated the documents with regard to the technical qualification of the petitioner therein as well as the respondent No.2 therein (petitioner herein) and noted that the petitioner herein was formed in June, 2015 by merger of CRC Corporation Limited and CNR Corporation Limited and the documents relating to the merger had been submitted along with the bid. The court observed that from the documents placed on record, the decision making process of the Technical Evaluation Committee had been guided by the relevant factors and it cannot be said that they had not taken into consideration any of the relevant factors and therefore, was of the view that the decision of the Technical Evaluation Committee would fall within the ambit of rationality. The court was of the view that the limited enquiry that would be permissible was as to whether the decision making process was vitiated on the ground of irrationality, arbitrariness etc. or not and ultimately, dismissed the petition.

17.4. The learned counsel for the petitioner further submitted that when the holding company which owns the subsidiaries is making a bid, then the subsidiaries are fully controlled by the holding company and the complete experience of the subsidiaries can be looked into for the purpose of considering the experience of the holding company. According to the learned counsel, the experience of all the subsidiaries would be the experience of the holding company. It was submitted that in the facts of the present case, the decision of the Supreme Court in the case of New Horizons Limited and another v. Union of India and others (supra) would be directly applicable and from the standpoint of a businessman, the experience of the subsidiaries companies has to be taken into consideration. It was submitted that therefore, the Initial Filter-cum-Qualification Requirement Bid of the petitioner could not have been termed as non-responsive by the respondent.

17.5. The attention of the court was invited to clause BDS/ITB 27.8 [which falls under Section II of the Tender Document under the heading Bid Data Sheets], to point out that in terms thereof, the respondent was required to intimate the petitioner about its Initial Filter-cum-Qualification Requirement Bid being non-responsive and the reasons therefor. However, in the present case, the respondent did not intimate the petitioner about the rejection of its Initial Filter-cum-Qualification Requirement Bid and that the petitioner only received a caveat on 17.10.2016 which mentioned the order dated 15.10.2016. It was submitted that accordingly, this writ petition was filed on 03.11.2016 under the impression that the letter dated 15.10.2016 related to disqualification of the petitioner at the Initial Filter-cum-Qualification Requirement Bid and that it was only on 03.11.2016 at 05:51 p.m., that the representative of the petitioner was informed about its Initial Filter-cum-Qualification Requirement Bid being non-responsive. It was submitted that therefore, the legal right of the petitioner has been violated as it has not been intimated by any letter that its bid was non-responsive and the letters were sent to the other bidders on 15.10.2016, whereas the letter informing the petitioner about its bid being non-responsive was sent to it only on 02.11.2016. Referring to the communication dated 02.11.2016, the learned counsel submitted that no reasons are assigned therein and that the reasons have come forth only in the reply.

17.6. Reference was made to the decision of the Supreme Court in the case of M/s. Star Enterprises and others v. City and Industrial Development Corporation of Maharashtra Ltd. and others, (1990) 3 SCC 280, wherein the court was considering the question as to whether when the highest offer in response to an invitation is rejected, would not the public authority be required to provide reasons for such action. The court held that when the highest offers of the type in question are rejected, reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so. It was submitted that the respondent has styled the email as dated 02.11.2016 only with a view to mislead not only the petitioner but also this court and that in fact the two emails have been forwarded only on 03.11.2016, out of which one email stated that the bid security, unopened technical bid and unopened financial bid of the petitioner are being returned meaning thereby that the petitioner is disqualified from participating in the further tender process. It was submitted that it was the duty of the respondent to communicate the reasons for holding that the petitioner's Initial Filter-cum-Qualification Requirement Bid to be non-responsive, particularly in the light of clause ITB 27.8 and that the action of the respondent is, therefore, arbitrary, unreasonable and discriminatory and violative of the fundamental rights of the petitioner. Under the circumstances, the petition deserves to be admitted and the interim relief, as prayed for, deserves to be granted.

18. Vehemently opposing the petition, Mr. Kamal Trivedi, Senior Advocate, learned counsel with Ms. Sangeeta Vishen, learned advocate for the respondent, submitted that the decision of the Supreme Court in the case of New Horizons Limited and another v. Union of India and others (supra) on which strong reliance has been placed on behalf of the petitioner relates to the case of a joint venture. It was submitted that a joint venture is not barred from making an offer and that in case of a joint venture, the experience of its constituents must be taken into consideration; however, insofar as the subsidiaries are concerned, unless they are constituents of the joint venture, their experience cannot be taken into consideration for the purpose of considering the experience of the holding company. The attention of the court was invited to the paragraph 26 of the above decision, wherein the court has held that "Once it is held that New Horizons Ltd. is a joint venture, as claimed by it in the tender, the experience of its various constituents, namely, TPI, LMI and WML as well as IIPL had to be taken into consideration if the Tender Evaluation Committee had adopted the approach of a prudent businessman". It was submitted that in the present case, if the petitioner wanted to take the benefit of the experience of its subsidiaries, it should have applied either as a joint venture or as a consortium together with its subsidiaries.

18.1. In support of such submission, the learned counsel placed reliance upon the decision of the Delhi High Court in the case of Rohde and Schwarz Gmbh and Co. Kg v. Airport Authority of India and another, 207 (2014) DLT 1, wherein the controversy involved was, whether the petitioner was entitled to claim the experience of its subsidiary as its own for the purposes of meeting the specified eligibility criteria for participating in the tender in question. The court, after taking into consideration the decision of the Supreme Court in the case of New Horizons Limited v. Union of India (supra), held that in order to fall within the test as laid down therein, it would be necessary for a bidder to show that it has the relevant experience, however, the same may not be recorded in its name. It is not open for a bidder to claim experience of another entity as its own experience. The court observed that the instances given by the Supreme Court are cases where the bid is submitted by a partnership firm in which case the entities submitting the bid are essentially the partners and therefore, the experience of partners becomes relevant. Joint venture companies formed for a specific purpose are also akin to partnerships although in an incorporated form. In cases of mergers or amalgamations, the resources of the companies are pooled although the amalgamating company loses its corporate name and identity which merges with the identity of the amalgamated company. In such cases, in essence, the bidder continues to be an erstwhile company although the experience may not be in the name of the amalgamated company. The court observed that in all the examples given in the said decision, the vital test which has to be met is that the bidder must in fact have the requisite experience although for some reason, it may not be available in his name. In the facts of the said case, the court held that the bidder was the petitioner therein and the benefit of experience which was being claimed was that of a completely different entity. Although the petitioner therein may have acquired a majority stake in that entity, the same does not automatically translate the experience of such entity as that of the petitioner.

18.2. Reliance was also placed upon the decision of the Patna High Court in the case of Core Projects and Technologies Ltd. v. The State of Bihar, 2011 (59) BLJR 183, wherein the court held that as per definition, the word "affiliate" refers to the subsidiary company of a holding company, but there is no provision in the tender notice which may lead to the conclusion, explicitly or impliedly, that for the project at hand, the experience of the subsidiary company may be taken into account as experience of the holding company. The learned counsel drew the attention of the court to the fact that against the above decision, the petitioner therein had approached the Supreme Court in Special Leave to Appeal (Civil) No. 24796 of 2010 and that the Supreme Court, by an order dated 11.09.2013, dismissed the SLP by observing that it found from the bid documents that only an individual organization could submit a bid and hence, experience of a subsidiary could not be taken into consideration and therefore, the respondents had rightly excluded the experience of the subsidiary company while considering the bid of the petitioner company. It was submitted that this decision of the Supreme Court would be squarely applicable to the facts of the present case and therefore, the respondent was wholly justified in excluding the experience of the subsidiary company while considering the bid of the petitioner.

18.3. The learned counsel for the respondent also referred to various shortcomings in the details provided by the petitioner while submitting the bid document which have been set out in the affidavit-in-reply of the respondent. However, considering the view that the court is inclined to take in the matter, it is not necessary to delve into the same in detail.

18.4. As regards the contention raised on behalf of the petitioner that in view of ITB 27.8, the respondent was obliged to intimate the petitioner about its Initial Filter-cum-Qualification Requirement Bid being non-responsive, it was submitted that the said clause does not put any time limit for intimating the party concerned, nor does the same mandate that the respondent has to provide reasons. It was submitted that the respondent employer had notified the petitioner about its Initial Filter-cum-Qualification Requirement Bid being nonresponsive on 02.11.2016. It was submitted that ITB 27.8 is required to be read with ITB 42.5, which provides that "after notification of award, unsuccessful Bidders may request, in writing, to the Employer a debriefing seeking explanations on the grounds on which their Bids were not selected. The Employer shall promptly respond, in writing, to any unsuccessful Bidders who, after the notification of award in accordance with ITB 42.1, request a debriefing". It was submitted that this exercise has to be carried out after the notification of the award so as not to delay the tender process.

18.5. The learned counsel also pointed out that various queries had been raised during the course of tender process calling for certain clarifications. The attention of the court was invited to the statement at Annexure "I" to the affidavit-in-reply (page 606-A) to point out that as against the Tenderer's Query regarding "existing requirement that the consortium members experience shall only be counted for qualification" and request to "allow parent companies'/group companies' experience to be taken into account for meeting the qualification requirement as this will simplify the contract structure and that the same has been allowed in several large tenders in India recently", the response given by the respondent was that, "the subsidiary company/group company may bid together with the parent company as a JV/Consortium member for parents/group company experience to be taken into account. The tender conditions prevail." It was further pointed out that as against a Tenderer's Query with regard to acceptance of letter of credit facility issued by the bank in favour of JV/Consortium of companies belonging to the same global group of companies rather than individual cap in case the applicant is JV/Consortium, the response given by the respondent was that, each member of JV/Consortium is a separate entity with a distinct role assigned as per MOU and therefore, the requirements are specified. The tender conditions prevail. As against a Tenderer's Query that "For a proper local management, we suggest you to kindly allow a fully owned Indian subsidiary can use the data and references of their parent company and participate to tender on its own and or as consortium with parent company borrowing the technical and financial credentials of the parent company" the response/clarification was that the subsidiary company/group company may bid together with the parent company as a JV/consortium member for Parents/group company experience to be taken in to account. Each member must meet the requirement." It was submitted that therefore, it was duly clarified by the respondent that if a bidder applies as a single entity, only its experience will be considered and that, to meet with the experience criteria, they can join subsidiaries as a consortium.

19. Various other contentions were raised by the learned counsel, which for the reasons that follow, are not required to be dealt with.

20. At the outset, it may be noted that vide order dated 07.11.2016, this court had recorded that the petitioner does not press the reliefs claimed for vide paragraphs 41(A), (B) and (D) on the assumption that the letter dated 15.10.2016 does not pertain to disqualification of the petitioner. What is principally under challenge, therefore, is the communication dated 02.11.2016 whereby the petitioner has been informed that its Initial Filter-cum-Qualification Requirement Bid is nonresponsive.

21. As noted herein above, as per the case put forth by the respondent, the petitioner is liable to be disqualified on other grounds in addition to its not meeting with the eligibility criteria regarding experience. However, one crucial aspect of the matter is that, admittedly, the petitioner, on a standalone basis, (viz., the petitioner together with the parent companies, upon the merger of which it has been formed), does not possess the requisite experience as laid down in the tender conditions and it is only if the experience of its subsidiaries is considered to be the experience of the petitioner, that the petitioner meets with the eligibility criteria regarding experience. On behalf of the petitioner, the learned counsel has submitted that it is principally on the adjudication of the question as to whether the experience of the subsidiaries can be taken into consideration while examining as to whether the petitioner meets with the eligibility criteria regarding experience, that the petitioner would either succeed or fail. The entire case, therefore, principally hinges on whether the experience of the subsidiary companies of the petitioner can be taken into consideration.

22. For the purpose of better appreciating the controversy in issue, it may be germane to refer to certain clauses of the Tender Document as are relevant for the present purpose. Section III of the tender document provides for, "Evaluation and Qualification Criteria". Clause 2.4 thereunder, which provides for "Experience", reads thus :

2.4 Experience

2.4.1 General Experience

Experience in the role of prime contractor (single entity or JV member), Subcontractor, or management contractor for at least last ten (10) years starting 1st January, 2006.

2.4.2 Specific Experience

(a) A minimum number of two (2) similar contracts that have been satisfactorily and substantially completed as a prime contractor (single entity or JV member) between 1st January, 2006 and the Bid submission deadline.

2.4.2

(b) Specific Experience

Experience under contracts in the role of prime contractor (single entity or JV member) for Vehicle Design, Interface (with other designated Contractors such as signalling, Track, Traction, etc.), Assembly and Supply, Testing and Commissioning of minimum of total 150 metro (i.e. MRT, LRT, Sub-urban Railways or high speed railways) cars made of either Stainless Steel or Aluminium, with similar features including three phase traction propulsion system, ATP/ATO systems, etc. between 1st January, 2006 and the Bid submission deadline.

And

Out of 150 or more cars supplied and commissioned as above, have minimum of total 75 metro (i.e. MRT, LRT, Sub-urban Railways or high speed railways) cars supplied and in satisfactory revenue operation continuously for at least five years :

Either in at least 1 (one) country outside the country of origin OR in India

2.4.2

(c) Specific Experience

For the above or other contracts completed and under implementation as prime contractor (single entity or JV member), management contractor or Subcontractor(vi) (OR by proposed subcontractor) between 1st January, 2006 and the Bid submission deadline, a minimum experience in the following key activities;

(i) Cumulative experience of minimum ten (10) years in the design and manufacturing of three phase Propulsion Equipment (comprising Traction Converter-Inverter, Auxiliary Converter-Inverter and Traction Motor) for Metro Rolling Stock.

(ii) The Propulsion Equipment supplied must have been in continuous satisfactory revenue operation for minimum five years in at-least 200 cars, supplied in two Metros (i.e. MRT, LRT, Sub-urban Railways or High Speed Railways), and at least one metro in the country other than country of manufacture or in India

23. For the purpose of contending that the experience of the subsidiary companies has to be taken into consideration while considering as to whether or not the petitioner (viz. the holding company) possesses the requisite experience as set out herein above, on behalf of the petitioner, strong reliance has been placed upon the decision of the Supreme Court in the case of New Horizons Limited v. Union of India (supra), wherein it has been held thus :

"23. Even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22-4-1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. 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 borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract where under some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment. The advertisement dated 22-4-1993 when read with the notice for inviting tenders dated 26-4-1993 does not preclude adoption of this course of action. If the Tender Evaluation Committee had adopted this approach and had examined the tender of NHL in this perspective it would have found that NHL, being a joint venture, has access to the benefit of the resources and strength of its parent/owning companies as well as to the experience in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies namely, TPI, LMI, WML, etc. and Mr. Aroon Purie and 40% of the share capital is owned by IIPL a wholly-owned subsidiary of Singapore Telecom which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories. Moreover 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.

24. The expression "joint venture" is more frequently used in the United States. It connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement, to share both in profit and losses. (Black's Law Dictionary, 6th Edn., p. 839) According to Words and Phrases, Permanent Edn., a joint venture is an association of two or more persons to carry out a single business enterprise for profit (p. 117, Vol. 23). A joint venture can take the form of a corporation wherein two or more persons or companies may join together. A joint venture corporation has been defined as a corporation which has joined with other individuals or corporations within the corporate framework in some specific undertaking commonly found in oil, chemicals, electronic, atomic fields. (Black's Law Dictionary, 6th Edn., p. 342) Joint venture companies are now being increasingly formed in relation to projects requiring inflow of foreign capital or technical expertise in the fast developing countries in East Asia, viz., Japan, South Korea, Taiwan, China, etc. [See Jacques Buhart : Joint Ventures in East Asia - Legal Issues (1991).] There has been similar growth of joint ventures in our country wherein foreign companies join with Indian counterparts and contribute towards capital and technical know-how for the success of the venture. The High Court has taken note of this connotation of the expression "joint venture". But the High Court has held that NHL is not a joint venture and that there is only a certain amount of equity participation by a foreign company in it. We are unable to agree with the said view of the High Court.

25. As noticed earlier, in its tender NHL had stated that it is a joint venture company established by TPI, LMI and WML and IIPL wherein TPI, LMI and WML and other companies in the same group as well as Mr. Aroon Purie own 60% shares and IIPL owns 40% shares. It was also stated that the joint venture has received approval of the Government of India and is currently in operation and that the promoter will increase their capital/contribution to commensurate with the project need and that the company has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information. In the tender it is also stated that as a joint venture in the true sense of the phrase, the company will have access to expertise in database management, sales and publishing of its parent group companies. It would thus appear that the Indian group of companies (TPI, LMI and WML) and the Singapore-based company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and organisation at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of companies jointly undertaking a commercial enterprise wherein they will all contribute assets and will share risks and have a community of interest. We are, therefore, of the view that NHL has been constituted as a joint venture by the group of Indian companies and IIPL, the Singapore-based company and it would not be correct to say that IIPL which has a substantial stake in the success of the venture, having 40% of shareholding, is a mere shareholder in NHL.

26. Once it is held that NHL is a joint venture, as claimed by it in the tender, the experience of its various constituents namely, TPI, LMI and WML as well as IIPL had to be taken into consideration if the Tender Evaluation Committee had adopted the approach of a prudent businessman."

24. Thus, the Supreme Court has held that while considering the requirement regarding experience, it has to be borne in mind that the said requirement is contained in the document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract where under some work is to be performed, he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company, he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work.

25. Thus, the question as to whether or not the experience of its subsidiaries can be said to be the experience of the petitioner, has to be examined from the point of view of a prudent business man. In the opinion of this court, a prudent businessman before entering into a contract, would look into the background of the company and the persons who are in control of the same and their capacity to execute the work and not the persons whom the company controls and the capacity of such persons to execute the work. Thus, while the holding company may control the subsidiary company, which in turn may have the requisite experience, it is not the subsidiary company which is going to execute the work, and the employer will not get the benefit of its experience. Therefore, a prudent businessman would ensure that it is the person with whom he enters into the contract has the necessary experience as it is such person who is obliged to and responsible for executing the contract. Since the subsidiary company, though controlled by the holding company, would have no role to play in the execution of the contract, its experience is irrelevant insofar as the employer is concerned.

26. When the employer asks for certain experience, it is for the reason that he wants persons possessing such experience to be executing the contract. The relevance of providing for the eligibility criteria of experience of the bidder would be that it is the experience of the bidder, viz., as a separate entity (in which case the experience of entity) or as a joint venture or consortium (in which case the experience of each constituent of the joint venture or consortium) which would be available to the contractor/tenderer while executing the contract. Since the subsidiaries have a separate identity from that of the holding company, they ipso facto, by virtue of their being subsidiaries of the holding company, do not become party to the contract nor are they in any manner liable to the employer for executing the contract, therefore, the employer cannot claim the benefit of their experience in the execution of the contract. Whereas in case of a joint venture or a consortium of different companies/persons, each of the constituents of such joint venture or consortium, would be liable for the execution of the contract and the benefit of their experience would be available while executing the contract. Therefore, the fact that the subsidiaries have the requisite experience would be of no avail to the employer as he cannot claim the benefit thereof. In these circumstances, the mere fact that the subsidiaries are wholly owned or controlled by the holding company is immaterial insofar as the employer is concerned.

27. The Supreme Court in the case of New Horizons Limited v. Union of India (supra) has observed that the expression "joint venture" connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement, to share both in profit and losses. Thus, all the constituents of the joint venture share a community of interest in the performance of the subject-matter and contribute assets and share risks. Therefore, the experience of the constituents of the joint venture is relevant and taken into consideration while considering the experience of the joint venture company.

28. The Supreme Court in New Horizons Limited (supra) has also held that the requirement of experience cannot be construed to mean that the said experience should be of the tenderer in his name only. 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 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 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. Viewed in the light of the above principles, the petitioner, CRRC Corporation Limited would be entitled to have the experience of its parent companies, viz., CSR and CNR taken into consideration as they are the parent companies upon merger of which, the petitioner has come into existence and the petitioner has the benefit of the experience of both the parent companies while executing the contract. However, insofar as the subsidiary companies are concerned, they are neither parent companies of the petitioner, nor do they have any community of interest in the contract, inasmuch as they are neither constituents of a joint venture, nor members of a consortium together with the petitioner. Therefore, the experience of its subsidiaries cannot be taken into consideration while considering the experience of the petitioner.

29. It may be recalled that it is an admitted position that if the experience of its subsidiaries is not taken into account, the petitioner does not possess the requisite experience as provided under the tender conditions and consequently, does not satisfy the basic eligibility conditions. Therefore, it cannot be said that the stand of the respondent that the petitioner is not qualified in the Initial Filter-cum-Qualification Requirement suffers from any legal infirmity.

30. Moreover, it is not as if the petitioner's Initial Filter-cum-Qualification Requirement Bid has arbitrarily been considered to be non-responsive at the ipse dixit of a particular officer. As delineated in the affidavit in reply of the respondent, the respondent has pointed General Engineering Consultant to provide expert professional advice regarding preparation of tender documents, evaluation of tender offers, etc. It is GEC which after evaluating the bids that has found that the petitioner does not possess the requisite experience.

31. Insofar as the contention that in case of two other metro projects, under similar circumstances, the petitioner's bid has been accepted by taking into consideration the experience of the subsidiaries is concerned, what the court is required to examine is the validity of the decision of the respondent on the touchstone of the conditions contained in the tender documents. Once the scrutiny carried out by the respondent is found to be in accordance with the tender conditions, merely because in some other project for reasons best known to those parties, the petitioner has been held to be qualified, the action of the respondent cannot be held to be bad.

32. Insofar as non-intimation of its Initial Filter-cum-Qualification Requirement Bid being non-responsive to the petitioner, immediately after such decision came to be taken is concerned, in the opinion of this court, the respondent ought to have ensured that the petitioner was informed at the ea

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rliest. On behalf of the respondents, reliance has been placed upon ITB 42.5 to submit that it is only after the notification of the award that the unsuccessful bidders are entitled to the reasons for their bid not being accepted. Having regard to the fact that this court has found that the petitioner does not satisfy the necessary eligibility criteria of experience as for the purpose of experience, the petitioner has placed reliance upon the experience of its subsidiaries, it is not necessary to dilate upon any interpretation of ITB 42.5. In view of the fact that even if there is some irregularity in not intimating the petitioner expeditiously about its Initial Filter-cum-Qualification Requirement Bid being non-responsive, that would not detract from the fact that the petitioner does not possess the requisite experience as provided under the tender documents. 33. The above view taken by this court is reinforced by the view adopted by the Delhi High Court in the case of Rohde and Schwarz Gmbh and Co. Kg v. Airport Authority of India (supra), wherein the court has held thus: "24. In order to fall within the test as laid down in the case of New Horizons (supra) it would be necessary for a bidder to show that it has the relevant experience, however, the same may not recorded in its name. It is not open for a bidder to claim experience of another entity as its own experience. The instances given by the Supreme Court are cases where the bid is submitted by a partnership firm in which case the entities submitting the bid are essentially the partners and therefore the experience of partners becomes relevant. Joint venture companies formed for a specific purpose are also akin to partnerships although in an incorporated form. In cases of mergers or amalgamations the resources of the companies are pooled although the amalgamating company loses its corporate name and identity which merges with the identity of the amalgamated company. In such cases, in essence, the bidder continues to be an erstwhile company although the experience may not be in the name of the amalgamated company. In all the examples given in the decision of New Horizon (supra) the vital test which has to be met is that the bidder must in fact have the requisite experience although for some reason it may not be available in his name. In the present case the bidder is the petitioner and the benefit of experience which is being claimed is that of a completely different entity. Although the petitioner may have acquired a majority stake in that entity, the same does not automatically translate the experience of R&S Topex as that of the petitioner." 34. The decision of the Supreme Court in Core Projects and Technologies Ltd. v. The State of Bihar (supra) wherein it has been held that the experience of a subsidiary could not be taken into consideration where only an individual organization would submit a bid and the exclusion of the subsidiary while considering the bid of the petitioner was justified would, in the opinion of this court, be squarely applicable to the facts of the present case. 35. The respondent, in para-8 of its affidavit-in-reply, has stated that the commissioning of project depends on the timely procurement of rolling stock since the project cannot be commissioned without procurement and commissioning thereof. As per the government directives, the project is scheduled to be completed by March, 2018 and therefore, any delay in procurement of rolling stock will delay the project and that, therefore, to avoid cost overrun, timely completion of the project is essential. It is further stated that the project completion cost is Rs. 10,773 crore (including escalation cost of 7.5% per year based on April 2014 price level) as per the approval of the Central Government, which implies that if the project is delayed by one year beyond target completion date of March, 2018, then in that case, the project cost is inflated by 7.5%, i.e. approximately Rs. 807 crore p.a., which means cost of delay would be nearly Rs. 67 crore per month. 36. On behalf of the respondent, reliance has been placed upon the decision of the Supreme Court in the case of Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517, wherein the court has observed that if the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, the court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions, viz., (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone, or Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.' (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under. In the present case, this court finds that the answers to all the above questions would be in the negative. Under the circumstances, there is no warrant for interference. 37. For the foregoing reasons, the petition fails and is, accordingly, dismissed. Notice is discharged with no order as to costs. 38. Vide order dated 07.11.2016, this court has ordered that the technical and financial bids returned to the petitioner in a courier box as received by them from the respondent, shall be kept in the custody of the Nazir of this court. Such papers should be returned to the petitioner forthwith. 39. At this stage, the learned advocate for the petitioner has requested that the operation of this judgment and order be stayed for a period of one week from today to enable the petitioner to avail of the appropriate remedy before the higher forum. 40. The request is considered and declined.
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