Experience from a partner in a proprietary firm can be counted towards the eligibility of a Limited Liability Partnership in tender evaluations.

JUDGMENT :

Sandeep V. Marne, J.

1. Rule. Rule is made returnable forthwith. With the consent of the learned counsel appearing for the parties, the Petition is heard finally.

2. Petitioner has filed the present Petition challenging the decision of Respondent No.2 rejecting its bid thereby refusing to consider its financial bid in the impugned tender process. The Petitioner has also challenged the decision of Respondent Nos. 1 and 2 in declaring Respondent No.4 as the successful bidder.

3. Brief facts leading to filing of the Petition are that Respondent Nos.1 and 2 issued Tender Notice dated 23 August 2024 for execution of Road Maintenance Work on NH-965D at estimated cost of Rs.3,22,63,404/-. Petitioner submitted its bid in pursuance of the Tender Notice. After completion of technical scrutiny of the bids, Petitioner’s bid was rejected as ‘non-responsive’ on the ground that it failed to submit notarized business transfer agreement. Petitioner’s bid was rejected as non-responsive vide scrutiny sheet dated 23 September 2024 by citing various reasons such as failure to submit legal document showing relationship between the Petitioner and M/s. Nandkumar Constructions, non-certification of annual turnover by statutory auditor, non-submission of bid capacity in prescribed format, non-attachment of document of Plant Engineer and Quality Surveyor etc. Petitioner made representation dated 23 September 2024 and submitted the relevant documents. It appears that the meeting of the Evaluation Committee was held on 3 October 2024 and by communication dated 4 October 2024, the Petitioner was informed that its bid was rejected as non-responsive for failure to submit notarized Business Transfer Agreement. Petitioner has challenged the rejection letter dated 4 October 2024 in the present Petition. By its representation dated 4 October 2024, Petitioner submitted a copy of the Memorandum of Understanding for Business Transfer executed between the Petitioner and M/s. Nandkumar Constructions. Since the decision for disqualifying the Petitioner is not recalled, it has filed the present Petition challenging the communication dated 4 October 2024 as well as seeking disqualification of Respondent No.4. By order dated 10 October 2024, this Court directed that work order pursuant to the subject tender, if issued, shall not be acted upon.

4. Mr. Narvankar, the learned counsel appearing for the Petitioner would submit that rejection of Petitioner’s bid is clearly arbitrary and irrational. That the bid could not have been rejected on the ground of non-submission of notarized copy of business transfer agreement. That in accordance with the Government Resolution dated 17 September 2019, Petitioner ought to have been granted an opportunity to make good the shortfall. That in any case the Petitioner did submit copy of the Memorandum of Business Transfer vide letter dated 4 October 2024. That the document to evidence business transfer was never requisitioned by the tendering authority.

5. Mr. Narvankar would submit that the tendering authority has apparently refused to take into consideration experience and financial credentials of M/s. Nandkumar Constructions while considering the Petitioner’s bid. That it is well settled position of law that experience of the constituent partner of the firm can be considered/counted as experience of the firm and in support, he would rely upon judgment of the Apex Court in New Horizons Limited and another vs. Union of India and others , [(1995) 1 SCC 478] . That in any case the sole proprietor of M/s. Nandkumar