Important Point – Action of State in matter of award of a contract has to satisfy criterion as mandated by Article 14 of Constitution.

1. Jammu and Kashmir Projects Construction Corporation Limited vide e-NIT No.JKPCC/U-4th/J/02 of 2016-17 dated 25th July 2015,invited E-Tenders from approved and eligible contractors/firms registered with J&K Government/other State Governments/CPWD/MES/Railways/BRO for design and construction of 1600 Metre span Composite Type (Partly Balanced) Cantilever/Partly Prestressed box girder) double lane Bridge with 1.5 Metre wide footpaths on both sides including approaches of length 2550 Meter (2250 Meter) (2250 Metre on Right Side & 300 Metre on Left Side) over River Chenab at Sajwal (Pargwal) – Indri Pattan (Jourian) District Jammu. One of the conditions of NIT is that “Bids from Joint Venture are not allowed”. It is this condition, of which petitioner is aggrieved of and throws challenge thereto.

2. The case set up by petitioner is that petitioner company is incorporated under Companies Act, 1956 and that it is “A” Class Contractor duly registered with Public Works Department since 1985 and has successfully executed several projects within the State. Petitioner is stated to be involved and instrumental in construction of various bridges of complex nature and has earned good reputation in professional field as Professional Contracting Agency having vast expertise in Bridge construction and petitioneris well equipped and possess required and specialised equipment. NIT conditions are contended to have made ineligible joint ventures to participate in tendering process and the bidder should have experience of executing, at least, one similar nature of work equal to 33% of total cost of work, during last five years i.e. work of Rs.5775.00 lacs. According to petitioner, condition 4.2(A) has been incorporated in tailor made fashion to suit particular bidders and oust local contractors, who single handed cannot qualify condition 4.3(b) and have to enter into Joint Venture agreement to qualify condition 4.3(b) and that there is no rationale to debar joint ventures from participating in tender process, irrespective of their bidding capacity to execute the work. Further averment of petitioneris that it has experience of executing work of similar nature amounting to Rs.4887.80 lacs from Ganpat Bridge, Doda, itself as a single work. Additionally, petitioner is in process of entering into joint venture exclusively for purpose of participating in tender proceedings to qualify the bid condition 4.3 (b). Combined experience of constituents of Joint Venture, according to petitioner, can be treated as experience of Joint Venture and combined experience of proposed joint venture is more than 33% of total cost of project, therefore, proposed joint venture of petitioner would qualify condition 4.3 (b). It would not make any difference either to successful completion of the project or to any other bidder, if Joint venture is allowed to participate in the tendering process, as stated by petitioner in writ petition. Its further contention is that allowing joint ventures to participate in bidding process will lead to healthy competition and more competent bidders will come forward to partake in bidding process. Petitioner asserts that it is well accepted practice that for purpose of executing high valued projects, two companies or contractors formulate a joint venture, so as to share their experience and expertise for the successful completion of project and that companies also form a joint venture to qualify the bid conditions. Petitioner’s further assertion is that the bidder, in the present case, is required to produce successful completion certificate of having executed one similar work equal to 33% of the total cost of the project, which amounts to Rs.57.75 crores and according to petitioner, itas an individual company does not qualify the said condition but it is already proposed to enter into joint venture in order to qualify the bid conditions, pertaining to 33% of joint experience of the members of joint venture. However, due to clause 4.