The main legal point established in the judgment is that the party inviting tenders has the prerogative to stipulate the necessary conditions for eligibility, and a condition requiring the experience of the firm itself, excluding the experience of individual partners, is legal and justified.

S.J. VAZIFDAR, J.

This is an appeal against the order and judgment of the learned Single Judge allowing the respondent’s petition by declaring a term in the tender that in case of a partnership firm, only the experience of the firm would be reckoned and the experience of the individual partners would not be counted as the experience of the partnership firm to be arbitrary, illegal and contrary to the law laid down by the Supreme Court of India in M/s New Horizons Ltd. and another v. Union of India and others (1995) 1 SCC 478.

2. On 11.11.2016 the appellant issued a notice inviting (NIT) e-tenders under a two bids system for the appointment of handling and transport contractors for a period of two years. The note at the end of the instructions to the bidders stated “For detailed terms and conditions, MTF applicable may be referred”. The appellant had on 11.04.2016 modified clause 3(i) of the MTF.

(A) It is common ground that the following term applies to the present case:-

“Modified Clause No.3(i) of the HTC MTF	Modified Clause 3(i) of the RTC MTF
Tenderer should have experience of Rake handling and or Transportation Duly obtained from Manufacturer/PSU/Public Ltd. Company/Private Limited Company dealing in the field of Fertilizer, Foodgrains cement, sugar, Coarse grains or any other commodity. Tenderer should executed in any of the immediate preceding five years the work of value. (a) Atleast 25% of the estimated value of the contract to be awarded in one single contract; OR (b) 50% of the estimated value of the contract to be awarded in different contracts.	Tenderer should have experience duly obtained from Manufacturer/PSU/Govt. Dept/Public Ltd. Company Private Limited dealing in the field of Fertilizer, food grains, cement, sugar. Coarse grains or any other commodity. Tenderer should have executed in any of the immediate preceding five years work of value. (a) Atleast 25% of the estimated contract value in one single contract: OR (b) 50% of the estimates contract value in different contracts.
In case of partnership, only the experience of the Firm will be reckoned and for the purpose of the experience of the individual partners will not be counted.	In case of Partnership only the experience of the Firm will be reckoned and for the purpose the experience of the individual partners will not be counted.”

(B) As noted in the impugned judgment Appendix II and III, the MTF and HTC and RTC were also modified as under:-

“Duly audited P&L account and balance sheet of relevant completed years for which experience certificate has been submitted by the tenderer. In case of Partnership, only the experience of the Firm will be reckoned and for the purpose the experience of the individual partners will not be counted.

This modification in the HTC & RTC will be applicable with prospective effect.

You are, therefore, requested to make necessary amendment in the MTF of HTC and RTC accordingly with immediate effect.”

3. It is common ground that the firm does not have the necessary experience and that only one of its partners has the experience necessary to qualify for participating in the tender process. The respondent firm (original petitioner) was constituted on 04.01.2016 and is engaged in the business of handling and transportation of food grains. One of the respondent’s partners one Daniel Masih is stated to have vast experience in handling and transportation of food grains by virtue of his having been a partner in another partnership firm which has successfully completed and carried out similar contracts. The petitioner itself does not, indeed could not have had the requisite experience of five years for it had been constituted only ten months before the NIT.

4. The respondents contended that the stip