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Whether a sole proprietorship concern could claim the experience of the joint venture (of which it was a part) and all its constituents, as its individual experience - Tender
Whether a sole proprietorship concern could claim the experience of the joint venture (of which it was a part) and all its constituents, as its individual experience - Tender
Te sole proprietorship concern could not claim the experience of the joint venture and all its constituents, as its individual experience.
Kunwar Construction v. State of Uttarakhand and others, 2019 SCC OnLine UTT 1210 (Uttarakhand High Court )
“since the Joint Venture did not participate in the bidding process, the appellant-writ petitioner can, at best, claim the experience of the Joint Venture only to the extent of his 25% share therein,”
The petitioner (Kunwar Construction) therein was a sole proprietorship concern. In terms of the tender conditions, a tenderer was required to have undertaken works of at least 50% of the cost of project, i.e. Rs.427.78 lakhs. Kunwar Construction hitherto was a constituent of joint venture: M/s Kunwar Constructions and M/s Balvinder Singh and Co. and had contributed 25% of the investment. The experience certificate submitted by the petitioner included the works executed by the joint venture. The experience acquired by the joint venture was claimed as experience of the petitioner. However, the authorities added only 25% of the experience of the joint venture as experience of the petitioner (sole proprietorship concern) and rejected its bid upon technical evaluation, for it had not executed works above Rs.427.78 lakhs. However, claim of the petitioner was that notwithstanding its investment (25%), the entire experience acquired by the joint venture ought to have been reckoned in computing the required experience and in that situation, the petitioner fulfills the minimum prescribed experience. Whereas, the case of the authorities was, for the petitioner had submitted its technical bid as a sole proprietorship concern and not as a joint venture, the experience of the joint venture could not be considered as experience of the sole proprietorship concern. And, in any event, for the petitioner merely held 25% share in the joint venture, at best, only 25% of the said experience could be claimed by the petitioner. And, the Division Bench, in reference to the decision rendered by the Bombay High Court in Atasha Ashirwad Builders (J.V.) Nagpur v. State of Mahrashtra & Ors., (2010) 15 RCR (Civil) 377, relied upon by the petitioner and also the judgment of the Supreme Court in New Horizons Limited (supra), concluded that in those cases, the bidder was a joint venture and had claimed the experience of all its constituents. Thus, rejection of the bid by the authorities, drawing a distinction between the joint venture itself and its constituent members, was set aside both by the Bombay High Court in Atasha Ashirwad Builders (supra) and by the Supreme Court in New Horizons Limited (supra). Whereas, in the matter the Court was seized of, though undoubtedly, the petitioner was a member holding 25% share in a joint venture, however, the bid submitted by the petitioner was not as a joint venture, but as a sole proprietorship concern. Thus, unlike a situation where a bid submitted by a joint venture in which the experience of all its constituent members is required to be taken into consideration in computing experience of the joint venture itself, the converse may not be possible. Resultantly, the sole proprietorship concern could not claim the experience of the joint venture and all its constituents, as its individual experience.
“19. Just as in Atasha Ashirwad Builders, the bidder in New Horizons Limited was also a Joint Venture, and had claimed the experience of all its constituents. Rejection of the bid, drawing a distinction between the Joint Venture itself and that of its constituent members, was set aside both by the Bombay High Court in Atasha Ashirwad Builders and by the Supreme Court in New Horizons Limited.
20. In the present case, while the appellant-writ petitioner was no doubt a member holding 25% share in a Joint Venture, the bid submitted by them was not as a Joint Venture, but as a sole proprietary concern. Unlike in cases where a bid is submitted by a Joint Venture, in which case the experience of all its constituent members may be required to be taken into consideration in computing the experience of the Joint Venture itself, the converse may not be true. The appellant-writ petitioner herein, having submitted their bid as a sole proprietary concern and not as a Joint Venture, cannot claim the experience of the Joint Venture, and all its constituents, to be reckoned as his individual experience as a sole proprietary concern.”
Kunwar Construction v. State of Uttarakhand, 2019 SCC OnLine UTT 1210
“since the Joint Venture did not participate in the bidding process, the appellant-writ petitioner can, at best, claim the experience of the Joint Venture only to the extent of his 25% share therein,” - Tender
“since the Joint Venture did not participate in the bidding process, the appellant-writ petitioner can, at best, claim the experience of the Joint Venture only to the extent of his 25% share therein,” - Tender
For, on a proposition of law, it was concluded that if a bid is submitted by the joint venture itself, it can legitimately claim the experience of its constituent members. Whereas, the converse may not be true. Rather, before recording those observations, emphasised by us, it was clarified, “while it was unnecessary for the respondents to have included even a part of the experience of the Joint Venture, in determining the experience of the appellant-writ petitioner as a sole proprietary concern.” Thus, it was only because the authorities themselves had reckoned 25% of the experience in the name of the joint venture, as experience of the petitioner (sole proprietorship concern), the court, in the given situation, observed that the petitioner, at best, could claim the experience of the joint venture corresponding to its share.
Kunwar Construction v. State of Uttarakhand and others, 2019 SCC OnLine UTT 1210 (Uttarakhand High Court )
Whether the experience gained/acquired by a partnership firm, could be construed as experience of a partner, in his individual/independent capacity
Whether the experience gained/acquired by a partnership firm, could be construed as experience of a partner, in his individual/independent capacity
Tender - Whether the experience gained/acquired by a partnership firm, could be construed as experience of a partner, in his individual/independent capacity - Ordinarily, in the case of a partnership, the arrangements of the partners inter se, related to running the business/affairs of the firm, division of work, assignment of specific operations to a particular partner, skill, knowledge and experience possessed by the other and extent of its usage and benefit to the firm are opaque to an outsider looking inwards - Similarly, it is not unusual that every partner does not necessarily attend to the day to day business of the firm - Even a partner who possesses the requisite experience might not have ever participated in the management or affairs of the firm, for he may only be an investment partner - For the characteristic features herein are opacity and uncertainty as to the innards of the firm’s workings, coercing a tender inviting authority to blindly treat experience in the name of an erstwhile partnership firm as the experience of the partner in his individual capacity, in our view, would militate against every judicious consideration that animates an NIT - Therefore, in a situation where the tender inviting authority is not equipped with any material on record to judge and be sure of whether the tenderer in his individual capacity has the requisite experience or not, we don’t consider it rational to coerce the authority to accept the experience certificate of an erstwhile partnership firm regardless, and ask it to resign the fate of its project to the mercurial vicissitudes of chance.
2021 PLRonline 011 (2021-1) PLR 825 M/S. A.G. CONSTRUCTION CO. v. FOOD CORPORATION OF INDIA
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