Tender condition of experience “in same name & style of tenderer” – SC allows JV experience

Tender condition of experience in the same name and style of tenderer can not overlook experience in joint venture unless specifically excluded so in eligibility criteria.

In a recent judgment, Hon’ble Supreme Court has held that disqualifying applicant from tender on technical evaluation by not taking into account its past proportionate experience in the joint venture being in the same name and style was an arbitrary decision.

ABCAUS Case Law Citation:
4944 (2025) (12) abcaus.in SC

The controversy in the present case revolve around the interpretation of the expression used in eligibility criteria of tender that the contractor should have requisite experience “in the same name and style (tenderer)”.

The State Public Worls Department (PWD) issued a notice inviting tender for construction of a road. pursuant to which the appellant had submitted its tender.

As per the eligibility criteria it was required that contractor in the same name and style must have in the last five years achieved prescribed percentage of financial turnover of construction work and other conditions regarding to satisfactory completion of similar work with minimum specified percentage of the probable amount of the contract under tender.

After exchanging correspondences, The PWD disqualified the appellant at the stage of technical evaluation on the ground that one experience certificate of the appellant was of lesser value than prescribed percent of the contract value while the other experience certificate was that of joint venture of which appellant was a partner; thus appellant failed to meet the eligibility criterion.

The Appellant challenged rejection of its technical qualification on the aforesaid ground before the High Court. The High Court was of the view that it could not enter into an examination of the conditions stipulated by the authority while issuing the NIT. Holding that the decision making process did not suffer from any malice or unreasonableness, the High Court dismissed the writ petition

Before the Hon’ble Supreme Court, the appellant submitted that his weighted experience as a partner in a joint venture ought to have been considered towards the experience of the appellant in its own name and style.

The Hon’ble Supreme Court observed that in the judgment relied upon by the Petitioner, the Apex Court had held that the earlier experience of one of the partners of the firm can be taken into consideration for eligibility criteria. Similarly, a company who may undergo reorganization as a result of merger or amalgamation with another company which may not have such past experience and the tender is submitted in the name of the 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 Hon’ble Supreme Court observed that perusal of the conditions in the pre-qualification document, there was no criteria or condition stating that past experience as member of a joint venture would not be considered. There was no specific or explicit exclusion of the work experience gained by a contractor in a joint venture or partnership.

The Hon’ble Supreme Court stated that an eligibility criteria should be clear and unambiguous. Otherwise, it may lead to arbitrary exercise of power by the State disqualifying a tenderer who would otherwise meet the eligibility criteria.

The Hon’ble Supreme Court opined that there was no justification at all on the part of the PWD in not considering the proportionate experience certificate of the appellant as a member of the joint venture. Such decision was arbitrary and unreasonable rendering the decision making process in breach of the mandate of Article 14 of the Constitution of India.

Accordingly, the Hon’ble Supreme Court held that the decision making process of the PWD in disqualifying the appellant from the tender by not taking into account its past proportionate experience in the joint venture was vitiated by irrationality leading to the arbitrary decision of declaring the appellant as disqualified.

As a result, the said decision of the PWD and judgment and order of the High Court was set aside and quashed. 

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