(1.) In order to reduce safety hazard, M/s. Oil India Limited (OIL), a Government of India Enterprise, proposed to replace its existing LPG storage bullets with mounded LPG storage bullets. For the purpose of implementing the said proposal, OIL, (i. e. , the respondent No. 1 herein), appointed respondent No. 2, namely, Engineers India Limited (EIL), as their consultant. Acting upon this appointment, the EIL, on behalf of the OIL, published, on 26. 04. 2006, a notice inviting tender (NIT). This NIT was followed by a corrigendum published on 29. 05. 2006. By the NIT, so published, respondent No. 2 invited sealed bids for the said project under single stage two envelope system from competent Indian agencies with sound technical and financial capabilities and meeting the qualification criteria as stated in Para 6. 0 of the said NIT. The writ petitioner, namely, M/s G. R. Engineering Works Ltd. , a public limited company, registered under the Companies Act, and the respondent No. 3, namely, M/s. Fabtech Projects and Engineers Private Limited, which is also a company, though private limited, registered under the Companies Act, participated in the said tender process. The technical, bids offered by these two tenderers, were opened, on 15. 06. 2006, as scheduled. Having held both the bidders technically sound as per the NIT, the respondent No. 2 fixed 04. 08. 2006 as the date for opening of the price bids. The price bids were accordingly opened and it was found that the respondent No. 3 had offered to carry out the work of the said project at a sum of Rs. 34,20,00,000/- and the present petitioners price bid was at Rs. 50,52,00,000/ -. The respondent No. 2 then recommended, by their letter, dated 23. 08. 2006, to the respondent No. 1 that the respondent No. 3 be awarded the contract. The recommendation, so made by the respondent No. 2, was accepted by the respondent No. 1 and accordingly respondent No. 1, by its letter, dated 21. 07. 2006, informed the respondent No. 2 that their recommendations stood approved.

(2.) Before the contract could, however, be awarded to the respondent No. 3, the petitioner came to this Court, on 15. 09. 2006, with the present application, made under Article 226 of the Constitution of India, seeking, inter alia, a declaration that the bids, offered by the respondent No. 3, were invalid and defective and no recommendation for allotment of work could have been legally made by the respondent No. 2 in favour of the respondent No. 3. While issuing notice of motion, on 15. 09. 2006, an interim order was passed, on 15. 09. 2006 itself, directing the parties to maintain status quo, as on that day, in respect of the impugned NIT. The respondent No. 3 appeared in the writ petition and sought to get the said interim order vacated. In course of time, all the respondents filed their affidavits-in-opposition and, having considered the fact that the nature of reliefs, which the parties had sought for, and also the public interest involved necessitated expeditious disposal of the writ petition, the writ petition was, as agreed to by the learned counsel for the parties, taken up for final disposal at the stage of admission.

(3.) I have heard Mr. R. L. Yadav, learned counsel for the petitioner, and Mr. S. N. Sarma, learned Senior counsel, appearing on behalf of the respondent No. 1 have also heard Mr. R. P. Sharma, learned Senior counsel, for the respondent No. 2 and Mr. N. Dutta, learned Senior counsel, appearing on behalf of the respondent No. 3.

(4.) The challenge to the selection of the respondent No. 3 is posed by the petitioner on the ground that the respondent No. 3 did not satisfy the eligibility criteria embodied in the NIT, the case of the petitioner being, in brief, thus : The petitioner had enclosed, in its bidding documents, all the essential materials, which were required for the purpose of enabling a person to participate in the tender process. As against this, the documents, necessary to make a person eligible to participate in the tender process, were not furnished by the respondent No. 3. Upon enquiry having been made by the petitioner from the office of the Registrar of Companies, the petitioner found that the respondent No. 3 could not have fulfilled the criteria of technical experience as required under para 6. 1 of the NIT nor could the respondent No. 3 fulfill the financial criteria as were set out in para 6. 2 inasmuch as the documents, obtained from the Registrar of Companies, show that the respondent No. 3 had not even started its manufacturing activities till the end of the financial year 2004. This apart, the relevant documents show that the share capital of respondent No. 3 is Rs. 1,00,000/- only and the assets, as per the balance sheet, was, as on 03. 02. 2005, barely a sum of Rs. 37,346/ -. These facts, according to the writ petitioner, clearly indicate that the respondent No. 3 was neither technically fit nor financially qualified to participate in the tender process. The tender documents, therefore, submitted by the respondent No. 3 are, according to the writ petitioner, invalid and cannot be accepted for awarding the contract. It is the case of the writ petitioner that on coming to learn that the respondent No. 3 was going ahead with its proposal to approve the tender of the respondent No. 3 and apprehending that there was some foul play in entertaining the bid of the respondent No. 3, the petitioner wrote letters, in this regard, to the respondent No. 2 pointing out to them that the respondent No. 3 was neither technically qualified nor financially eligible to participate in the tender process; but without having regard to the objections so raised by the petitioner, the respondent No. 2 opened the price bid on 04. 08. 2006 and has recommended the case of respondent No. 3 for awarding of contract to the respondent No. 1. The recommen-dations, so made by respondent No. 2 in favour of respondent No. 3, is, according to the writ petitioner, mala fide and cannot be sustained.

(5.) Before I deal with the case of the respondent Nos. 1 and 2, it is necessary that since the eligibility of the respondent No. 3 to participate in the tender process is under challenge in the present writ petition, the case of the respondent No. 3 be, first, taken note of. As far as the respondent No. 3 is concerned, its case is, in brief, as under :

(i) A partnership firm was, originally, formed between Sri Rajabhau Ananda Rupnar and Smt. Neelverna Bira Rupnar for the purpose of carrying on business of manufacturing, selling, marketing, importing and exporting of engineering goods, fabrication, welding, etc. , in the name of M/s Fabtech Engineers. By a deed of reconstruction executed on 01. 04. 1999, Sri Bira Ananda Rupnar was inducted as a third partner of the said firm, namely, M/s Fabtech Engineers. The business of M/s Fabtech Engineers expanded substantially and it managed to obtain several contracts with reputed organizations, such as, HPCL, IOC, Mangalore Refinery and Petrochemicals Ltd. , etc. Under such circumstances, the said three partners of M/s Fabtech Engineers decided to carry on their business by forming a company and take over the business of M/s Fabtech Engineers in phased manner. Acting upon this decision, the said three partners got, on 03. 06. 2002, a company incorporated, under the Companies Act, in the name of respondent No. 3 namely, M/s Fabtech Project and Engineers Private Limited, one of the main objects of the respondent No. 3 being to take over the existing business activities of M/s Fabtech Engineers with all its assets and liabilities. The said three partners of the said firm, namely, M/s Fabtech Engineers, became directors of the respondent No. 3. In its meeting held on 30. 03. 2005, the Board of Directors of the respondent No. 3 resolved to take over the running business of M/s Fabtech Engineers with effect from 01. 04. 2005. It was further resolved by the Board of Directors of the respondent No. 3 that the taking over of the business of M/s Fabtech Engineers by the respondent No. 3 would not affect the past, present and future assets and liabilities of M/s Fabtech Engineers. Following the resolution, so adopted by the Board of Directors of the respondent No. 3, an agreement was executed between M/s Fabtech Engineers, on the one hand, and M/s Fabtech Project and Engineers Pvt. Ltd. (i. e. , the respondent No. 3), on the other, which witnessed the taking over and amalgamation of the business of the said partnership firm by the new company, namely, respondent No. 3. In the said agreement, executed on 01. 04. 2005, it was specifically agreed upon that all assets, properties, intangible assets, goodwill, licenses, permissions, entitlements, etc. , of M/s Fabtech Engineer (i. e. the said partnership firm) and all its liabilities, dues, cesses, etc. would become the assets and liabilities of the new Company, namely, Fabtech Projects and Engineers Pvt. Ltd. (i. e. , respondent No. 3). It was further agreed that the entire undertaking of the said firm would become the undertaking of the Company and that the firms undertaking shall cease to exist and the transactions, if any, in the name of the said firm, would be deemed to be the transaction of the new Company. Simultaneously, on 01. 04. 2005 itself, a deed of dissolution was executed between the partners of the said firm dissolving the partnership in tune with the said agreement, whereunder the respondent No. 3 had taken over the running business of the said firm with the assets and liabilities as indicated hereinbefore.

(ii) Following the taking over of the business of M/s Fabtech Engineers by the respondent No. 3 as indicated hereinabove, the parties, with whom M/s Fabtech Engineers had been carrying on their business, accepted the taking over of the business of the said firm by the respondent No. 3 and accordingly modified the work orders, (which were earlier in the name of M/s Fabtech Engineers), to the name of respondent No. 3. A solvency certificate was also issued, on 28. 11. 2005, by Saraswat Bank in favour of respondent No. 3. As the respondent No. 3 has taken over the business of M/s Fabtech Engineers with all its assets and liabilities, as reflected in the balance sheet of the said firm, prepared at the time of taking over of the business of the said firm by the respondent No. 3, the experience, which had been gained by M/s Fabtech Engineers, and also the financial capacity of M/s Fabtech Engineers could have been legally counted in favour of the respondent No. 3 making thereby the respondent No. 3 eligible to participate in the said tender process. As the respondent No. 3 is technically qualified, financially sound and its financial bid was much lower than that of the writ petitioner, respondent No. 3 became eligible and qualified to receive the contract. The selection of the respondent No. 3 and/or the recommendations made by the respondent No. 2 to the respondent No. 1 to award the contract to the respondent No. 3 are entirely legal, based on relevant considerations and this recommendation is neither actuated by any ulterior motive nor does the recommendation suffer from mala fide.

(6.) As far as the respondent No. 2, namely, EIL is concerned, its case is that the respondent No. 3 had been operating, as a partnership firm, in the name and style of M/s Fabtech Engineers prior to 01. 04. 2005 and as per the certificate of incorporation issued, on 11. 06. 2002, by the Registrar of Companies, the three partners of the said firm became Directors of respondent No. 3. The documents, which the respondent No. 3 had furnished, also indicated that the respondent No. 3 had taken over the entire existing business and activities of the said M/s Fabtech Engineers including all its assets and liabilities and, upon taking over of the business of M/s Fabtech Engineers, the latter lost its identity in the eyes of law. The relevant documents also disclosed that the dissolution of the said partnership firm was finalized on 01. 04. 2005. On the basis of the documents, which had been furnished by the respondent No. 3 respondent No. 2 found that with effect from 01. 04. 2005, respondent No. 3 had not only taken over the running business of M/s Fabtech Engineers with all its assets and liabilities, but even with the benefits of existing contracts, which the said firm had already entered into with their various other clients including public sector oil companies. The documents, furnished by respondent No. 3, further revealed that the assets included the technical expertise, man-power, financial support, etc. As world-famed consultancy organization with proven technical expertise, respondent No. 2 had no alternative, but to consider the case of the respondent No. 3 too, on merit, as a successor in business to the erstwhile partnership firm, namely, M/s. Fabtech Engineers. Upon close scrutiny of the documents submitted by the respondent No. 3, respondent No. 2 found that the respondent No. 3 was financially sound and had requisite past experience to carry out the work of the project of present nature. Based entirely on merit and adhering to every element of integrity and impartiality, respondent No. 2 has recommended the case of respondent No. 3 for awarding of the contract to the respondent No. 1.

(7.) Coming to the case of the respondent No. 1, it needs to be noted that according to this respondent, it appointed the respondent No. 2 for implementing its proposal to replace its existing LPG storage bullets with mounded LPG bullets and after evaluating the technical details and the priced bids of the tenderers, respondent No. 2 recommended, vide its letter, dated 23. 08. 2006, the name of respondent No. 3 for awarding of the contract. In fact, since even the bid of the respondent No. 3 was higher than the estimated cost, respondent No. 2 had asked respondent No. 1 to negotiate the price with respondent No. 3 so that the expenses could be brought down as near as possible to the estimated cost. The respondent No. 1 is acknowledged and accepted as one of the best organizations of the country for the kind of responsibility, which the respondent No. 1 has given to the respondent No. 2, and the respondent No. 1 has full faith in the decision taken by the respondent No. 2 and since the respondent No. 2 has found respondent No. 3, both technically and financially, qualified for the contract, in question, the respondent No. 1 has decided to allot the contract work of the said project to the respondent No. 3 and this decision is not mala fide. In fact, if the contract is awarded to the petitioner, it will cause heavy loss to the respondent No. 1, which is a public sector undertaking, and in view of the prevailing scenario of insurgency in the State of Assam, the project, in question, needs to be completed as early as possible for the purpose of safety. The rate, quoted by the petitioner, is twice the estimated cost of the project and, hence, the contract cannot be awarded at such inflated rate. The writ petition has raised multiple disputed questions of fact and such questions of fact cannot be determined in a writ proceeding. The writ petition, therefore, needs to be dismissed.

(8.) Before coming to the merit of the writ petition, let me summarize hereinbelow, the material facts, which formed the basis for considering the respondent No. 3 as a person eligible to participate in the tender process :

(i) Sri Rajabhau Ananda Rupnar and Smt. Neelvarna Bira Rupnar, originally, formed a partnership firm in the name of M/s Fabtech Engineers, for the purpose of carrying on a business of manufacturing, selling, marketing, importing and exporting of engineering goods, fabrication, welding, etc. By a deed of reconstitution, executed on 01. 04. 1999, Sri Bira Ananda Rupnar was inducted as the third partner of M/s Fabtech Engineers. Over a period of time, the business of M/s Fabtech Engineers expanded and the said firm managed to obtain several contracts with reputed organizations, such as, H. P. C. L. Indian Oil Corporation, Managalore Refinery and Petrochemicals Ltd. etc. The said three partners of M/s Fabtech Engineers, then, decided to incorporate a Company in order to take over the business of M/s Fabtech Engineers in a phased manner. On 03. 06. 2002, a Company, by the name of M/s Fabtech Projects and Engineers Pvt. Ltd. , was incorporated, under the Companies Act, with one of its main objects being to take over the existing business and activities of M/s Fabtech Engineers with all its assets and liabilities. The said three partners of M/s Fabtech Engineers became Directors of the Company so incorporated, namely, M/s Fabtech Projects and Engineers Pvt. Ltd. (i. e. , the respondent No. 3).

The Board of Directors of the said company (i. e. , the respondent No. 3), then, resolved, on 30. 03. 2005, to take over the running business of M/s Fabtech Engineers, as on 30. 03. 2005, with effect from 01. 04. 2005. The Board of Directors of respondent No. 3 also resolved that taking over of the business of M/s Fabtech Engineers would not affect the past, present and future assets, liability or rights or any contract, which the said firm had entered into, and that these contracts would continue in the name of the respondent No. 3. Following the resolution, which had been so adopted by the Board of Directors of the respondent No. 3, an agreement was executed, on 01. 04. 2005, between M/s Fabtech Engineers, on the one hand, and the respondent No. 3, on the other, whereunder the respondent No. 3 took over the running business of M/s Fabtech Engineers with all its assets, properties, intangible assets, goodwill, licences, entitlements and the liabilities and dues of the said firm became the liabilities of the newly born company, i. e. the respondent No. 3. Following the agreement, so reached, a deed was executed, on 01. 04. 2005 itself, by the partners of M/s Fabtech Engineers, dissolving the said partnership firm. Acting upon the agreement, which had been reached between M/s Fabtech Engineers and the respondent No. 3, whereunder the respondent No. 3, had taken over the running business of M/s Fabtech Engineers, all public sector undertakings, which had been working with M/s Fabtech Engineers, modified their contract orders in favour of the respondent No. 3.

(9.) The chronology of events as narrated above (which had led to the birth of the respondent No. 3, as a private limited company, registered under the Companies Act) have not been in dispute in the present writ petition. This apart, had these facts been in dispute, the writ petition would not have been, otherwise, also, maintainable. This Court has to therefore, proceed on the premises that one of the objects, with which respondent No. 3 was given birth to, was to take over the entire running business of M/s. Fabtech Engineers and that with effect from 01. 04. 2005. respondent No. 3 has, in fact, taken over the business of M/s Fabtech Engineers and that with such taking over of the business of the M/s. Fabtech Engineers by the respondent No. 3, the said firm, namely, M/s Fabtech Engineers stood dissolved. This apart, respondent No. 3 has given all relevant and essential supporting materials including the Memorandum of Association, which clearly show the objective with which respondent No. 3 was formed and that with effect from 01. 04. 2005, respondent No. 3 has taken over the business of M/s. Fabtech Engineers with all its assets and liabilities as on 30. 03. 2005.

(10.) In the backdrop of the above admitted facts, let me, now, consider the merit of the present writ petition. What needs to be noted, at the very outset, in this regard, is that the writ petitioners basic challenge to the eligibility of the respondent No. 3 to participate in the tender process is that the respondent No. 3 was incorporated as a company on 03. 06. 2002 and, hence, the respondent No. 3 does not have the necessary technical experience or financial capability of their own and could not have, therefore, been treated as eligible to participate in the tender process, for, the experience or financial capacity of M/s. Fabtech Engineers could not have been legally counted, while considering the eligibility of the respondent No. 3 to participate in the said tender process.

(11.) In order to show that the respondent No. 3 could not have been given the benefit of past experience or financial strength of M/s. Fabtech Engineers Mr. Yadav, learned counsel for the petitioner, points out, that Paragraph 13 of the NIT makes it clear that the person, who bids, must be the person, who purchased the bidding documents. This, in turn, shows, contends Mr. Yadav, that whatever experience or financial transactions, M/s Fabtech Engineers had, could not have been counted in favour of the respondent No. 3 to determine the eligibility of the respondent No. 3.

(12.) In view of the fact that there is no dispute that the respondent No. 3 was born only on 03. 06. 2002 and did not have experience of seven years in its own name, the question, which needs to be answered, for the purpose of determining the eligibility of respondent No. 3, is this, whether past experience of M/s. Fabtech Engineers, their technical expertise and their financial soundness could have been counted, in the present case, in favour of the respondent No. 3, on the ground that the entire business of M/s. Fabtech Engineers, with all their assets and liabilities including goodwill, had been taken over, with effect from 01. 04. 2005, by the respondent No. 3.

(13.) For the purpose of answering the above question, it is necessary to have a closer look into the relevant conditions of the NIT. With this end in view, para 13 of the NIT, which Mr. Yadav relies upon, is reproduced hereinbelow :

"13. Bidder shall purchase biding document in his own name and submit the bid directly.The biding document is non-transferable. "

(14.) A careful scrutiny of Paragraph 13 of the NIT shows that the person, who bids, must be one who had purchased the bidding documents. The limitation, thus, imposed by Paragraph 13, is that the bidding documents, purchased in the name of one person, cannot be used for the purpose of submitting tender in the name of another person. In the present case, the respondent No. 3 did not purchase the bidding documents in the name of M/s. Fabtech Engineers. The bidding documents were, admittedly, purchased by the respondent No. 3 in its own name and the respondent No. 3 submitted the tender in its own name. Para 13 of the NIT, therefore, could not have been resorted to for the purpose of rejecting the tender of respondent No. 3.

(15.) What, now, needs to be noted is that Para 2 of the NIT clearly shows that any agency, which offers the bid, must have sound technical and financial capability and must also meet the qualification criteria as stated in Paragraph 6 of the NIT. Paragraph 6 of the NIT is, thus, of great relevance and, therefore, reproduced hereinbelow :

"6. 1. 1 The Bidder must be an established fabricator of mounded vessels / reactors/columns/spheres/vessels of carbon steel and should have fabricated at least two such items with thickness above 25 mm and total erection weight (excluding refractory and internals) of single equipment not less than 185 MT (may be in multiple lift and weld in-situ), in the past seven years.

6. 1. 2. The Bidder on his own must have successfully executed at least one installation of two or more mounded storage vessels meeting requirements of thickness and weight as per 6. 1. 1 above, in a single mound and his scope of work and supply must include design, engineering, procurement, fabrication, erection and hydro test including all connected works an commissioning of the complete mounded storage system on a turnkey basis as single point responsibility which should have been working satisfactory for at least one year (800 hours). Period of one year (8000 hours) shall be reckoned from the due date of opening of the bids.

6. 1. 3 If the Bidder has no past experience of his own as per 6. 1. 2 above, but meets the requirements of 6. 1. 1 above, then he shall engage services of a reputed back up consultant for design, engineering, construction, supervision and performance guarantees. The back up consultant must be acceptable to Owner/eil. The back up consultant must have the relevant experience of his own as defined in 6. 1. 2 above. The back up consultant shall be engaged for carrying out :

a) Either the complete design and engineering or the review of design, drawings/data sheets prepared by bidder.

b) Provide or review the construction and erection procedures prepared by bidder and shall provide supervision during construction and commissioning and

c) Provide back up guarantees for performance and defect free job carried out by the bidder.

6. 1. 4. The Bidder shall enter into memorandum of Understanding (MOU) or have consent letter (s) from the back up consultant covering the relevant scope of work. The MOU or consent letter (s) hall be valid up to defect liability period of the Mounded Bullets System.

6. 1. 5 The Bidder shall furnish documentary evidence by way of copies of work order (s), completion certificate and other relevant documents along with the bi to establish his experience and track record meeting qualification criteria state above in Clause 6. 1. 1. to 6. 1. 4. (as applicable). The Bier shall submit his and back up consultants experience record as per the format enclose in the Biding Document.

6. 2. Financial Criteria. 6. 2. 1. The minimum annual turnover of the Bidder should be equal to or more than INR 2325 Lakhs during any one of the last three financial year (i. e. 2002-2003, 2003-2004 and 2004-2005).

6. 2. 2 The net worth of the Bidder during last financial year (i. e. 2004-2005) shall be positive. However, Bidder having negative net worth will also be considered provided all his annual reports for the last 3 years indicate profit after tax.

6. 2. 3 Working Capital Ratio (Current assets to current liability) of bidder shall be minimum 1. 5

6. 2. 4 The minimum net working capital of the bidder shall be 25% of annual turnover during last financial year. Alternatively, Bidder should submit an unconditional certificate from Schedule, "a Bank for providing working capital equivalent to 25% of value of work".

(16.) While considering the question as to whether the experience of M/s. Fabtech Engineers could have been counted in favour of the respondent No. 3, it is important to bear in mind that there is no provision in law, which bars a company from taking over the business of any proprietary concern or of a registered or unregistered firm. In the absence of any law barring the taking over of the business of a firm by a company, interpretation of law has to be consistent with the view, which would help strengthen the commercial relationship and lead to growth of the economy. It also needs to be borne in mind that the taking over of the business of a firm by a company, as in the present case, is, in the ultimate analysis, a commercial transaction. It is, therefore, necessary that the facts are considered, as would be considered, by a person, who is in business.

(17.) It may, now, be pointed out that when the owner of a proprietary concern decides, in order to expand his business, to form a partnership firm with some others, strictly speaking, a new entity is born in the form of a firm. The firm, which may be so born, could not have had any experience in its own name. This does not mean that a businessman would not take into consideration the earlier experience of one of the partners of such a firm for the purpose of determining the capability of the firm to execute a contract if allotted to them. Similarly, a firm may consist of two persons as partners and in order to expand their business, they may bring in some new partners and a new firm, in a new name, may be organized and formed. Though the newly born firm may not have any experience in its own name, would the experience of those who had been carrying on the business of the type, which the newly born firm is required to do, not be counted by a prudent businessman for determining the technical experience of the newly born firm to do the business It is not uncommon that a company, on account of merger or amalgamation, undergoes a re-organization and a tender may be submitted in the name of such a re-organized company. Shall the experience of the company, which has merged into re-organized company, not be taken into consideration, because the tender has not been submitted in the name of the company, which has merged, but has been submitted in the name of a re-organized company, which has no experience, in its own name Similarly, there may be a split in a company and the persons, who had been looking after a particular field of the business of the company, may form a new company after leaving the earlier company. The new company, though have persons with experience in the field, may not have experience in its own name; while the original company would have experience in its own name, but it would lack persons with experience, who had done work in the field. The requirements, regarding experience, cannot mean that the offer of the original company must be considered because it has experience, in its name, though it does not have any experienced person with it to carry on the work and ignore the offer of the new company on the ground that it has no experience in its own name, though it has persons having experience in the field and also capability to undertake and execute the work. A tender process, in such a case, is nothing, but a commercial transaction. The terms and conditions of the bidding documents have to be, therefore, construed, from the standpoint of a prudent businessman. When a businessman enters into a contract, where- under some work is required to be performed, he would seek to assure himself about the credentials of the person whom he has to choose for the purpose of performance of the work. If such credentials are to be examined from a commercial point of view, it logically means that if the contract is to be entered into, a company, as a prudent person in business, will look into the background of the entity, be it a company or firm, and the persons, who are in control of the same and capable to execute the work. A businessman would not go by the name of the company alone, but by the persons behind it, who have experience to do the work; Similar has to be approach of the State and its instrumentalities, while considering the eligibility of a tenderer, as is the case at hand, for the purpose of awarding the contract. These aspect of law have been succinctly explained in New Horizon Ltd. Vs. Union of India, reported in (1995) 1 SCC 478 [LQ/SC/1994/1053] , wherein the "apex Court observed and laid down as under : "23. Even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22. 4. 1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is, possible to visualize a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo I reorganization as a result, of merger or amalgamation with another company which may have no 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. Conversely there may be a split in a company and persons looking after a particular filed of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because if does not have experience in its name through it has persons having experience in the field. While considering the requirement regarding experience it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract where under some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22. 4. 1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment".

(18.) In the case of New Horizons Limited and Anr. Vs. Union of India and Ors. reported in (1995) 1 SCC 478 [LQ/SC/1994/1053] , the relevant clause, as regards the experience of the tenderer, appearing in the advertisement, read as under:

"the tenderer should have the experience in complying, printing and supply of telephone directories to the large telephones systems with the capacity of more than 50,000/- lines. The tenderer should substantiate this with documentary proof. He should also furnish credentials in this field. "

(19.) Though a cursory reading of the above condition, as regards experience appearing in the advertisement, reflected as if the experience has to be of the tenderer himself, the Apex Court, having discussed the position of law, as indicated hereinabove, clearly held that while considering the past experience of a tenderer, the persons, behind the company, which bids, and the experience, which the persons working behind the company have, would be taken into consideration by a prudent businessman and the same shall be the approach, in such a tender process, by the State and its instrumentalities. In the present case, it is not in dispute that in terms of the volume of business, which M/s Fabtech Engineers had carried out in the past, they had acquired such experience and they had reflected such financial soundness that had M/s Fabtech Engineers not been dissolved M/s Fabtech Engineers which made would have been competent to participate in the impugned tender process. When M/s Fabtech Engineers was competent, in terms of the relevant eligibility criteria fixed by the impugned NIT, it would be illogical to hold, in the face of the authoritative pronouncement by the Apex Court in New Horizons Limited (supra), that with the taking over of the running business of M/s Fabtech Engineers by respondent No. 3, the entire experience, which M/s Fabtech Engineers had acquired, and the financial soundness, which M/s Fabtech Engineers enjoyed, would instantly vanish, particularly when with the taking over of business, the respondent No. 3 has also taken over the assets including goodwill and also liabilities of the said firm. In such circumstances, there was no impediment in law in taking into account the experience and financial soundness, which M/s Fabtech Engineers had, particularly, when the persons, who were partners of M/s Fabtech Engineers not only became the shareholders, but directors of respondent No. 3. When M/s Fabtech Engineers was competent in terms of the relevant eligibility criteria, to participate in the impugned tender process, their experience and financial capacity could have been counted in favour of the respondent No. 3, when the business of the said firm was taken over (as already indicated hereinabove), by the respondent No. 3. There was, therefore, not impediment in law in taking into account the experience and financial capability, which M/s Fabtech Engineers had, particularly, when the persons, who were partners of M/s Fabtech Engineers, became not only the shareholders, but directors of respondent No. 3.

(20.) Coupled with the above, a close scrutiny of Para 6. 11, 6. 12 and 6. 13 clearly reveal that the personal experience is required only in respect of the conditions set forth in Para 6. 1. 2. for, Para 6. 1. 2. clearly states that the bidder, on his own, must have successfully executed, at least, one installation of the type as mentioned in Para 6. 1. 2; but even this requirement is relaxed by Para 6. 1. 3, which enabled a bidder, who had no past experience of his own in respect of Para 6. 1. 2. to engage services of a reputed back up consultant. What Para 6. 1. 1. required was that the bidder must be an established fabricator of mounded vessels/reactors/columns/spheres/vessels of carbon steel and should have fabricated at least two such items with thickness above 25 mm and total erection weight (excluding refractory and internals) of single equipment not less than 185 MT (may be in multiple lift and weld in-situ), in the past seven years. Thus, when M/s Fabtech Engineers had been an established fabricator for more that seven years and their business has been taken over by respondent No. 3, the respondent No. 3 could not have been disqualified by the respondent No. 3 on the ground that the respondent No. 2 had no business experience in their own name.

(21.) At any rate, in a writ petition under Article 226, which arises out of allotment of a contract, it is not the decision, which can be reviewed. What can be reviewed is the decision-making process. To put it differently, it is the decision-making process of allotment of a contract, which can be judicially reviewed under Article 226 and not the decision itself. As indicated in New Horizons Limited (supra), the past experience of the persons behind the company, who has offered the bid, is a relevant consideration. The writ petitioner has miserably failed to show that the respondent Nos. 1 and 2 took into consideration, in order to treat respondent No. 3, as eligible, any factor, which was irrelevant, or that the respondent Nos. 1 and 2 excluded from consideration any factor, which was relevant. When the respondent Nos. 1 and 2 have taken into consideration all factors, which were relevant, and eschewed from consideration all factors, which were irrelevant, such a decision-making process, in the complete absence of any material showing mala fide on the part of respondent No. 2 and/or respondent No. 1, in selecting the respondent No. 3, cannot be said to be illogical or illegal.

(22.) During the course of the hearing, Mr. Yadav, learned counsel for the petitioner, referring to Para 8 of the NIT, submitted that from the affidavit of the respondent No. 3, it is clear that the respondent No. 3 had not submitted the Profit and Loss Account, whereas Para 8. 0 requires the bidder to give not only the balance-sheets, but also the Profit and Loss Accounts. While considering this aspect of the matter, it is pertinent to point out that it is not the pleaded case of the petitioner that the conditions, prescribed in Para 8, had not been followed by the respondent No. 3. It was, therefore, not necessary for the respondent No. 3 to offer any comment with regard to the conditions mentioned in Para 8. This apart, Mr. S. N. Sarma, learned Senior counsel, appearing on behalf of the respondent No. 1, has produced the entire record of the tender process. The record clearly reveals that the Profit and Loss Accounts were included in the tender documents submitted by the respondent No. 3.

(23.) Lastly, it has been submitted, on behalf of the petitioner, that the letter, dated 23. 08. 2006, issued by the respondent No. 2 recommending the case of the respondent No. 3 to the respondent No. 1, had suggested that since the offer of respondent No. 3 was 26. 76% higher than the estimated value, they may be called for negotiation to bring their price as close to the estimated cost as possible. While making such recommen-dation, it is contended on behalf of the writ petitioner, the respondent No. 2 ought to have suggested to the respondent No. 1 to call even the writ petitioner for the purpose of negotiation. Reacting to the submission, so made on behalf of the petitioner, Mr. N. Dutta, learned Senior counsel, appearing on behalf of the respondent No. 3, has pointed out that the letter, dated 18. 11. 1998, read with the letter, dated 24. 08. 2000 and 03. 08. 2000, issued by the Central Vigilance Commission under Section 81 (h) of the Central Vigilance Commissions Ordinance, 1998, clearly bars, with immediate effect, post tender negotiation, which forms the main source of corruption, except in the case of negotiation with the lowest tenderer (See Sargous Tours and Travels and Anr. Vs. Union of India and Ors. , reported in (2003) 3 GLT 202 [LQ/GauHC/2003/469] ).

(24.) In the face of the letter aforementioned, issued by the Chief Vigilance Commission, it is clear that neither the respondent No. 2 could have suggested nor the respondent No. 1 could have negotiated with the writ petitioner, for the price bid of the writ petitioner was much higher than the offer, which had been made by the respondent No. 3.

(25.) I must mention that Mr. N. Dutta, learned Senior counsel, appearing on behalf of the respondent No. 3, has also pointed out that the respondent No. 3 had furnished, amongst their bidding documents, complete details of the facts and circumstances, whereunder the respondent No. 3 was born as company and, in course of time, took over the business of M/s Fabtech Engineers with its assets and liabilities. Though all these facts, points out Mr. Dutta, were available to the writ petitioner even on the date, when the technical bid was opened, the writ petitioner did not mention any of these facts and suppressing these material particulars, the writ petitioner sought to obtain the interim directions from this Court bringing thereby to a grinding halt the entire tender process and execution of the contract work. The writ petitioner, thus, submits Mr. Dutta has not come to this Court with clean hands and a person, who acts in such a manner, as the writ petitioner has done, cannot seek remedy under Article 226. During the course of hearing, it has also been brought to the notice of this Court that all the relevant materials, which the respondent No. 3 has relied upon, to show as to how the respondent No. 3 happened to take over the business of M/s Fabtech Engineers with the assets and liabilities of the latter, were available in the bidding documents of the respondent No. 3. Hence, when the technical bid was opened on 15. 06. 2005, the writ petitioner knew the background in which the respondent No. 3 had claimed itself as a person eligible to participate in the tender process. What the writ petitioner claims to have found out from the office of the Registrar of the Companies was, as a matter of fact, available in the bidding documents on the very day, the technical bid was opened and yet not a whisper was made by the writ petitioner, in the writ petition, that it was on the basis of the past experience of M/s Fabtech Engineers and on the basis of the fact that the business of the said firm had been taken over, with all its assets and liabilities, by the respondent No. 3 that the respondent No. 3 had offered its bid in the tender process. The writ petition is completely silent and gives really no indication at all that even on the date, when the writ petitioner had filed the present writ petition, it was within their knowledge as to why and how the respondent No. 3 had considered themselves eligible and claimed to be eligible to participate in the tender process. Situated thus, there can be no escape from the conclusion that the writ petitioner has come to this Court with unclean hands.

(26.) Be that as it may, instead of dismissing the writ petition at the very threshold, as a petition suffering from suppression of material facts, this Court decided to consider the case of the writ petitioner on merit and even on merit, it is clear, as already indicated above, that the writ petitioner has not been able to make out any case for invoking this Courts extraordinary jurisdiction under Article 226.

(27.) In the result and for the foregoing reasons, this writ petition fails and the same shall accordingly stand dismissed with cost.

(28.) The interim directions, passed in this case, shall accordingly stand vacated.