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4.5 It was submitted that in the original tender, during the course of evaluation, the petitioner was not found to be eligible, and hence, in terms of the CVC guidelines, the tender was reissued. It was submitted that the petitioner is even otherwise disqualified as it does not have the requisite experience, therefore, even without the changed conditions, it would be disqualified even in the second tender. It was contended that the scope of judicial review insofar as the conditions contained in a tender are concerned, is very limited. It was submitted that the condition of excluding work experience as sub-contractor in the second tender is in consonance with the consistent policy of the SMC and has also been approved by this court and hence, no case has been made out for review of the tender conditions. Reliance was placed upon a decision of the Division Bench of this court in the case of Sapara Dilip Bharatbhai v. State of Gujarat, 2014 (3) GCD 2552, wherein, on behalf of the fourth C/SCA/14107/2019 JUDGMENT respondent therein, it was contended that one cannot come to a definite conclusion that the work done by a sub-contractor cannot be taken into consideration and in case of any ambiguity, his client should get the benefit of qualification clause. The court observed that, clause 3.1 having specifically excluded work completed as sub-contractor from consideration, there is no ambiguity or conflict between clause 3.1 and 4, and as such, any reasonable individual, on interpretation of clauses 3.1 and 4, would come to the conclusion that the role of an applicant as sub-contractor cannot be taken into consideration and only other past experiences, either as prime contractor or partner of a joint venture could be taken into consideration and the certificate from organizations referred to in clause 4 are provided for the certification of partnership with whom the applicant acted in the past as a partner of the joint venture. Therefore, the condition regarding excluding the work completed as a sub- contractor from consideration has been upheld by this court.

C/SCA/14107/2019 JUDGMENT 5.12 Reference was made to the further affidavit of the second respondent, wherein, it has been averred that the Ahmedabad Municipal Corporation, on 12.05.2010 had issued a work order in favour of M/s. Nish Automations Pvt. Ltd., the petitioner herein to prepare DPR/design SCADA with instrumentations and control based monitoring system for existing water supply and sewerage system of Ahmedabad city and approval of the DPR from JNNURM/funding agencies. Thus, M/s. Nish Automations Pvt. Ltd. was appointed as consultant by the Ahmedabad Municipal Corporation. It is further averred that the present petitioner being consultant to the Ahmedabad Municipal Corporation, has also provided qualification criteria for the tender issued by the AMC. In the said tender, the definition of similar work was given. As per the qualification criteria, the petitioner itself, as the consultant of AMC has provided that the joint venture/back to back award/ sub- contracting/ experience shall not be allowed. The second respondent has also submitted supporting documents in support of such averments at Annexure-R/I to the said affidavit. The learned counsel emphatically argued that when it comes to opining whether sub-contractor's experience is good or bad, the petitioner - company as consultant of the Ahmedabad Municipal Corporation says that it is not good; whereas, if the Surat Municipal Corporation adopts the same criteria, the petitioners object to the same. It was submitted that therefore, the criteria adopted by the SMC is a permissible criteria and does not warrant interference by this court.

12. The petitioners have also challenged the eligibility criteria in the second tender whereby it is provided that experience under sub-contract will not be considered by contending that the eligibility criteria has been amended only with a view to oust the petitioner - company from the tender process and to suit the requirements of the second respondent. In this regard, it may be noted that though in the first tender, there was no such condition excluding experience as sub-contractor; the petitioner - company still did not qualify in the technical bid as it has not successfully completed similar works during the last seven years ending 31.3.2019. In the second tender, there is a similar condition, and even according to the petitioners, for the second tender there is nothing erroneous about providing a condition for successfully having completed similar work during the last seven years ending 31.3.2019 as such tender has been invited in the financial year 2019-20. Therefore, whether or not the eligibility criteria are changed, the C/SCA/14107/2019 JUDGMENT petitioner - company would still not qualify in the technical bid as it lacks the requisite work experience. Therefore, any interference at the instance of the petitioners is merely an academic exercise, which would result in only delaying the project. Moreover, insofar as the contention regarding the eligibility criteria having been amended to suit the second respondent is concerned, since the second respondent does not rely upon experience of sub-contract, the change in the conditions does not either harm or help it.

19. The alternative relief prayed for in the petition is to declare qualifying criteria of the second tender notice No.CE/HYD/01/2019-2020 dated 27th May, 2019, insofar as it excludes experience under sub-contract to be illegal, arbitrary, unreasonable and violative of articles 14 and 19(1)(g) of the Constitution of India and to call for the work order issued by the SMC in favour of the second respondent and set it aside. As discussed hereinabove, even if the above condition excluding experience as sub-contractor were not inserted in the second tender, the petitioner - company would still not meet with the technical qualification criteria of having successfully completed similar work in the last seven years. Under the circumstances, examining the issue at the instance of the petitioners would be an exercise in futility. This court, therefore, would not embark upon such an inquiry.