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3.1 Next it was submitted that, the petitioner - company has been wrongly held to be disqualified in the technical bid in the first tender. In this regard, the attention of the court was invited to the communication dated 6th March 2019 of Sapient Techno Consultants submitting updated draft evaluation report of SMC SCADA, wherein, it has been stated that in their observation, work experience certificates submitted by both C/SCA/14107/2019 JUDGMENT bidders are not clear in terms of qualification requirement/does not meet tender requirements. Therefore, on 09.04.2019, notices were issued to both the tenderers to submit necessary documents. It was submitted that Sapient Techno Consultants had carried out evaluation of the technical bids and submitted a report dated 24.04.2019, wherein, it has been stated that the petitioner - company does not technically qualify in the tender; whereas, the second respondent technically qualifies for the tender. Referring to the qualifying criteria set out in the tender document, it was pointed out that clause (b) thereof provides for experience of having successfully completed "similar works" during last seven years ending 31.03.2019. It was submitted that when the tender was invited before 31.03.2019, the requirement of having completed similar works during the last seven years ending 31.03.2019, appears to be erroneous and the actual date should have been 31.03.2018. It was submitted that it is only because the tender provides for having successfully completed similar works during last seven years ending 31.03.2019, that the petitioner is held to be disqualified. Reference was made to the column indicating the enhancement factors that would be used for the cost of works executed and the financial figures to a common base for the value of works completed in India, to point out that the years referred therein are 2011-12 to 2017-18, to submit that the intention appears to be to consider the works completed by 31.03.2018 and that, 31.03.2019 appears to have been wrongly mentioned. It was submitted that, therefore, the petitioner - company has wrongly been disqualified in the technical bid though it met with the required technical criteria.

4.4 Reliance was also placed upon a decision of the Supreme Court in the case of Sam Build Well (P) Ltd. v. Deepak Builders, (2018) 2 SCC 176, wherein, the court held thus:

"10. Having heard the learned counsel for both the parties, it is important to set out the parameters for judicial review in cases like the present one. In a similar case, namely, Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd (2016) 16 SCC 818, Para 4 2(a) of Section III of the tender conditions in that case again spoke of a certain minimum number of "similar contracts" as C/SCA/14107/2019 JUDGMENT previous work experience. The question before this Court was whether an inter-State high speed railway project could be similar to metro civil construction work. After laying down the parameters of judicial review and referring to various judgments for the same, this Court held:

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.

6.3 It was submitted that the expression "similar works"

contemplates only automatic and control system. Consequently, the effective work experience cited has to be for automatic system for water supply. Every mechanical instrumentation and electrical work will not qualify as automation and control work. It was submitted that at the first instance the Consultant did not find certificate submitted by the second respondent to be adequate. The certificate supplied on 09.04.2019 has no details; therefore, the SMC contacted the employer who has not given the break up and hence, there was no basis for the SMC to find that the second respondent met with the eligibility criteria. It was submitted that it is the process which is challenged, namely, the irregularity and irrationality of the process.