MIS. CRRC CORPORATION LTD. v. METRO LINK EXPRESS FOR GANDHINAGAR & AHMEDABAD COMPANY (MEGA) COMPANY LTD.

## [2017] 5 S.C.R. 87 ## MIS. CRRC CORPORATION LTD. A v. METRO LINK EXPRESS FOR GANDHINAGAR & AHMEDABAD (MEGA) COMPANY LTD. (Civil Appeal No. 12065 of2016) MAYlS,2017 B ## [DIPAK MISRA AND AMITAVA ROY, JJ.] ## _Contract:_ _Respondent company inviting tenders/bids for a Project_ - C _Determination of the eligibility and qualification criteria before opening 'technical bids' and 'price bids' of the bidders_ - _Bid of the appellant-Corporation rejected disqualifying it for further participation, on the ground of deficiency in experience in terms of cl. 2.4 of Section Ill of Tender Documents_ - _Whether the appellant-_ D _Corporation, to meet the experience norm, as prescribed by cl. 2.4, could utilize the experience of its subsidiary companies (not being the constituents of Joint venture or a Consortium) to qualify in the initial bid_ - _Held: As per cl. 4.1 of s.1 of Instructions to Bidders, a bidder can be a single entity or a combination of such entities in the form of a Joint Venture or a Consortium_ - _A single entity would_ E _include a Government owned entity with its I 00% wholly owned subsidiaries eligible to bid in terms of clause 4.1 of the tender conditions_ - _Appellant-Corporation is a Government owned Corporation_ - _Therefore, disqualification of the appellantCorporation is unsustainable being grossly illegal, arbitrary and_ F _perverse._ ## Allowing the appeal, the Court HELD: 1. A plain reading of clause 4.1 of Section 1 of Instructions to Bidders reveals that a bidder can be a single entity or a combination of such entities in the form of a Joint Venture or .G a Consortium under an existing agreement or with the intent to enter into such an agreement supported by a letter of intent. Thus a single entity has been construed to be a valid bidder for all intents and purposes. [Para 34) (111-A) H 87 88 [2017] 5 S.C.R. SUPREME COURT REPORTS A 2. A single entity would assuredly include such a government owned entity along with its 100% wholly owned subsidiaries. This is more so on the touchstone of otherwise imperative facilitation of a broad based participation of entities with competing worth and capabilities, in the overall interest of B the timely and quality execution of a public project. Having regard to the magnitude of the project as well as the experience and expertise essential for the quality execution thereof, there seems to be no justification to infer, at the first place, to exclude a government owned entity with its 100% wholly owned subsidiaries to be ineligible to participate in the process. [Para 35] [111-B-D] A c 3. The status and the entitlements of the appellantcorporation, as already adjudicated in _*Consortium of Titagarh Firema Adler SPA_ case, as a single entity bidder in the present tender process would also by the yardstick of simple logic and analogy be available to it. Absence of the words "government D owned entity" in clause 4.1, presently under consideration, is of no consequence. In clause 4.1 involved in _*Consortium of Titagarh Firema Adler SPA_ case, "government owned entity" had been contemplated as one of the bid.de rs in contradistinction to "private entity" and "any combination of such entities" in the form of a joint venture ..... The expression used in the present clause 4.1 E being "single entity", understandably, it is inclusive of a private as well as a government owned entity. The unit envisaged as a single entity is thus independent of any combination or formption in the form of a Joint Venture or a Consortium and thus is visualised to be one integral and composite whole. In such a logical F premise, a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of clause 4.1 of the tender conditions and is to be regarded as single, coherent and homogeneous existence and not a disjointed formation. [Para 37] [111-G, H; 112-A-D] G 4. The queries and the clarifications, relatable to the discord, do not substantiate the plea of the respondent in any manner whatsoever. The foundation of rejection of the appellant's bid is the clarification to the query mainly at serial No. 50. It is patent therefrom that it was in response to a query made by a subsidiary company to allow for its benefit, the experience of the parent H • 89 ## MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY company/group companies to meet the qualification requirement A with regard thereto. It was in that context that the clarification furnished was that the subsidiary company/group companies may bid together with the parent company as Joint Venture/ Consortium member, for parent/group company's experience to be taken into account. This clarification was extended and applied B vis-a-vis the appellant qua clauses Nos. 2.4.1, 2.4.2(a), 2.4.2(b) and 2.4.2.(c) to disqualify it on the ground that on stand alone basis, it was deficient in the experience prescribed and that it could not have availed of the experience of its subsidiary companies. This clarification has no application to its case and, therefore, the decision to disqualify it on this ground is apparently c arbitrary, discriminatory, unreasonable, illogical and nontransparent, thus rendering the same irreversibly illegal, unjust and unfair. The interpretation offered by the respondent and endorsed by the High Court in the contextual framework is thus patently impermissible and absurd. [Para 38] [113-A; 112-D-H] c D 5. Not only the appellant Corporation had offered its responses to the clarifications sought for, its status as a government owned corporation, by no means, has been disputed by the respondent. Further, in the face of its demonstrated structural integrity and functional unity _qua_ its subsidiaries with all consequential legal implications, the apprehension of the respondent that the subsidiary companies of the appellant, if necessity so arises, would not be available for the execution of the project, not being a party to the contract, to say the least, is speculative, unfounded, farfctched and wanting in reason and rationale. Whether the subsidiary companies of the appellant would be responsible for the execution of the work, is evinced by the formational specifics and functional dynamics of the appellant and its wholly owned subsidiary companies, as noticed in _*Consortium of Titagarlt Firema Adler SPA_ case in the affirmative and does not call for further dilation. [Para 39) [113B-D] E F G 6. Therefore, the impugned disqualification of the appellant on the ground of deficiency, in experience in terms of clause 2.4, is unsustainable in law and on facts being grossly illegal, arbitrary and perverse. [Para 40) [113-E) H [2017] 5 S.C.R. 90 SUPREME COURT REPORTS A _*Consortium of Titagarh Firema Adler SPA -Titagarh Wagons Ltd. v. Nagpur Metro Rail Corporation Limited_ (2017) 7 sec 486 - relied on. _New Horizons Ltd. and another v. Union of India and others_ (1995) 1 SCC 478 : [1994] 5 Suppl. SCR 310; B _A/cons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & Am:_ 2016 (8) SCALE 765: (2016] 3 SCR 551; _Tamil Nadu Generation and Distribution Corporation Ltd. v. CSEPDI_ - _Trishe Consortium_ 2016 (10) SCALE 69 : [2016] 7 SCR 495; _MontecariO Ltd. v. NTPC Ltd._ 2016 (10) SCALE 50 : [2016) 8 SCR c 224; _Core Projects and Technologies Ltd. v. The State of Bihar_ 2011 (59) BLJR 183; _Rohde and Schwarz Gmbh and Co. Kg. v. Airport Authority of India and Anr._ (2014) 207 DLT 1 - referred to. ## D ## Case Law Reference |D|Case Law Reference|Case Law Reference|| |---|---|---|---| ||[1994)5 Suppl. SCR 310|referredto|Para22| ||[2016]3 SCR551|referredto|Para23| |E|(2016)7 SCR 495|referredto|Para23| ||[2016)8 SCR 224|referred to|Para23| ||2011(59)_BLJR183|referred to|Para23| |F|(2014) 207 DLT 1|referredto|Para23| ||(2017)_1_sec486|relied on|Para24| CIVIL APPELLATE JURlSDICTION: Civil Appeal No. 12065 of2016. G • From the Judgment and Order dated 18.11.2016 of the High Court of Gujarat atAhmedabad in Special Civil Application No. 18439of2016. C. A. Sundaram, Sr. Adv., Prabhjit Jauhar, Galav Sharma, Ms. Anupama Kaul, M. P. Singh, S. S. Jauhar, Advs. for the Appellant. H 91 # _MIS_ CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY Mukul Rohatgi, AG., MaheshAgarwal,Abhinav Agrawal, Munjaal A Bhatt, Rishabh Parikh, E. C. Agrawala, Advs. for the Respondent. The Judgment of the Court was delivered by **AMITAVA ROY, J.** I. The dissension centers around the exposition of an eligibility norm engrafted in the tender conditions qua a prestigious project with global participation. The appellant stands disqualified by the respondent on the touchstone of its perception of the relevant qualifying criterion as endorsed by the High Court vide judgment and order dated 18.11.2016 rendered in Special Civil Application No.18439 of2016, thus propelling it to this Court for redress. B c 2. We have heard Mr. C.A. Sundaram, learned senior counsel for the appellant and Mr. Mukul Rohatgi, learned senior counsel for the respondent. 3. The pleaded facts though encompass various facets, those having a direct bearing on the issue raised, only would be alluded to. D 4. The appellant-corporation has introduced itself to be an amalgam of _Mis._ CSR Corporation Ltd. and _Mis._ CNR Corporation Ltd., both claimed to be the world's largest and oldest suppliers of rail transport equipments with most complete product lines and leading technologies with their business activities enfolding R&D design, manufacture, repair, . ., E sale, lease and technical services for railway rolling stock, EMUs, metro coaches, urban rail transit vehl.Cies, engineering machinery, consulting services etc. along with several subsidiaries under their full control. On 09.03.2015, these two entities namely; _Mis._ CSR Corporation Ltd. and _Mis._ CNR Corporation Ltd. got merged after securing the approval of F the concerned state authorities, as a result whereof, all assets of these ·two integrant corporations, together with liabilities, businesses, qualifications, staff, contracts along with all rights and obligations stood transferred to the appellant-corporation w.e.f. 01.06.2015. Following such assimilation, the appellant-corporation was, as a joint stock limited company incorporated in the Peoples Republic of China with limited G liability and owned and controlled by the Chinese Central Government. As a consequence of such merger, the subsidiaries of _Mis_ CSR. Corporation Ltd. and _Mis_ CNR. Corporation Ltd., became the subsidiaries of the appellant-corporation and their names were changed as well. H [2017] 5 S.C.R. > 92 SUPREME COURT REPORTS A According to the appellant, thereafter it successfully participated and was awarded various international contracts, based on the experience of its subsidiary companies. 5. On 15.01.2016, the respondent company (hereinafter to be referred to also as "MEGA") invited tenders/bids for the project "Design, B manufacture, supply, installation, testing, commissioning of96 nos. of standard gauge cars and training of personnel" and organized a pre-bid meeting, amongst others on 12.03.2016 inviting all prospective bidders. The last date for submission of the bids was eventually fixed on 25.05.2016. - c 6. As per the tender conditions, the offer was to be made in three envelopes, to be submitted simultaneously, as hereunder: - (i) First Envelope called - "Initial Filter-cum-Qualification Requirement Bid''. D - (ii) Second Envelope - "Technical Bid" (iii) Third Envelope - "Price Bid" 7. In response to the notice inviting tender, the appellant and three others namely; (i) Consortium of Bombardier Transportation India Pvt. E Ltd. & Bombardier Transportation GmbH; (ii) _Mis._ Hyundai Rotem Company (HRC) and (iii) Consortium of Alstom Transport India Ltd., & Alstom Transport SA, offered their bids by the date fixed. 8. As per the tender prescriptions, an affirmative determination of the eligibility and qualification criteria, on the basis of the particulars F furnished in the first envelope was to be the pre-requisite for the opening of the envelopes containing the "technical bids" and the "price bids" in that order applying the same test. Prior thereto, pre-bid meetings were held, as referred to hereinabove, in which representatives of various participating bidders attended and submitted their queries for clarifications as per clause No.7 oflnstructions to Bidders, which were accordingly G deliberated upon. Clarifications, as sought for, were furnished accordingly. The appellant has averred that it did submit the envelopes, as required, containing all essential documents/certificates, as mandated fulfilling, amongst others, the requirements of the General/Specific Experiences. On 25.05.2016, as scheduled, the envelopes containing the "Initial Filter- H MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABAD COMPANY [AMITAVAROY, J.] 93 cum-Qualification Requirement Bid" of the four bidders were opened A and thereafter on 09.06.2016, the respondent raised 16 queries and required the appellant to submit its response thereto. 9. The queries, amongst others, related to the norm of experience as contained in clause 2.4 of Section III of the Tender Documents. It is inessential to detail the queries and the replies offered by the appellant, B having regard to the focused contentions raised before us, as would be referred to shortly hereinafter. Suffice it to state, as claimed by the appellant, it did adequately and completely answer the queries and supplemented the same with contemporaneous records. 10. It was thereafter that the appellant came to learn that the respondent on 15. I 0.2016 had rejected its "Initial Filter-cum-Qualification Requirement Bid" and thus had disqualified it for further participation in the tender process. The appellant thereafter unsuccessfully pleaded with the respondent corporation by filing various representations and requests and the same having failed to evoke any affirmative response, sought refuge of the legal process. Prior thereto, it was served as well with a caveat application filed by the respondent in the High Court mentioning about its disqualification following the rejection of its "Initial Filter-cum-Qualification Requirement Bid" . c D 11. The respondent-corporation, apart from raising preliminary objection to the maintainability of the writ petition filed by the appellant, pleading non-joinderofnecessary parties, i.e. the surviving tenderers in the fray, asserted that the project was financed through budgetary resources of State of Gujarat, Government of India and Japan International Co-operation Agency (for short hereinafter to be referred to as "JICA"). It also mentioned that through international competitive Bidding, the General Engineering Consultant, which is a consortium of four renowned companies, had been appointed to provide independent expert professional advice regarding the preparation of tender documents, evaluation of tender offers etc. for works related to the Ahmadabad Metro Rail Project - Phase I, i.e. the project in hand. While generally admitting the facts pertaining to the issuance of the notice inviting tender on 15.01.2016 and the participation of the four bidders including the appellant, MEGA, however, categorically asserted that in course of the pre-bid meetings, it was clarified in response to a pointed query, that the E F G H 94 [2017) 5 S.C.R. SUPREME COURT REPORTS A experience of subsidiary companies/group companies will not be taken into account in any case and that if the parties are desirous of such experience being counted, the subsidiary companies/group companies would have to form a Joint Venture (hereafter referred to also as "JV") or a Consortium. B 12. According to it, the first envelope containing the "Initial Filtercum-Qualification Requirement Bid" of the participating bidders were opened in presence of their representatives and on the next date, those were forwarded to the General Engineering Consultant (for short, hereinafter referred to as "GEC") for evaluation thereof and submission ofreport in connection therewith. The GEC, in turn, vide its letter dated C 09.06.2016 submitted its interim report recommending that further clarifications be sought for from the respective bidders, on the points as outlined therein. It was thereafter that the respondent forwarded 16 queries to the appellant _inter alia_ on the aspect of experience, as contemplated in clause 2.4 of the Evaluation and Qualification Criteria D of the tender documents. 13. It is the stand of the MEGA that the appellant, instead of furnishing the clarifications as sought for, submitted additional details, thereby virtually revising its original offer and further endeavoured to make up the deficiency in its experience, as prescribed, by falling back E on the experience of its so called subsidiary companies. According to MEGA, as the subsidiary companies of the appellant, retained their independent existence as separate legal entities, their experience, in terms of the relevant tender norms, could not be counted to be that of the appellant as it (appellant) did submit its offer as a single entity and neither as a joint venture nor as a consortium with its subsidiary companies. F Though in its reply, the MEGA also expressed its reservation with regard to the appellant's stand alone financial credentials, it is unnecessary to refer thereto, as the same did not figure in course of the rival exchanges in the appeal. 14. The GEC, according to the MEGA, after scrutinizing the bid G documents together with the clarifications re-laid before it, opined that the appellant was found to be non-responsive to the requirements of clauses 2.3 and 2.4 of Section ill relating to "Evaluation and Qualification Criteria" of the "Tender Document". It would be sufficient for the present purpose to extract the relevant excerpt of the findings of the GEC vis-aH vis clauses 2.4. l and 2.4.2 for immediate reference: 95 MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABAD COMPANY [AMIT AVA ROY, .T.] A |Clauses|RelevantEligibilityand<br>QualificationCriterionof<br>TenderDocumentinquestion|GistofFindingarrivedatby<br>GEC| |---|---|---| |2.4.l|GeneralExperience<br>Experiencein the roleofprimeCRRCdoes<br>notmeetthis<br>contractor(singleentityorJV' criterion.<br>SincetheParent<br>member),<br>Subcontractor,<br>orCompany<br>cannot<br>claim<br>managementcontractorforatexperienceofitsSubsidiary<br>leastlastten(10)yearsstartingCompanyevenifit has 100%<br>I"January,2006.<br>ownership<br>as<br>long<br>as<br>a<br>**companyis a separatelegal**<br>entity.<br>CRRChassubmitted<br>itsofferasa sole Bidder.<br>It<br>haLJ!J.iQ__n o!__,§_ub•ni.!t,_g__l!JJY.<br>intentofforming<br>a<br>joint<br>venture/consortium<br>with<br>its<br>Subsidiary<br>Companv.<br>supportedby a letterofintent<br>intermsofITB para 4.1.As<br>per<br>pre-bid<br>meeting<br>clarification<br>issued<br>to<br>ail<br>bidders<br>'The<br>subsidiary<br>company/groupcompanymay<br>bidtogetherwiththeparent<br>companyas aDV/consortium<br>member<br>for<br>parents/group<br>company<br>experie.nce<br>to<br>be<br>taken intoaccount.|| |2.4.2<br>(a)|SpecificExperience<br>Aminimumnumberoftwo (2)CRRCdocs<br>not _meet this<br>similarcontracts<br>that<br>havecriterion<br>since<br>t!i.,<br>been<br>satisfactorily<br>andexecution/completionofany<br>substantiallycompletedas acontract<br>by<br>its<br>Subsidiary<br>primecontractorconsideredincompanies<br>cannot<br>be<br>favourconsidered<br>ofCRRCconsidcn::_tjjnf~.Y.QJ!.LQLCR.R_i:_.<br>(singleentityorJVmember)<br>betweenI '<br>1January,2006and<br>theBidsubmissiondeadline.|| _96_ [2017] 5 S.C.R. SUPREME COURT REPORTS A 15. This report dated 28.07.2016 of the GEC was thereafter forwarded to JICA for its concurrence and the latter gave its "no objection" and instructed MEGA to proceed with the technical evaluation of the bids of the remaining bidders and to finalize the process early. 16. Accordingly, the remainingthree bidders were declared to be B qualified at the stage of "Initial Filter-cum-Qualification Requirement Bid" by discarding the appellant, as it failed to fulfill the requirements contemplated in clause 2.3 "Financial Situation" and clause 2.4 "Experience" of Section III of the "Evaluation and Qualification Criteria" of the "Tender Document". c 17. According to MEGA, the appellant was intimated of its disqualification by letter dated 02.11.2016. It has maintained that the impugned action is strictly in accordance with the tender norms and being objective and transparent, is unassailable. 18. Referring to clause 4. 1 of Section I of the "Tender Document", D the appellant, in reiteration, pleaded that the clarification referred to by MEGA excluding the experience of the subsidiary/group companies from being accounted for in absence of a joint venture or consortium was in respect of a query in a totally different context and was wholly inapplicable to its bid. According to the appellant, the query was raised by a subsidiary company before the respondent as to whether it could avail the experience E of its parent/group company and in response thereto, it was explained that if a subsidiary company did wish to use the experience of the parent company, the parent company or the group company should form with it a Consortium or a _N,_ as the case may be. The appellant thus insisted that it having submitted its bid, as a single entity being the holding company F of its subsidiaries and had claimed the experience of its fully owned subsidiaries, the clarification relied upon by the GEC and acted upon by MEGA to oust it (appellant) from the process as disqualified, was.patently flawed. It further stood by its responses to the queries made, contending that those adequately did answer the same and demonstrate that its bid was fully compliant of the essential tender conditions. G 19. The High Court on an analysis of clause 2.4 of the "Evaluation and Qualification Criteria" contained in Section III of the "Tender Documents", in the backdrop of the rival orientations founded on the pleaded facts and the documents in support thereof, held that while a holding company may control its subsidiary companies, which may have H MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY[AMITAVAROY,J.) 97 the requisite experience, as the subsidiary companies would not be required A to execute the work, the holding company cannot avail the benefit of their experience. It was of the view that since the subsidiaries have an identity separate from the holding company, they _ipso facto,_ by virtue of they being subsidiaries of the holding company, do not become a party to the contract and are in no manner liabk to the employer for the B execution thereof. It distinguished the contingency, where a J.V. or a Consortium of different companies/ persons is formed, each constituent whereof would be liable for execution of the contract. It was of the estimate that in such a formation of a J.V. or a Consortium, the benefit of experience of the constituent companies would be available to the J.V. or a Consortium and not otherwise. In essence, it thus held that the C appellant-corporation on a stand alone basis, did not possess the requisite experience, as laid down in the tender conditions and that it was not permissible for it to avail the experience of its subsidiaries to make up such deficiency. As a community of interest in the performance of the work between the appellant and its subsidiary companies, was absent, D the impugned action of disqualifying it for lack of experience in terms of clause 2.4 of the "Evaluation and Qualification of Criteria" could not thus be faulted. B C D 20. To reiterate, the parties before us are at issue only on the aspect as to whether the appellant-corporation, to meet the experience _E norm, as prescribed by clause 2.4 of the "Evaluation and Qualification of Criteria", can utilize the experience of its subsidiary companies to qualify in the "Initial Filter-cum-Qualification Requirement Bid". No other contention has been ·raised. The present scrutiny thus would be - limited only to this facet of the _lis._ 21. It has been insistently urged on behalf of the appellant that the exposition of clause 2.4 of the "Evaluation and Qualification of Criteria" furnished on behalf ofMEGA and endorsed by the High Court is patently erroneous and is wholly incompatible with the letter and spirit of clause 4.1 and disregardful of the materials on record pertaining to the constitution of the appellant and the functional mechanism qua its subsidiary companies and is thus liable to be dismissed as absurd, arbitrary and in defiance oflogic. F G 22. Mr. Sundaram has argued that it being apparent on the face of the records that the query in response to which, the clarification provided by the appellant-corporation was that a subsidiary company/ H 98 [2017] 5 S.C.R. SUPREME COURT REPORTS A group company may bid together with the parent company as a J.V./ Consortium member, for parent/group company experience to be taken into account, had been raised by a subsidiary company with a request to allow the experience of the parent company/ group company to be taken into account for meeting the qualification requirement of experience of a subsidiary company. The learned senior counsel has thus maintained B that this clarification had no application whatsoever to the appellantcorporation who had offered its bid as the single entity, as permissible under clause 4.1 and in view of its formational and functional configuration, it was legally entitled to avail the experience of its subsidiaries to meet the tender conditions. According to Mr. Sundaram, C the disqualification of the appellant-corporation, in this overwhelming legal and factual premise, is grossly arbitrary, unreasonable and unjust calling for the intervention of this Court. The learned senior counsel principally relied in endorsement ofhis assertions on the decision of this Court in _New Horizons Ltd. and another Vs. Union of India and_ D _others-(1995)_ I SCC478. 23. In persuasive refutation, learned senior counsel for the respondent has maintained that as the appellant squarely failed to meet the technical eligibility, predicated in clauses 2.4.1 and 2.4.2(a),(b) and (c) on a correct interpretation of the scope and ambit of clause 4.1, in conjunction with the clarifications provided, no interference with the view E taken by the High Court is warranted. As admittedly the appellant's experience sans that of its subsidiaries falls short of the one mandated by the tender conditions, the impugned action of MEGA is unimpeachable, he urged. Mr. Rohatgi argued that merely because the subsidiary companies of the appellant, which by themselves are separate legal F entities, are eligible in terms of experience, it does not _ipso facto_ confer eligibility to it (appellant), the parent holding company. According to him, the appellant having applied as a single entity in the contract if awarded would be _inter se,_ the appellant and the MEGA and the subsidiary companies would not figure in the deal, so much so that it would be impossible to secure their performance or to hold the subsidiary companies G responsible in case ofan eventuality necessitating such an initiative. The learned senior counsel argued that as was demonstrable from clause 4.1 as well as 2.4 of the tender conditions in question, the experience of a subsidiary company was permissible to be availed only ifit was a member of a J.V. or a Consortium. The appellant, having offered its bid as a H single entity, as a holding company, it was not entitled to utilize the MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY [AMITAVAROY, J.] 99 experience of its subsidiary companies to make up the short fall in its A experience, as prescribed by the tender conditions. While contending that the dictum in _New Horizons Ltd._ (supra) was of no avail to the appellant in the facts of the case, the learned senior counsel sought to draw sustenance principally from the following decision of this Court: - (1) Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail B Corporation Ltd. & Anr. - 2016 (8) SCALE 765 - (2) Tamil Nadu Generation and Distribution Corporation Ltd. Vs. CSEPDI - Trishe Consortium - 2016 (IO) SCALE 69 - (3) Montecarlo Ltd. Vs. NTPC Ltd. - 2016 (10) SCALE 50 c - (4) Core Projects and Technologies Ltd. Vs. The State of Bihar - 2011 (59) BLJR 183 - (5) Rohde and Schwarz Gmbh and Co. Kg. Vs. Airport Authority oflndia and Anr. -(2014) 207 DLT 1 24. The contentious pleadings and the assertions based thereon have been duly evaluated. The issue that confronts the present adjudicative pur8uit, did fall for the scrutiny of this Court, albeit in the context of another project, in which the appellant (respondent No. 2 therein) had been awarded the contract, a decision that stood upheld in C.A. Nos. 1353-1354 of2017- _Consortium ofTitagarh FiremaAdler SPA -Titagarh Wagons Ltd. vs. Nagpur Metro Rail Corporation Limited_ (decided on 9.5.2017). Clause 4.1 dealing with eligibility cnteria of the prospective tenders, as involved in that decision, deserves extraction to facilitate an immediate comparison of the text thereof with _/_ that of clause 4.1 as involved herein. D E F "4.1 A bidder may be a firm that is a private.entity, a governmentowned entity - subject to ITB 4.3 - or any combination of such entities in the form of a joint venture (N) under an existing agreement or with the intent to enter into such an agreement supported by a letter of intent. In the case of a joint venture, all members shall be jointly and severally liable for the execution of the contract in accordance with the contract terms. The JV shall nominate a representative who shall have the authority to conduct all business for and on behalf of any and all the members of the _N_ during the bidding process and, in the event the _N_ is awarded G H 100 [2017] 5 S.C.R. SUPREME COURT REPORTS A B c D E F the contract, during contract execution. Unless specified in the BDS, there is no limit on the number of members in a JV." 25. Section V of the "Tender Documents" of that contract dwelling on "eligibility criteria and social and environmental responsibility" further mandated that bidders that are government owned enterprises or institutions may participate, only if they can establish that they are (i) legally and financial autonomous (ii) Operate under commercial law. 26. The award of the contract for "design, manufacture, supply, testing, commissioning of69 passenger rolling stock (Electrical Multiple Units)" and training of personnel at Nagpur Metro Rail Project, which was funded by KfW Development Bank, Germany in favour of the appellant was unsuccessfully assailed before the High Court, a verdict that was upheld by this Court, as referred to hereinabove. 27. One of the principal limbs of challenge against the eligibility of the appellant was its lack of experience as a single entity and that it having submitted its bid on the strength of the experience of the subsidiaries of its erstwhile parent/original companies, following the merger whereof it had come into existence, it was not eligible as per the qualification norms. It was urged there as well that unless the subsidiaries are the constituents of a J. V. or a Consortium, their experience cannot be taken into consideration to gauge the experience of the holding company and that as it on a standalone basis, was not possessed of the requisite experience as prescribed, it ought to have been disqualified on that count alone. > 28. Following an exhaustive analysis of the facts, the relevant tender conditions as well as the law adumbrated by the pronouncements of this Court, this plea against the eligibility of the appellant-corporation was negated. 29. It would be advantageous, in view of the striking analogy of the overall perspectives, to recount the relevant observations recorded therein and having a decisive bearing on the issue under scrutiny. G H "24. The core issue, as we perceive, pertains to acceptance of the technical bid of the respondent No. 2 by the 1 '' res9ondent and we are required to address the same solely on the touchstone of eligibility criteria regard being had to the essential conditions. The decision on other technical aspects, as we are advised at present, is best left to the experts. We do not intend to enter into M/S CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY[AMITAVAROY,J.] I 0 I the said domain though a feeble attempt has been made on the A said count. . . . ,· ... 26. What is urged before this Court is that the respondent No. 2 could not have been regarded as a single entity and. in any case. it could not have claimed the experience of its subsidiaries because no consortium or joint venture with its subsidiaries was formed. With regard to relationship of holding and subsidiary companies, we have been commended to the authorities in _Ba/want Rai Saluja_ (supra) and also the judgment of the Delhi High Court in _Rohde and Schwarz Gmbh and Co. K.G._ (supra). The essential submission is that respondent No. 2 as the owner of the subsidiary companies including their assets and liabilities, cannot claim their experience and there is necessity to apply the principle of"lifting th~ corporate veil'', as has been laid down in _Renusagar P'Jwer Co._ (supra) and _Life Insurance Corporation of India v. Escorts Ltd. and others'._ It is also argued that the Government owned entity cannot be treated differently, for a Government owned entity is distinct from the Government and, for the said purpose, inspiration has been drawn from the authority in _Western Coalfields Limited v. Special Area Development Authority, Korba and another._ It has also been urged that when the tender has required a particular thing to be done, it has to be done in that specific manner, for the law envisages that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. For the aforesaid purpose, inspiration has been drawn from the authority in _Central Coalfields Ltd._ (supra) wherein reliance has been placed on _Nazir Ahmad v. King Emperor3._ 27. Before we proceed to deal with the concept of single entity and the discretion used by the l" respondent, we intend to deal with role of the Court when the eligibility criteria is required to be scanned and perceived by the Court. In _Montecarlo Ltd._ (supra), the Court referred to _TATA Cellular_ (supra) wherein certain principles, namely, the modern trend pointing to judicial restraint on administrative aCtion; the role of the court is only to review the 1 (I 986) 1 sec 264 2 (1982) 1 sec 125 'AIR 1936 PC 253 B c D E F G H [2017] 5 S.C.R. 102 SUPREME COURT REPORTS A B c D E F G manner in which the decision has been taken; the lack of expertise on the part of the court to correct the administratiye decision; the conferment of freedom of contract on the Government which recognizes a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative S!Jhere or quasi-administrative sphere, were laid down. It was also stated in the said case that the administrative decision must not only be tested by the application ofWednesbury principle of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala tides. The two-Judge Bench took note of the fact that in _Jagdish Manda/_ (supra) it has been held that, ifthe decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The decisions in _Master Marine Services (P) Ltd. v. Metcalfe_ & _Hodgkinson (P) Ltd. and another4, B.S.N. Joshi_ & _Sons Ltd. v. Nair Coal Services Ltd. and others[5 ]_ and _Michigan Rubber (India) Ltd._ (supra) have been referred to. The Court quoted a passage from _A/cons Infrastructure Ltd._ (supra) wherein the principle that intemretation placed to appreciate the tender requirements and to interpret the documents by owner or employer unless mala fide or perverse in understanding or appreciation is reflected, the constitutional Courts should not interfere. It has also been observed in the said case that it is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. After referring to the said authority, it has been ruled thus: "24. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders· are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from ------- • (2005) 6 sec 138 H ' (2006) 11 sec 548 _MIS_ CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY [AMITAVAROY, J.] 103 those unconnected with the owner's organization is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the mi.tters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This !!rena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean. these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for ifthe approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints." A B c D E F 29. In _Reliance Telecom Ltd. and a11other v. U11io11 of l11dia and another,_ the Court referred to the authority in _Asia Foundation_ & _Construction Ltd. v. Trafalgar House_ G _Construction (I) Ltd. and others_ wherein it has been observed that though the principle of judicial review cannot be denied so far as exercise of contractual powers of Government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of a contract H G [2017] 5 S.C.R. 104 SUPREME COURT REPORTS A power has been exercised for any collateral purpose. Thereafter, the Court in _Reliance Telecom Ltd._ (supra) proceeded to state thus: B "75 .... In the instant case, we are unable to perceive any arbitrariness or favouritism or exercise of power for any collateral purpose in the NIA. In the absence of the same, to exercise the power of judicial review is not warranted. In the case at hand, we think, it is a prudent decision once there is increase ofrevenue and expansion of the range of srrvice." And again: c D "76. It needs to be stressed that in the matters relating to complex auction procedure having enormous financial ramification, interference by the Courts based upon any perception which is thought to be wise or assumed to be fair can lead to a situation which is not warrantable and may have unforeseen adverse impact. It may have the effect potentiality of creating a situation of fiscal imbalance. In our view, interference in such auction should be on the ground of stricter scrutiny when the decision making process commencing from NIA till the end smacks of obnoxious arbitrariness or any extraneous consideration which is perceivable." E F G 32. Respondent No. 2, as is evident, is a company owned by the People's Republic of China and, therefore, it comes within the ambit of Clause 4.1 of the bid document as a Government owned entity. We have already reproduced the said clause in earlier part of the judgment. As perceived by the 1 fil respondent. a single entity can bid for itself and it can consist of its constituents which are wholly owned subsidiaries and they may have experience in relation to the project. That apart. as is understood by the said respondent, where the singular or unified entity claims that as a consequence of merger, all the subsidiaries form a homogenous pool under its immediate control in respect of rights, liabilities, assets and obligations. the integrity of the singular entity as owning such rights, assets and liabilities cannot be ignored and must be given effect. While judging the eligibility criteria of the second respondent, the l fil respondent has scanned Article 164 of the Articles of Association H MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY[AMITAVAROY,J.] I 05 of the respondent No. 2 which are submitted along with the bid A from which it is evincible that the Board of Directors of the respondent No. 2 has been entrusted with the authority and responsibility to discharge all necessary and essential decisions and functions for the subsidiaries as well. According to the I >t respondent. the term "Government owned entity" would include B a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration. Learned senior counsel for the 1 fil respondent has drawn our attention to the "lifting c of corporate veil" principle or doctrine of"piercing the veil" and in that context. reliance has been placed on _Littlewoods Mail Order Stores, Ltd. v. McGregor6, DHN Food Distributors Ltd. and others v. London Borough of Tower Hamlets[7 ]_ and _Harold Holdsworth_ & _Co. (Wakefield) Ld. v. Caddies[8] •_ Learned senior D counsel has also placed reliance upon the principles stated in _Renusagar Power Co._ (supra) that have been reiterated in _New Horizons Ltd._ (supra). In the written submission filed on behalf of the I" respondent, the relevant paragraphs from _Renusagar Power Co._ (supra) have been copiously quoted. It is also urged that in the current global economic regime the multinational E comorations conduct their business through their subsidiaries and, therefore, there cannot be a hyper-technical approach that eligibility of the principal cannot be taken cognizance of when it speaks of the experience of the subsidiaries. It is also contended by Mr. Subramaniam that in the context of fraud or evasion of legal F obligations, the doctrine of "piercing the veil" or "lifting of the corporate veil" can be applied but the said principle cannot be taken recourse to in a matter of the present nature. c E F 33. With regard to the satisfaction of the I fil respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification G > 6 (1969) 3 All ER 855 > 7 (1976)3 All ER462 ' (1955) I WLR 352 H [2017] 5 S.C.R. 106 SUPREME COURT REPORTS A of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the l" respondent and also the no-objection has been received from Ktw Development Bank. Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the l ''respondent: - B "36. That it is further clear from the record that besides being the lowest bidder, the experience of R 2 in supplying Metro Trains across the world exceeds the Petitioner's experience by a huge margin. Where for clause 12, R 2 has shown a figure of 594 Metro Cars, Petitioner has shown only 72 Cars; - c and for clause 12.1 where R 2 has shown 432 Cars, Petitioner has again shown only 72 Cars. This vast experience of R 2 would be beneficial for the project and would further public interest. 37. That R 1 without any malice, or malafide has treated R 2 D along with its I 00% subsidiaries as one entity. This understanding of the clause has been at the ends ofboth parties viz. R 1 and R 2, who were _ad idem vis-a-vis_ the eligibility of the parent company _io_ bid using the experience and executing the contract through its various 100% wholly owned E subsidiaries. 38. That the above understanding ofR I of treating R 2 along with its 100% subsidiaries is supported by the understanding of the Delhi Metro Rail Corporation Ltd., which has on a similarly, if not same, worded bid-document granted the tender/ F agreement to R 2, which had even there bid as a parent company claiming experience of and execution through 100% wholly owned subsidiaries. > 39. That moreover, there is no bar, whatsoever, express or implied, in the tender document to treat the parent company along with its I 00% wholly owned subsidiaries as one entity. G Therefore, the scope of judicial review should be limited in adjudging the decision taken by RI in the best interest of the project, and thereby, the public. 40. That arguendo, no prejudice, whatsoever, has been caused to the project or to other bidders including the Petitioner by the H _MIS_ CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY[AMITAVAROY,J.] l 07 above understanding of the tender conditions by R 1. It is A humbly submitted that R 2 fulfilled all the technical requirements. The bid-document itself provided for bidding as a consortium, and did not require in such a case fulfilment of any material condition, which ifnot fulfilled would prejudice any parties or the project. Moreover, the scheme of the bid-document is such B that it itself provides for a Parent Company Guarantee. According to this Parent Company Guarantee Form, a parent company would have to perform the works under the agreement in case the subsidiary failed. Therefore, the objections raised by the Petitioner are hyper-technical and have been raised only to stall the project once it was found to be unsuccessful." ·C A B 34. As is noticeable. there is material on record that the respondent No. 2, a Government company. is the owner of the subsidiaries companies and subsidiaries companies have experience. The l '' respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of"Govemment owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the l '' respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1 ''respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court." D E F 30. Be that as it may, it would notwithstanding the above, be indispensable to examine and decipher the import of the relevant clauses pertinent to the question to be addressed. Clause 4.1 of Section 1 of the Instructions to Bidders which defines "eligible bidders" is in following terms: G ## "Eligible Bidders:- 4.1. A Bidder may be a firm that is a single entity or any combination of such entities in the form of a joint venture (JV) under an existing agreement or with the intent to enter into such H 108 [2017] 5 S.C.R. SUPREME COURT REPORTS A an agreement supported by a letter of intent. In the case of a JV: Consortium formation is acceptable. Tender condition Prevails. B - (a) All members shall be jointly and severally liable for the execution of the Contract in accordance with the Contract terms, and C - (b) The JV shall nominate a Representative who shall have the authority to conduct all business for and on behalf of any and all the members of the JV during the bidding process and, in the event the _N_ is awarded the Contract during Contract execution." 31. A relevant extract of Clause 7 .1 of the same Section, which provides for clarification ofbidding documents, site visit pre-bid meeting, is furnished hereinbelow: D "A Bidder requiring any clarification of the Bidding Documents shall contact the Employer is writing at the Employer's address specified in the BDS or raise his enquiries during the pre-bid meeting if provided for in accordance with ITB.7.4." 32. Clauses 2.4.1 and 2.4.2 (a) & (b} of the "Evaluation and E Qualification of Criteria'', Section III are also extracted as hereunder: ## "General Experience (Clause 2.4.1) ## F Experience in the role of prime contractor (single entity or _N_ member), Subcontractor or management contractor for at least last ten (I 0) years starting I" January, 2006. ## Specific Experience Clause 2.4.2(a) ## G A minimum number of two (2) similar contracts that have been satisfactorily and substantially completed as a prime contractor (single entity or JV member) between l '' January, 2006 and the Bid submission deadline. ## Specific Experience (2.4.2(b) Experience under contracts in the role of prime contractor (single entity or _N_ member) for Vehicle Design, Interface (with other designated Contractors such as signaling, Track Traction, etc.), H MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY[AMITAVAROY,J.] 109 Assembly & Supply, Testing and Commissioning of minimum of A total 150 metro (i.e. MRT, LRT, Sub-urban Railways or high speed railways) cars made of either Stainless Steel or Aluminum with similar features including three phase tr~ction propulsion system ATP/ ATO systems, etc. between I" January, 2006 and the Bid submission deadline. B ## AND Out of 150 or more cars supplied and commissioned as above have minimum of total 75 metro (i.e. MRT, LRT, Sub-urban Railways or high speed railways) cars supplied and in satisfactory revenue operation continuously for at least five years: c EITHER in at least 1 (one) country outside the country of origin OR in India." 33. It isamatterofrecord thatbetween 16.03.2016 and 30.04.2016, in course of the pre-bid meetings with the bidders, certain queries were raised by them to which clarifications had been furnished by MEGA. D The following queries and clarifications as available from the records being pre-eminently relevant are quoted hereinbelow: |Queryraised|Clarification issued| |---|---| |Serial<br>No.<br>50:<br>Existing The subsidiar<br>requirement that the consortium comnan<br>members experience shall only the<br>be counted for qualification<br>Kindly<br>allow<br>Parent|Existing The subsidiarycomnany./groun| ||requirement that the consortium comnanymaybid togetherwi.th| ||members experience shall only the<br>narent<br>company<br>l!L.J!<br>JV_I_consortium<br>member,<br>for| ||narents/ groun<br>com12an:i:<br>ex11erienceto be taken in to<br>account.<br>TenderConditionprevails.| |companies/Grou11<br>companies<br>experience to be taken into|| |account<br>for<br>meeting<br>the<br>gualification reguirementasthis<br>will<br>simplify<br>the<br>Contract<br>structure.The same has been<br>allowed in several large tenders<br>in India recently.|| E F G H 110 [2017] _5_ S.C.R. SUPREME COURT REPORTS |Serial No.52: Kindly accept Each member<br>letterofcredit facility issued<br>bythebankinfavorof<br>N/Consortium or companies therefore,<br>belongtosame global group specified<br>ofcompanies<br>rather than<br>individual capincasethe<br>applicantisN/Consortium.|Serial No.52: Kindly accept Each memberofJV/Consortium<br>isa separate entity with a distinct<br>role assignedasperMOUand,<br>N/Consortium or companies therefore,therequirement are<br>same global group specified<br>~~Tender~~Co~~ndition prevails~~.<br>Thesubsidian:com12any/groug| |---|---| |SerialNo.54.For a proper<br>local management,wesuggest<br>youtokindly allow a fully<br>owned Indian subsidiary can<br>use the dateandreferencesof<br>the<br>parent<br>company<br>and<br>participatemtender on/its account.<br>own andorasconsortium meet<br>with<br>parent<br>company<br>borrowingthetechnical&<br>financial credentials orthe<br>parent company|| ||com12any may bidtogether with| ||the<br>12arent<br>comgany<br>as<br>a<br>JV_I_consortium<br>member,<br>for<br>Parents/group<br>company<br>experiencetobetakeninto<br>tender on/its account.<br>Each member must<br>consortium meettherequirement.<br>Thesubsidian:com12any/grou12| |Serial No.56:For a proper<br>local management,wesuggest<br>youtokindly allow a fully<br>owned/Indian subsidiarycan<br>partofconsortiuin/JV with Parents/ group<br>their parents company, even experience<br>100%subsidiary doesn'thave<br>10<br>years<br>experience<br>and<br>doesn't meet other_eligibility<br>conditions<br>mentioned<br>m<br>Clause No.2ofSection-Illof<br>EvaluationandQualification<br>Criteria.|| ||com12any may bidtogether with| ||the<br>12arentcom12any<br>asa<br>JV/conso1tium<br>member,<br>for<br>consortiuin/JV with Parents/ group<br>company<br>their parents company, even experiencetobetakeninto<br>account.<br>of| MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY[AMITAVAROY,J.] 111 .,. 34.' A plain reading of clause 4.1 reveals that a bidder can be a single entity or a combination of such entities in the form ofa J.V. or a Consortium under an existing agreement or with the intent to enter into such an agreement supported by a letter of intent. Thus a single entity has been construed to be a valid bidder for all intents and purposes. A 35. Having regard to the magnitude of the project as well as the experience and expertise essential for the quality execution thereof, there seems to be no justification to infer, at the first place, to exclude a government owned entity with its 100% wholly owned subsidiaries to be ineligible to participate in the process. A single entity, in our comprehension, would assuredly include such a government owned entity along with its 100% wholly owned subsidiaries. This is more so on the touchstone of otherwise imperative facilitation of a broad based participation of entities with competing worth and capabilities, in the overall interest of the timely and quality execution ofa public project. B C > 36. As recorded in _Consortium of Titagarh Firema Adler SPA (supra),_ the appellant-corporation rs a government owned entity with D 100% wholly owned subsidiaries as a composite unit, so much so that > the experience of any one of its constituent 100% wholly owned > subsidiaries would be construable as its experience. It was proclaimed that the petitioner (respondent no.2 therein) was a Government Company > and the owner of its subsidiary companies and that the concept of E "government own entity" could not be given a narrow construction so as to exclude its subsidiaries with their experience and that there was no necessity for the formation of a joint venture and consortium for the > Government own entity to avail the benefit of the experience of its subsidiary companies. That the acceptance of the petitioner (respondent F no.2) therein in the context of the work awarded to it was in accord with public interest, having regard to the overall commercial concept and the demand of expertise, was underlined as well. Noticeably, the process of merger of _Mis._ CNR Corporation and _Mis._ CSR Corporation and the integration thereof along with their subsidiaries to metamorphosise into the appellant-corporation is borne out by the coeval records. D F G 37. In that view of the matter, the status and the entitlements of the appellant-corporation, as already adjudicated in _Consortium of Titagarh Firema Adler SPA (supra),_ as a single entity bidder in the present tender process would also by the yardstick of simple logic and analogy be available to it. Absence of the words "government owned H [2017) 5 S.C.R. 112 SUPREME COURT REPORTS A entity" in clause 4.1, presently under consideration, is of no consequence. The plea of the respondent that the tender conditions involved demand a different perspective in the overall conceptual framework thereof, lacks persuasion. Significantly, in clause 4.1 involved in _Consortium of Titagarh Firema Adler SPA (supra),_ "government owned entity" had been contemplated as one of the bidders in contradistinction to "private B entity" and "any combination of such entities" in the form of a joint venture (J.V) ..... The expression used in the present clause being "single entity'', understandably, it is inclusive ofa private as well as a government owned entity. The unit envisaged as a single entity is thus independent of any combination or formation in the form ofa J.V. or a Consortium c and thus is visualised to be one integral and composite whole. In such a logical premise, a government owned company with its I 00% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of clause 4.1 of the tender conditions and is to be regatded as single, coherent and homogeneous existence and not a disjointed formation. D 38. The queries and the clarifications, relatable to the discord, as presented, also in our discernment, do not substantiate the plea of MEGA in any manner whatsoever. The foundation of rejection of the appellant's bid is the clarification to the query mainly at serial No. 50. It is patent therefrom that it was in response to a query made by a subsidiary company E to allow for its benefit, the experience of the parent company/group companies to meet the qualification requirement with regard thereto. It was in that context that the clarification furnished was that the subsidiary company/group companies may bid together with the parent company as J.V./Consortium member, for parent/group company's experience to F be taken into account. This clarification was extended and applied visa-vis the appellant qua clauses Nos. 2.4. l, 2.4.2(a), 2.4.2(b) and 2.4.2.(c) to disqualify it on the ground that on stand alone basis, it was deficient in the experience prescribed and that it could not have availed of the experience of its subsidiary companies. As rightly contended on behalf of the appellant, we are of the view that this clarification has no G application to its case and, therefore, the decision to disqualify it on this ground is apparently arbitrary, discriminatory, unreasonable, illogical and non-transparent, thus rendering the same irreversibly illegal, unjust and unfair. The improvement endeavoured by the respondent in its reply affidavit is belied by the records and is unacceptable. No other view or E H MIS CRRC CORPORATION v. METRO LINK EXPRESS FOR GANDHINAGAR&AHMEDABADCOMPANY[AMITAVAROY,J.] 113 elucidation of the relevant clauses of the tender conditions is at all possible. The interpretation offered by the respondent and endorsed by the High Court in the contextual framework is thus patently impermissible and absurd. 39. Not only the appellant as the record testifies had offered its responses to the clarifications sought for, its status as a government owned corporation, by no means, has been disputed by MEGA. Further, in the face of its demonstrated structural integrity and functional unity qua its subsidiaries with all consequential legal implications, the apprehension of MEGA that the subsidiary companies of the appeilant, if necessity so arises, would not be available for the execution of the project, not being a party to the contract, to say the least, is speculative, unfounded, farfetched and wanting in reason and rationale. Whether the subsidiary companies of the appellant would be responsible for the execution of the work is evinced by the formational specifics and functional dynamics of the appellant and its wholly owned subsidiary companies, as noticed in _Consortium of Titagarh Firema Adler SPA (supra)_ in the affirmative and does not call for further dilation. In the face of a forensic analysis of the decisions cited at the Bar in the above adjudication, it is inessential as well to retraverse the same. 40. In the wake of the above determination, the impugned disqualification of the appellant on the ground of deficiency, in experience in terms of clause 2.4, is unsustainable in law and on facts being grossly illegal, arbitrary and perverse. As a corollary, the judgment and order of the Higb, Court in challenge is also set-aside. The tender process in view of the above conclusion, would be furthered hereinafter as per the terms and conditions thereof and in accordance with law and taken to its logical end as expeditiously as possible. We make it clear that the present adjudication is confined only to the issue of disqualification of the appellant on the ground of experience on the touchstone of clause 2.4 of the "Eligibility and Qualification Criteria" of"Tender Document" and no other aspect. The appeal is allowed. In the facts and circumstances of the case, there shall be no order as to costs. A B c D E F G Kalpana K. Tripathy Appeal allowed.