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TMI Blog2008 (12) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... the commercial bid will be opened subsequently only for those tenderers who have been found successful in the technical bid as per clause 4.0. As per Clause 4.1.1 of the tender document the tenderer must be ISO 9001 certified, RDSO approved, for 1 in 12 curved switch manufacturers on the date of opening of tender. The Executive Director Track (P) Railway Board, Delhi, vide his letter dated 14.11.2007 sought for various clarifications and document from the appellants. The reply to aforesaid letter was given by the appellant along with relevant documents on 22.11.2007. The appellant pursuant to telephonic conversation on 21.1.2008 submitted a copy of inspection certificate of RDSO and also certified about its composition i..e. joint venture (in short `JV') partners. Another representation was made on 31.1.2008. The appellant received a letter dated 7.2.2008 intimating that in terms of para 2.8 the appellant's commercial bid will be opened on 22.2.2008. The respondents vide its letter dated 13.2.08 informed the three of the other bidders whose technical bids were dis-approved and they were requested to collect their unopened commercial bids and bid guarantee bonds amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered item which is a modern technology item. The appellant's manufacturing facility and prototype sample of the thick web switches have been approved by RDSO as intimated by the RDSO vide their letter dated 23.10.2007. The said letter was annexed with tender offer and was also subsequently supplied again. It is a practice that the firm can proceed for bulk production only after prototype samples are approved. In the instant case subsequently RDSO, Lucknow has carried out the inspection of more than 350 sets of thick web switches. Moreover, as per clause 1.5 of the tender document, those successful bidders who will install CNC machine and will produce at least 75 Thick Web Switches will qualify to be in the approved list of vendors for future tenders. Therefore, it clearly implies that the appellant is RDSO approved manufacturer on two fronts i.e. for Conventional curved switches in the name of the JV partner and for the Thick Web Switches (new technology) in the tendered item. It is not out of place to mention that material produced for RVNI, as per their specification was exactly the same as instant tender specification. The appellant has a CNC Plano-milling machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the experience in compiling, printing and supply of telephone directories to the large telephone 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. The requirement of experience was, however, differently worded in the notice for inviting sealed tenders dated 26-4- 1993 which was attached to the tender documents which prescribes the conditions to be fulfilled for submission of tenders and wherein it was stated as under : The successful tenderer will also submit copies of telephone directories printed and supplied by them to the telephone systems of capacity more than 50,000 lines as credentials of his past experience. 22. In the said notice the expressions `tenderer' and successful tenderer have been used. While the expression `tenderer' has been used in paragraphs 5, 7, 11 and 14, the expression successful tenderer is used in paragraphs 7, 9(a), 10 and 12. Since paragraph 10 provides for execution of the agreement by the successful tenderer, the said expression is intended to mean the tenderer whose tender has been found suitable for acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reorganisation 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 reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised 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 reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies namely, TPI, LMI, WML, etc. and Mr Aroon Purie and 40% of the share capital is owned by IIPL a wholly-owned subsidiary of Singapore Telecom which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories. Moreover in the tender it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India. 24. The expression joint venture is more frequently used in the United States. It connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atabase management, sales and publishing of its parent group companies. It would thus appear that the Indian group of companies (TPI, LMI and WML) and the Singapore-based company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and organisation at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of companies jointly undertaking a commercial enterprise wherein they will all contribute assets and will share risks and have a community of interest. We are, therefore, of the view that NHL has been constituted as a joint venture by the group of Indian companies and IIPL, the Singapore-based company and it would not be correct to say that IIPL which has a substantial stake in the success of the venture, having 40% of shareholding, is a mere shareholder in NHL. 26. We have been informed that while the matter was pending in the High Court and in this Court the telephone directory for the year 1993 has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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