ORDER : 1. Heard Mr. Suhail Dutt, learned Senior Counsel, assisted by Mr. Abhijit Singh, Mr. Vikram Rajkhowa, Mr. Kushagra Sah, Mr. N N B Choudhury and Mr. S S Borthakur, learned counsel for the petitioner. Also heard Mr. D Saikia, learned Senior Additional Advocate General, Assam, assisted by Mr. B Gogoi, learned Standing Counsel, Health Department for respondent Nos. 1 and 2; and Mr. M K Choudhury, learned Senior Counsel, assisted by Mr. M Sharma, learned counsel for respondent No. 3. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks the following reliefs:- (i) setting aside and quashing the impugned order dated 14.03.2018, passed by respondent No. 2 whereby the respondent No. 2 declared that petitioner failed to qualify in the Financial Bid evaluation and rejected the Financial Bid of the petitioner; (ii) cancelling the purported rate contract letter dated 30.01.2018 issued by the respondent No. 2, whereby respondent No. 2 has arbitrarily and illegally declared respondent No. 3 as L-1 in respect of the 12 items and thereby awarding the rate contract letter to respondent No. 3; (iii) to direct respondent No. 2 to consider the petitioner as qualified for the Technical Bid and consider the Financial Bid of the petitioner as the petitioner had filed its Technical Bid in terms of the NIT and consequently declared technically responsive vide the minutes of meeting dated 02.01.2018; (iv) show-cause as to why an appropriate writ, order or direction should not be issued so as to give full relief in the matter and/or; (v) call for the records and on perusal thereof and after hearing the parties may be pleased to make the Rule absolute and/or may be pleased to pass such further or other order/orders as may seem fit and proper. 3. Matter relates to award of contract for supply of essential surgicals and sutures pursuant to e-tender dated 08.09.2017, issued by the office of the Mission Director, National Health Mission, Assam. Though as many as 237 items were put to tender, the present lis is confined to 12 items. 4. Though bulky petitions and affidavits have been filed, it is necessary to briefly place the facts in seriatim so as not to lose focus on the core question for consideration. 5. Though as many as 237 items were put to tender, the present lis is confined to 12 items. 4. Though bulky petitions and affidavits have been filed, it is necessary to briefly place the facts in seriatim so as not to lose focus on the core question for consideration. 5. E-tender dated 08.09.2017 was issued by the office of the Mission Director, National Health Mission (NHM), i.e., respondent No. 2 for entering into rate contract for supply of essential surgicals and sutures. As noted above, the tender covered a total of 237 items. Initially, the last date and time for receipt of e-tender was fixed on 07.10.2017 till 02:00 pm. However after several postponements, last date and time for submission of e-tender was fixed on 27.11.2017, till 03:00 pm. 6. As per instructions to bidders, the tender was to be of two-bid system, i.e., techno commercial bid and financial bid or price bid. Clause-3 deals with eligibility criteria. As per Clause-3 (c), a bidder should have at least three years’ market standing, i.e., financial years 2014-15, 2015-16 and 2016-17 as a manufacturer for the items quoted as on the date of bid opening. In case of imported products, the importer should have at least three years’ market standing as above as importer. 7. Clause-3 (d) contains the explanatory note. It says that merger/amalgamation/transfer of business/transfer of assets etc. of a firm affects the bid conditions relating to past performance/market standing in preceding years. Eligibility of a bidder in this regard shall be ascertained by the tender committee on the basis of the stated agreement/resolution of the Board of Directors/certificate of the Chartered Accountant or any other document or certificate annexed with the tender. 8. Likewise, as per Clause-3 (j), details of supplies (quoted items) made during the last three financial years, i.e., 2014-15, 2015-16 and 2016-17, supported by purchase orders for each quoted items must be submitted in addition to enclosing copies of supply orders executed for Government organizations during the aforesaid last three financial years. 9. Clause-4 deals with techno-commercial bid. As per Clause-4 (D), attested photocopy of imported licence as per relevant provisions of the Drugs and Cosmetics Act, 1940 should be furnished; if the product is imported it must be renewed upto date. 10. 9. Clause-4 deals with techno-commercial bid. As per Clause-4 (D), attested photocopy of imported licence as per relevant provisions of the Drugs and Cosmetics Act, 1940 should be furnished; if the product is imported it must be renewed upto date. 10. Clause-4 (1) requires that bidder should have at least three years’ market standing, i.e., 2014-15, 2015-16 and 2016-17 as a manufacturer for the items quoted in the bid. In case of imported items, the bidder should have three years’ market standing for the aforesaid three years supported by relevant bills of entry, sale invoices etc. Importing firm should have at least three years’ market standing as an importer with valid import licence. 11. As per Clause-6 (B), after opening of technical bids, price bids of only those bidders, whose technical bids are found to be acceptable after technical and commercial evaluation will be opened online. Price bids of tenderers not found technically qualified shall not be opened. 12. Clause-11 deals with acceptance of tender. As per Clause-11 (A), tenders will be evaluated with reference to technical and commercial parameters to determine the technically qualified bidders for all items. Price bids of technically qualified bidders will be evaluated with reference to the quoted price for each item to determine L-1 price. 13. According to the petitioner, it being a direct importer having valid import licence satisfied the eligibility criteria and, therefore, submitted its bid for 67 items including the items at Serial Nos. 205, 217, 218, 220, 221, 222, 223, 224, 225, 226, 229 and 236 (which have been referred to as the 12 items in question) 14. On 27.11.2017, technical bids of all the bidders were opened. It was found that altogether 51 bidders had submitted tender including the petitioner and respondent No. 3 for various items. 15. Tender committee evaluated the technical bids on 02.01.2018. As per minutes of the meeting of the tender committee dated 02.01.2018, out of the total 51 bidders, bids of 36 were found technically responsive, which included the petitioner at Serial No. 13 and respondent No. 3 at Serial No. 2. Remaining 15 bidders were found to be technically deficient and accordingly, their bids were rejected. As per minutes of the meeting of the tender committee dated 02.01.2018, out of the total 51 bidders, bids of 36 were found technically responsive, which included the petitioner at Serial No. 13 and respondent No. 3 at Serial No. 2. Remaining 15 bidders were found to be technically deficient and accordingly, their bids were rejected. In so far the 36 bidders whose tenders were found to be technically responsive, it was mentioned that all the items quoted by those bidders were not technically acceptable due to absence of three years’ market standing certificate as well as non-availability of execution of similar contract. Therefore, the tender committee recommended opening of financial bids of 36 numbers of technically accepted bidders. Be it stated that the tender committee comprised of the following officials:- “1. Executive Director, NHM, Assam. 2. Director of Finance and Accounts, NHM, Assam. 3. Consultant, Maternal Health, NHM, Assam. 4. Procurement Expert, NHM, Assam. 5. Financial Advisor, NHM, Assam. 6. DSM, SHQ, NHM, Assam. 7. DSM, SHQ, NHM, Assam” 16. According to the petitioner, financial bids of the 36 technically responsive bidders were made public on 04.01.2018. It is stated that on a comparison of the financial bids of the said 36 bidders, price offered by the petitioner for the 12 items in question were the lowest. In this connection, petitioner has made a statement in paragraph-10 of the writ petition. However, petitioner complained that the result of evaluation of financial bids was not disclosed. No announcement was made by respondent No. 2 as to what decision was taken after opening of financial bids. This led the petitioner to submit several representations before respondent No. 2. 17. Though not stated or annexed to the writ petition, minutes of the meeting of the tender committee held on 04.01.2018 for evaluation of financial bids has been brought on record by respondent No. 2 in his affidavit filed on 28.05.2018 as Annexure-C. After considering the minutes of the tender committee meeting held on 02.01.2018, it was decided that some of the items quoted by the 36 acceptable bidders did not have three years’ market standing certificate, i.e., execution of similar contract. Regarding respondent No. 3, it was mentioned that it did not have three years’ market standing for item Nos. Regarding respondent No. 3, it was mentioned that it did not have three years’ market standing for item Nos. 233, 234 and 235 and also did not have performance certificate for those items, but it was eligible for rest of the items quoted. Regarding the petitioner, tender committee held that it did not have market standing for the items quoted by it for the financial year 2014-15 and, therefore, did not have the three years’ market standing. First date of product permission was from June 2015. It was also stated that petitioner did not submit ISO13485:2012 certification for the items quoted. 18. In the additional affidavit filed by the petitioner on 21.03.2018, a letter dated 30.01.2018 issued by respondent No. 2 regarding entering into rate contract-cum-supply of essential surgical items and sutures has been placed on record. This letter was addressed amongst others to respondent No. 3. Therefrom, it was found that for the 12 items in question, respondent No. 3 was selected as the L-1 bidder. 19. In Interlocutory Application (C) No. 2070 of 2018, filed by respondent No. 3 (applicant) for vacation of interim order, an additional affidavit has been filed which has brought on record supply order dated 16.03.2018, issued by respondent No. 2, placing before respondent No. 3, order for supply of essential surgical and sutures as mentioned therein. 20. Petitioner was informed by office of respondent No. 2 vide letter dated 16.03.2018 that its representations were considered. It was stated that though initially petitioner was declared qualified in the technical bid, subsequently it was found that petitioner did not fulfill the required conditions during evaluation of the financial bids. Therefore, respondent No. 2 decided that petitioner had failed to qualify and accordingly, its bids were not considered eligible for financial evaluation and acceptance by the authority. Speaking order dated 14.03.2018 passed in this regard was forwarded to the petitioner vide the aforesaid forwarding letter dated 16.03.2018, rejecting the bids submitted by the petitioner for the twelve items. 21. Petitioner has contended that it had submitted market standing certificate of three years. It had fulfilled the eligibility criteria for the tender. Petitioner was already declared as technically responsive by the tender committee on 02.01.2018. Therefore, contrary view could not have been taken at a later stage, while considering the price bids. 21. Petitioner has contended that it had submitted market standing certificate of three years. It had fulfilled the eligibility criteria for the tender. Petitioner was already declared as technically responsive by the tender committee on 02.01.2018. Therefore, contrary view could not have been taken at a later stage, while considering the price bids. In so far the 12 items are concerned, rates offered by the petitioner were the lowest. Impugned decision of respondent No. 2 favouring respondent No. 3 over the petitioner would result in loss of public exchequer by Rs. 130 crores. In such circumstances, rejection of the bid of the petitioner is arbitrary and unreasonable, thus illegal. 22. This Court by order dated 22.03.2018 had issued notice and passed an interim order to the effect that the State Government would not accept the 12 items, in which the petitioner had emerged as the lowest tenderer beyond 10% of their total requirements. 23. Respondent No. 2 in his counter affidavit filed on 28.05.2018 has stated that during financial bid evaluation of the 36 qualified bidders, tender committee found that 16 bidders did not have the three years’ market standing certificate or performance, i.e., execution of similar contract for the items for which bids were notified and submitted. Accordingly, it was decided by the tender committee to consider the financial bids of only those bidders, who fulfilled the criteria of three years’ market standing. Therefore, tender committee in its meeting held on 04.01.2018, considered the rates given by all the technically qualified bidders, whereafter marking the lowest rates and bidders as L-1 rates and L-1 bidders. In so far the petitioner is concerned, it was found that the first date of product permission were 29.06.2015, 15.07.2015 and 24.06.2016 respectively. Thus, petitioner did not fulfill the required condition of three financial years’ market standing as on the date of submission of tender. Referring to the market standing certificate dated 18.07.2017, furnished by the petitioner, it is stated that it was issued by the Central Drugs Standard Control Organization (CDSCO), which was in favour of M/S Covidien Health Care India Private Limited and did not specify whether the three years’ period was relatable to calendar years or financial years. Referring to the market standing certificate dated 18.07.2017, furnished by the petitioner, it is stated that it was issued by the Central Drugs Standard Control Organization (CDSCO), which was in favour of M/S Covidien Health Care India Private Limited and did not specify whether the three years’ period was relatable to calendar years or financial years. It is further stated that petitioner had submitted certain other documents like old product permission and old import permission for the 12 items along with its petition dated 06.02.2018, but the tender committee did not consider these documents as those were not submitted along with the bid of the petitioner. As such, it is contended that respondent No. 2 had rightly rejected the tender of the petitioner under Clause-11. It is further contended that the total budget for procuring of the Government notified drugs/surgicals/sutures/ samples etc. of the State Government is Rs. 100 crores. Finally, it is stated that the rate contract has already been issued to the L-1 bidder, i.e., respondent no. 3, whereafter speaking order dated 14.03.2018 was forwarded to the petitioner vide the aforesaid forwarding letter dated 16.03.2018, rejecting the bids submitted by the petitioner for the twelve items. 24. Respondent No. 3 in its affidavit filed on 14.05.2018 has questioned the maintainability of the writ petition by contending that there is a provision for arbitration. It has justified rejection of the technical bid of the petitioner by contending that technical bid of the petitioner did not fulfill the required conditions. It has given in the form of a statement, what according to it are the deviations of the petitioner in so far the 12 items are concerned. Further contention of respondent No. 3 is that licences submitted by the petitioner in the instant tender are in the name of M/s Covidien Healthcare India Private Limited. Regarding the market standing certificate dated 18.07.2017 submitted by the petitioner, it is stated that it was issued to M/s Covidien Healthcare India Private Limited and no document was submitted by the petitioner to show that the said certificate was allowed to be used by the petitioner by any authority. While asserting that respondent No.3 fulfilled the required norms, it is stated that all the requisite documents in physical form were submitted by it to the respondent authorities within the stipulated time. While asserting that respondent No.3 fulfilled the required norms, it is stated that all the requisite documents in physical form were submitted by it to the respondent authorities within the stipulated time. Petitioner’s contention that award of contract to respondent No. 3 at the cost of petitioner would result in loss of Rs. 130 crores to the public exchequer has been denied and disputed by respondent No. 3. 25. Respondent No. 3 has filed an application for vacating the interim order passed by this Court on 22.03.2018, which has been registered as Interlocutory Application (Civil) No. 2070 of 2018. Against this interlocutory application, petitioner has filed its objection. Petitioner has also filed reply affidavits to the counter affidavits filed by respondent No. 3 as above. 26. In the course of hearing, this Court passed the order dated 28.08.2018, directing Mr Gogoi, learned counsel for respondent Nos. 1 and 2 to produce the record pertaining to bid documents of petitioner and respondent No. 3 and also gave liberty to the parties to peruse the record. 27. Thereafter, petitioner has filed 2 (two) affidavits, one dated 13.09.2018 and the other dated 24.09.2018. In the affidavit filed on 13.09.2018, petitioner has highlighted discrepancies in the tender of respondent No. 3, whereas, in the affidavit dated 24.09.2018, petitioner has highlighted discrepancies in the tender of M/s Becton Dickinson, another successful tenderer though M/s Becton Dickinson is not a party to the present proceeding. 28. In the subsequent hearing, Mr. Choudhury, learned counsel for respondent No. 3 raised objection to the aforesaid affidavits filed by the petitioner, which was opposed by learned counsel for the petitioner by contending that the affidavits have only brought out what is already there in the record and relied upon two decisions to justify filing of the affidavits after scrutiny of record. 29. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record produced by Mr. Gogoi. 30. Before proceeding further, it would be appropriate to advert to the eligibility criteria as per the e-tender. Clauses-3 (c), 3 (j) and 4 (1) thereof provide for furnishing of market standing certificate of three years, i.e., 2014-15, 2015-16 and 2016-17, either as manufacturer or as importer. In the meeting of the tender committee held on 02.01.2018, 15 of the bidders out of 51, who had submitted bids were rejected as being technically non-compliant. Clauses-3 (c), 3 (j) and 4 (1) thereof provide for furnishing of market standing certificate of three years, i.e., 2014-15, 2015-16 and 2016-17, either as manufacturer or as importer. In the meeting of the tender committee held on 02.01.2018, 15 of the bidders out of 51, who had submitted bids were rejected as being technically non-compliant. Out of the 36 short-listed bidders, petitioner was shortlisted at Serial No. 13. However, it was mentioned in the minutes that all the items quoted by the 36 bidders were not technically acceptable due to absence of three years’ market standing certificate as well as non-availability of execution of similar contract. Thereafter, tender committee recommended opening of technical bids of the 36 bidders. 31. In the tender committee meeting held on 04.01.2018, after evaluation of financial bids, the tender committee rejected the bid of the petitioner on two grounds. Firstly, petitioner did not have three years’ market standing for the quoted items as market standing was not available for the financial year 2014-15. Second ground given was that petitioner did not submit ISO certificate for the quoted items. 32. Two questions arise for consideration:-Firstly, whether the tender committee was justified in rejecting the technical bid of the petitioner on the ground that it did not have market standing certificate for three years, i.e., for the financial year 2014-15 and that it did not submit ISO certificate? Secondly, whether the tender committee was justified in rejecting the technical bid of the petitioner at the stage of price evaluation, having found the petitioner to be technically responsive at the time of technical evaluation. 33. Coming to the first issue, the eligibility requirement has already been noted above. The specific requirement is that the tenderer or bidder must have market standing certificate for three years, i.e., financial years, 2014-15, 2015-16 and 2016-17. By the speaking order dated 14.03.2018, respondent No 2 held that petitioner did not meet the eligibility requirements of having market standing for three financial years as per the e-tender. Relevant portion of the order dated 14.03.2018 is extracted hereunder:- “Whereas, e-Tender notice for entering into rate contract for supply of essential surgical/suture items had been issued by the authority of NHM, Assam vide No. NHM/PROC/ RC-DRUG/ESL-NEW/3380/2017-18/15623, DATE: 8/9/17 with subsequent CORRIGENDUM No-1: NHM/PROC/ RC-DRUG/ESL-NEW/3380/2017-18/17004, DATE:-15/09/17 & CORRIGENDUM No.-2:NHM/PROC/RC-DRUG/ESL-NEW/3380/2017-18/23122, DATE:-16/11/17 2. Relevant portion of the order dated 14.03.2018 is extracted hereunder:- “Whereas, e-Tender notice for entering into rate contract for supply of essential surgical/suture items had been issued by the authority of NHM, Assam vide No. NHM/PROC/ RC-DRUG/ESL-NEW/3380/2017-18/15623, DATE: 8/9/17 with subsequent CORRIGENDUM No-1: NHM/PROC/ RC-DRUG/ESL-NEW/3380/2017-18/17004, DATE:-15/09/17 & CORRIGENDUM No.-2:NHM/PROC/RC-DRUG/ESL-NEW/3380/2017-18/23122, DATE:-16/11/17 2. Whereas, in response to the above 51 bidders submitted their bids online both technical and financial with technical bid offline also as required within the last date fixed for submission. On evaluation of the technical bid 36 nos. of bidders were found to be responsive and qualified in the Technical Bid which included M/s India Medtronic Pvt. Ltd., 4th floor SAS Tower, Medanta Medicity Complex, Gurgaon, Haryana-122001 also. 3. Whereas, financial bid evaluation of the bidders who qualified in the technical bid was made on 04.01.2018 by the Bid Evaluation Committee constituted for the purpose. 4. Whereas, the Committee during Financial Bid evaluation of the 36 technically qualified bidders found that 16 bidders did not have 3 FY years market standing certificate or performance, i.e., execution of similar contract for some of the items for which bids were invited. 5. Whereas, the Bid Evaluation Committee accordingly, found these bidders/firms not eligible for those specific items which did not qualify the market standings and hence did not consider their financial bid for those items. 6. It decided to consider the financial bids of only those bidders for all items or only for such items where 3 years market standing was fulfilled. The Bid Evaluation Committee in its minutes dated 04/01/2018 has declared the same. 7. Whereas, on financial evaluation of the bid accordingly, the Bid Evaluation Committee found the item wise L-1 rates and the L-1 bidders for the items tendered. The rates given by all technically qualified bidders for all items quoted would be revealed on e-tender portal. 8. Whereas, India Medtronic Pvt. Ltd., one of the 36 bidders qualifying in the technical bid, had quoted rates for 68 nos. of items out of total 237 nos. of items tendered. 9. The rates given by all technically qualified bidders for all items quoted would be revealed on e-tender portal. 8. Whereas, India Medtronic Pvt. Ltd., one of the 36 bidders qualifying in the technical bid, had quoted rates for 68 nos. of items out of total 237 nos. of items tendered. 9. Whereas, on the perusal of the market standing condition made by the Bid Evaluation Committee it is found that as per declaration submitted by M/s India Medtronic Pvt. Ltd. in Annex-A of the Bid document, the 1st date of product permission has been shown as 29/6/2015, 15/07/2015 and 24/6/2016 thereby confirming the party not fulfilling the required condition of 3 FY market standing on the date of tender from the date of product permission. 10. Whereas, the Market Standing Certificate furnished by M/s India Medtronic Pvt. Ltd. with its tender issued by CDSCO vide No. F No: MD/NC/2017-DC (12), Dated. 18/07/2017 was issued in favour of M/s Covidien Healthcare India Pvt. Ltd. did not clearly specify the years as to whether the same was calendar year or financial year. 11. Whereas, it was also found on detailed scrutiny that the specifications as quoted in respect of 19 items out of the 68 items for which rates have been quoted by M/s India Medtronic Pvt. Ltd., i.e. for item no. 198, 199, 200, 201, 205, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227 , 228, 229 and 236 are also not as per required specification in the tender and deviated from the given specification which was ascertained after verification of the documents related to import license and product permission issued by the Competent Authority and furnished by the Complainant. 12. Whereas, the aggrieved complainant had furnished certain other documents like old product permission and old import export permissions in support of his claim to be considered as L-1 bidder for 12 products along with his petition dated 6/2/2018, the Authority could not consider these as these were not submitted earlier along with the bid and did not form a part of the bid document submitted by the party. 13. Whereas, the rate contract issued on 30/01/2018 was only issued to eligible L-1 bidders who have the required market standing. Since the complainant was not an eligible L-1 bidder due to aforesaid reasons, the question of informing the party does not arise. 14. 13. Whereas, the rate contract issued on 30/01/2018 was only issued to eligible L-1 bidders who have the required market standing. Since the complainant was not an eligible L-1 bidder due to aforesaid reasons, the question of informing the party does not arise. 14. Therefore, having considered all the facts and circumstances as stated above I am of the considered opinion that M/s India Medtronic Pvt. Ltd in respect of the above tender though initially qualified in the technical bid was subsequently found not to fulfill the required conditions during evaluation of the financial bids and, A. Hence, it has been decided that M/s India Medtronic Pvt. Ltd. failed to qualify in the financial bid (sic) evaluation and, therefore, the bids/rates quoted by the party against the items were not considered eligible for financial evaluation and acceptance by the authority. B. Accordingly, the bids quoted by M/s India Medtronic Pvt. Ltd. for the 12 items contended by the complainant are rejected by the Authority as per Clause No. 11-“ACCEPTANCE OF TENDER” – Pt. No. B “Right to reject Tender” of the tender document.” 34. From a careful analysis of the aforesaid order dated 14.03.2018, it is seen that according to respondent No. 2, the certificate and other documents submitted by the petitioner to support its eligibility were in the name of M/s Covidean Health Care India Private Limited; as per the documents, the first date of product permission was 29.06.2015, 15.07.2015 and 24.06.2016 respectively; thus, indicating that petitioner did not fulfill the required condition of having three years’ market standing. It was also stated that documents submitted by the petitioner subsequently on 06.02.2018 were not taken into consideration as those were not part of the bid documents. Having noticed and discussed the above, the market standing certificate dated 18.07.2017, issued by the CDSCO, which is the sheet anchor of the petitioner, may be examined. The certificate dated 18.07.2017, reads as under:- “F. No.: MD/NC/2017-DC(12) Date: 18th July, 2017 MARKET STANDING CERTIFICATE This is to certify that M/s Covidien Healthcare India Pvt. Ltd., situated at Doshi Towers, 6th Floor, #156 Poonamallee High Road, Kilpauk, Chennai-600010 is holding Import License (s) No. MD-796-1333 valid upto 30.06.2018; MD-933-1299 valid upto 31.05.2018; MD-948-1342 valid upto 31.05.2018; MD-949-1344 valid upto 30.06.2018 and MD-1201-1852 valid upto 31.05.2018, for import of Medical Devices as stated in Import License. It is further certified that the firm is importing Medical Devices (List enclosed) for the last three years. The certificate is valid for One Year Only. (Dr S Eswara Reddy) Joint Drugs Controller (1)” 34.1 As per this certificate, M/s Covidien Healthcare India Private Limited had valid import licenses upto 30.06.2018, 31.05.2018, 30.06.2018 and 31.05.2018 for import of medical devices as stated in the import licences. It was also certified that the firm was importing medical devices for the last three years. According to learned Senior Counsel for the petitioner, this certificate issued on 18.07.2017 clearly shows that M/s Covidien Healthcare India Private Limited had the experience for the last three years which would mean from the year 2014. At this stage, it may be mentioned that M/s Covidien Healthcare India Private Limited had merged with the petitioner following judgment and order dated 10.08.2017, passed by the National Company Law Tribunal, Chandigarh Bench, Chandigarh. All the four licences referred to in the certificate dated 18.07.2017 have also been annexed to the writ petition. These are licences issued by the CDSCO to M/s Covidien Healthcare India Private Limited. The four licences as noticed above are dated 15.07.2015, 29.06.2015, 29.06.2015 and 03.07.2015. It goes without saying that only from the date of the licence, M/s Covidien Healthcare India Private Limited could have imported the licensed items. If the above dates are taken into consideration, financial year 2014-2015, i.e., from 01.04.2014 to 31.03.2015 would stand excluded. Therefore, it is not understood as to how in the certificate dated 18.07.2017, CDSCO could have certified that M/s Covidien Healthcare India Private Limited was importing medical devices for the last three years. In so far ISO certificates are concerned, those are in the name of Covidien i/c, i.e., the parent company of M/s Covidien Healthcare India Private Limited, having its registered office at USA. Though both in the impugned order dated 14.03.2018 as well as in the counter affidavit, respondent No. 2 has stated that the past service and documents were in the name of M/s Covidien Healthcare India Private Limited he stopped short of saying that it was the experience of M/s Covidien Healthcare India Private Limited sought to be appropriated by the petitioner to project itself as having the requisite eligibility. However, even if it is assumed that the experience gathered by M/s Covidien Healthcare India Private limited can be taken as the experience of the petitioner, still it fails to fulfill the market standing eligibility for not having market standing for the financial year 2014-2015 and on this ground itself, its challenge can be negated. Nevertheless, since the question as to whether the experience gathered/past experience of M/s Covidien Healthcare India Private Limited can be claimed to be the experience of the petitioner post-amalgamation is intimately related to Issue No. 1 as formulated above, a brief dilation on this aspect has also become necessary. 35. In the writ petition, petitioner has described itself as a company incorporated under the Companies Act, 1956 and that it had acquired the company by the name of M/s Covidien Healthcare India Private Limited. M/s Covidien Healthcare India Private Limited and petitioner had submitted a scheme for amalgamation before the Punjab and Haryana High Court, which was thereafter submitted before the National Company Law Tribunal, Chandigarh Bench, Chandigarh (Tribunal). In the scheme, M/s Covidean Healthcare India Private Limited was described as the transferor company and petitioner as the transferee company and it was a scheme of amalgamation between the two companies. The scheme provided that all the permissions, approvals, licences and registrations etc. relating to the transferor company shall stand transferred to and vested in the transferee company. It was sanctioned by the Tribunal vide the order dated 10.08.2017. As discussed above, the licences and the consequential experience was that of the transferor company. Question is whether on amalgamation the licences in the name of the transferor company and the resultant experience would automatically become the licences and experience of the transferee company? Section 394 of the Companies Act, 1956, is silent in this regard, so also Section 232 of the Companies Act, 2013. The Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 is also silent. 36. In New Horizons Limited-Vs-Union of India; (1995) 1 SCC 478 , Supreme Court was considering the experience of a constituent of a joint venture as the experience of the whole joint venture. After explaining the concept of joint venture, Supreme Court held that in respect of a joint venture company, the experience of the constituents of the joint venture can only mean the experience of the joint venture. 37. In Consortium of Titagarh Firema Adler S.P.A.-Titagarh Wagons Limited –Vs. After explaining the concept of joint venture, Supreme Court held that in respect of a joint venture company, the experience of the constituents of the joint venture can only mean the experience of the joint venture. 37. In Consortium of Titagarh Firema Adler S.P.A.-Titagarh Wagons Limited –Vs. Nagpur Metro Rail Corporation Limited; (2017) 7 SCC 486 , Supreme Court considered as to whether experience of a subsidiary company could be considered as the experience of the parent company. Supreme Court in the facts and circumstances of that case held that respondent No. 2 was a government company and was owner of the subsidiary company. Though the Government company did not have the requisite experience as per the tender requirements, subsidiary company had. Taking the view that concept of government-owned entity cannot be conferred a narrow construction, Supreme Court held that it would include its subsidiaries subject to the satisfaction of the owner. This position was reiterated in the case of CRRC Corporation Limited –Vs-Metro Link Express for Gandhinagar and Ahmedabad (Mega) Company Limited; (2017) 8 SCC 282 , wherein it has been held that a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity and is to be regarded as a single, coherent and homogenous existence and not as a disjointed formation. 38. Having noted the above, can it be said that post-amalgamation the two companies became a joint venture? Can it also be said that M/s Covidean Healthcare India Private Limited was a subsidiary of the petitioner prior to amalgamation? It is certainly not. Prior to amalgamation, M/s Covidean Healthcare India Private Limited was not a subsidiary of the petitioner and post amalgamation, the two companies did not form or constitute a joint venture maintaining their separate existence apart from the joint venture. As a matter of fact, from the documents placed on record, what is discernible is that both the transferor company and the transferee company are subsidiaries of their parent companies registered in the USA. The transferor company had an independent existence prior to amalgamation w.e.f. 10.08.2017. Post-10.08.2017, it had ceased its existence altogether having merged with the transferee company. In such a scenario, it would be too far-fetched to say that experience of the transferor company acquired prior to amalgamation would become the experience of the transferee company post-amalgamation. The transferor company had an independent existence prior to amalgamation w.e.f. 10.08.2017. Post-10.08.2017, it had ceased its existence altogether having merged with the transferee company. In such a scenario, it would be too far-fetched to say that experience of the transferor company acquired prior to amalgamation would become the experience of the transferee company post-amalgamation. That apart, as noticed above, the import licences were in the name of the transferor company. These licences were issued under the Drugs and Cosmetics Act, 1940 and the Rules framed therein. There is nothing on record to show that post-amalgamation these licences have since been revalidated in the name of the petitioner. 39. In this connection, a judgment of the Delhi High Court in WP(C) No. 6547 of 2013, Rohde and Schwarz Gmbh & Co. -Vs- Airport Authority of India, decided on 01.11.2013 may be usefully referred to. In that case also, the bidder was required to have the requisite past experience. It was noted that the subsidiary company of the bidder Rohde and Schwarz Topex had the requisite experience and, therefore, the experience of the subsidiary company was sought to be projected as the experience of the bidder. It was found that petitioner was holding 25% of the share in the subsidiary company. Reliance was placed on New Horizons Limited (supra) as well as State of UP –Vs-Renusagar Power Co.; (1988) 4 SCC 59 , contending that it was obligatory for the authority to lift the corporate veil while considering past experience. The question that was considered by the Delhi High Court was as to whether the experience of the subsidiary company in the year 2008 could be treated as the experience of the bidder as per the NIT. Referring to New Horizons Limited (supra), Delhi High Court observed that Supreme Court was considering a case where past experience was not considered as a condition of eligibility for consideration of the tender but was to be examined at a subsequent stage of tender evaluation. In that case, tenders by joint venture were permissible and in that context, question arose whether experience of the constituent joint venture partner of a joint venture company should be taken into account as the experience of the joint venture. Supreme Court held that it was not necessary that the experience should be in the name of the tenderer only, but experience of a constituent would suffice. Supreme Court held that it was not necessary that the experience should be in the name of the tenderer only, but experience of a constituent would suffice. Therefore, Delhi High Court held that law laid down in New Horizons Limited (supra) was not applicable to the case before it, wherein it was also found as a fact that Rohde and Schwarz Topex was not a subsidiary of the petitioner at the time of amalgamation, besides holding that it is not open for a bidder to claim experience of another entity as its own experience. 40. In so far Renusagar Power Co. (supra) is concerned, one of the questions which fell for consideration was whether generation of electricity by Renusagar Power Co. could be treated as the own source of generation of electricity of Hindalco. It was found that Renusagar Power Co. was a 100 percent subsidiary of Hindalco and was fully controlled by Hindalco in all respects to supply power to Hindalco only. Lifting the corporate veil, Supreme Court found that Renusagar was a power plant owned by Hindalco; thus, Hindalco and Renusagar were treated as one concern and, consequently, Renusagar’s power plant was treated as the own source of generation of power by Hindalco. Therefore, it is quite evident that facts of the present case are clearly distinguishable from the facts of Renusagar Power Co. (supra). 41. Therefore, on a cumulative analysis of the deliberations as above, it cannot be said that decision of respondent No. 2 to declare petitioner as technically deficient is arbitrary or unreasonable. Even in Clause-3 (d) of the tender, it is clearly mentioned that amalgamation etc. of a firm affects the bid condition relating to past performance/market standing in preceding years; the eligibility of a bidder in this regard shall be ascertained by the tender committee on the basis of the stated agreement/resolution of the Board of Directors/certificate of the Chartered Accountant or any other document/certificate annexed with the tender. Therefore, in the light of the tender condition as above, view taken by respondent No. 2 cannot be faulted. 42. Therefore, in the light of the tender condition as above, view taken by respondent No. 2 cannot be faulted. 42. Coming to the second issue, i.e., whether the tender committee could have rejected the technical bid of the petitioner at the stage of evaluation of price bid, it would be relevant to refer to Clause-6 (B) of the tender conditions which clearly mentions that price bids of only those bidders whose technical bids are found to be acceptable (after technical and commercial evaluation) will be opened online. As per Clause-11 (A) tenders will be evaluated with reference to technical and commercial parameters to determine the technically qualified bidders for all items. A conjoint reading of the aforesaid two tender conditions indicates that a bid will be finally accepted after technical and commercial evaluation with reference to technical and commercial parameters; only thereafter it will be finally decided as to whether a bid is technically responsive or not. Therefore, shortlisting of bidders at the first stage of technical evaluation is tentative. 43. Keeping these conditions in mind, it is seen that in the tender committee meeting held on 02.01.2018, though 36 bidders were shortlisted including the petitioner, it was mentioned that all the items quoted by the said bidders were not technically eligible due to absence of three years’ market standing certificate as well as non-availability of execution of similar contract. Therefore, it was a kind of conditional shortlisting of the 36 bidders including the petitioner. When the bids of these 36 bidders were again evaluated by the tender committee on 04.01.2018, all the bids of the petitioner were found technically deficient for the two reasons mentioned. In such a scenario, it cannot be said that petitioner having been shortlisted on 02.01.2018, could not have been technically disqualified on 04.01.2018. This is permitted by the tender itself, which clearly provides that L-1 bids of the qualified tenderers would be declared only after technical and commercial evaluation. That apart, the tender committee which evaluated the technical bids as well as made the financial evaluation of the bidders comprised of the same set of officials as noted above and both the evaluations were done within a short span of time, i.e., on 02.01.2018 and on 04.01.2018. That apart, the tender committee which evaluated the technical bids as well as made the financial evaluation of the bidders comprised of the same set of officials as noted above and both the evaluations were done within a short span of time, i.e., on 02.01.2018 and on 04.01.2018. Therefore, it would not be correct to say that the tender committee was incompetent to declare the tender of the petitioner as technically non-responsive at the stage of evaluation of financial bids, because, as discussed above, the bid of the petitioner was, in fact, technically deficient. 44. For all the aforesaid reasons, Court is of the view that challenge made by the petitioner cannot be legally sustained and is accordingly rejected. 45. Consequently, writ petition is dismissed. Interim order passed earlier stands vacated. 46. Record produced by Mr. Gogoi is returned back.