M/S Offshore Infrastructures Limited vs State Of Chhattisgarh on 4 August, 2026

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    Chattisgarh High Court

    M/S Offshore Infrastructures Limited vs State Of Chhattisgarh on 4 August, 2026

    Author: Ramesh Sinha

    Bench: Ramesh Sinha

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                          CGHC010297982026                                2026:CGHC:33741-DB
             Digitally
             signed by
             ANURADHA
    ANURADHA TIWARI
                                                                                        AFR
    TIWARI   Date:
             2026.08.04
             17:30:52
    
                                    HIGH COURT OF CHHATTISGARH AT BILASPUR
             +0530
    
    
    
    
                                                   WPC No. 4026 of 2026
    
                          M/s Offshore Infrastructures Limited Through Its Vice President Namely
                          Mr Mahendra Singh Rathore, S/o Govind Singh Aged About 55 Years
                          Old, R/o Rawar, Jodhpur, Rajasthan, Having Its Registerd Office At 2nd
                          Floor Block A, Sm-1b, Mansarovar Complex, MP Nagar, District Bhopal,
                          Madhya Pradesh
                                                                                   ... Petitioner
                                                           versus
                          1 - State of Chhattisgarh Through Its Secretary, Water Resources
                          Department, Mahanadi Bhawan, Atal Nagar, Nava Raipur, District
                          Raipur (C.G.)
                          2 - Engineer-In-Chief Water Resources Department, Government of
                          Chhattisgarh, Jal Sansadhan Bhawan, Raipur, District Raipur (C.G.)
                          3 - Chief Engineer Mahanadi Project, Water Resources Department,
                          Raipur, District Raipur (C.G.)
                          4 - Executive Engineer Water Resources Division, Gariyaband, District
                          Gariyaband (C.G.)
                          5 - Dilip Buildcon Limited Through Its Director, Having Its Registered
                          Office At Plot No. 05, Inside Govind Narayan Singh Gate, Chuna Bhatti,
                          Kolar Road, Bhopal Madhya Pradesh (462016)
                                                                               ... Respondents

    (Cause-title taken from Case Information System)

    For Petitioner : Mr. Manoj Paranjpe, Senior Advocate
    assisted by Mr. Anshul Tiwari, Advocate
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    SPONSORED

    For State/Respondents : Mr. Vivek Sharma, Advocate General
    No.1 to 4 assisted by Mr. Soumya Rai, Deputy
    Government Advocate

    For Respondent No.5 : Mr. Naman Nagrath and Ms. Sharmila
    Singhai, Senior Advocates assisted by Ms.
    Ruchi Nagar, Mr. Kartik Katheuia and Ms.
    Kanchan Kalwani, Advocates

    Hon’ble Shri Ramesh Sinha, Chief Justice
    Hon’ble Shri Ravindra Kumar Agrawal, Judge

    Order on Board

    Per Ramesh Sinha, Chief Justice

    04.08.2026

    1. Though the matter is listed today as a fresh matter for admission,

    considering the nature of the controversy involved, the challenge

    raised to the tender conditions and the consequential action taken

    by the respondent authorities, as also the urgency involved in

    view of the ongoing tender process, and since all the parties are

    represented through their respective learned counsel who have

    expressed their readiness to address the matter finally, with the

    consent of Mr. Manoj Paranjpe, learned Senior Counsel assisted

    by Mr. Anshul Tiwari, learned counsel appearing for the petitioner,

    Mr. Vivek Sharma, learned Advocate General assisted by

    Mr. Soumya Rai, learned Deputy Government Advocate

    appearing for the State/respondents No.1 to 4, and Mr. Naman

    Nagrath and Ms. Sharmila Singhai, learned Senior Counsel

    assisted by Ms. Ruchi Nagar, Mr. Kartik Katheuia and
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    Ms. Kanchan Kalwani, learned counsel appearing for respondent

    No.5, we proceed to hear and decide the writ petition finally at the

    stage of admission itself.

    2. Heard Mr. Manoj Paranjpe, learned Senior Counsel assisted by

    Mr. Anshul Tiwari, learned counsel for the petitioner. Also heard

    Mr. Vivek Sharma, learned Advocate General assisted by Mr.

    Soumya Rai, learned Deputy Government Advocate, appearing

    for the State/respondents No.1 to 4 as well as Mr. Naman Nagrath

    and Ms. Sharmila Singhai, learned Senior Counsel assisted by

    Ms. Ruchi Nagar, Mr. Kartik Katheuia and Ms. Kanchan Kalwani,

    learned counsel appearing for respondent No.5.

    3. By filing the present writ petition under Article 226 of the

    Constitution of India, the petitioner calls in question the legality,

    validity and constitutional propriety of Clause 1.3(b) of Notice

    Inviting Tender (NIT) No. 01/SAC/2026-27 dated 13.05.2026, the

    consequential action of the respondents in declaring the

    petitioner’s technical bid disqualified vide E-mail dated

    23.07.2026, the subsequent opening of the financial bid and

    declaration of Respondent No. 5 as L-1 on 27.07.2026, being

    arbitrary, unreasonable, discriminatory, violative of Article 14 of the

    Constitution of India, contrary to the principles governing public

    procurement and liable to be quashed. The petitioner has prayed

    for following relief(s) :-

    “i. That, the Hon’ble Court may kindly be
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    pleased to Issue an appropriate writ, order or
    direction, preferably in the nature of Certiorari,
    quashing and setting aside Clause 1.3(b) of
    the Notice Inviting Tender (NIT) No.
    01/SAC/2026-27 dated 13.05.2026, issued by
    the respondent Engineer-in-Chief, Water
    Resources Department, Government of
    Chhattisgarh, Raipur (Annexure P/2), insofar
    as it prescribes the requirement of an average
    annual turnover of not less than two times the
    estimated cost of the project, being arbitrary,
    irrational, unreasonable and violative of
    Articles 14 and 19(1)(g) of the Constitution of
    India.

    ii. Issue an appropriate writ, order or direction,
    preferably in the nature of Certiorari, quashing
    and setting aside theproceedings/minutes of
    the Pre-Bid Conference dated 01.06.2026
    (Annexure P/6), insofar as the respondent
    authorities arbitrarily rejected the objections
    raised by the prospective bidders against
    Clause 1.3(b) of the Notice Inviting Tender by
    merely recording that “the provision of the
    clause shall remain unchanged” without
    assigning any reasons or justification, being
    arbitrary, non-speaking, violative of the
    principles of fairness and transparency.

    iii. That, this Hon’ble Court may kindly be
    pleased to quash and set aside the
    communication/e-mail dated 23.07.2026
    (Annex. P / 14 ) issued by the Respondent
    Authority, namely, the Chief Engineer (Tender
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    Cell), Water Resources Department, Raipur,
    whereby the Petitioner’s bid has been
    declared disqualified on 3 grounds, being
    arbitrary, illegal, unsustainable in law, and
    consequential to the impugned eligibility
    condition contained in Clause 1.3(b) of the
    Notice Inviting Tender (NIT) and due to non-

    filing of annexure-XI in prescribed format as
    per NIT, in the interest of justice.

    iv. Issue an appropriate writ, order or direction,
    preferably in the nature of Mandamus,
    directing the respondent authorities to
    consider the technical bid of the petitioner in
    view of clause 1.3 (a) and Annexure X of the
    Notice Inviting Tender and without insisting
    clause 1.3 (b) and Annexure- XI of the tender,
    the petitioner may kindly be held to be
    technically eligible.

    v. Issue an appropriate writ, order or direction
    quashing and setting aside the action of the
    Respondents whereby the Financial Bid has
    been opened on 27.07.2026 and another
    bidder has been declared as the L-1 bidder
    (Annex. P/1), without considering the
    explanation submitted by the Petitioner and
    further be directed to disqualify the
    respondent no. 05 on being ineligible on being
    non-compliant of clause 4 of the tender
    document.

    vi. Issue an appropriate writ, order or direction
    directing the Respondents to consider and
    decide the Petitioner’s representation/
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    explanation objectively and strictly in
    accordance with the tender conditions, after
    affording due consideration to the Petitioner’s
    submissions, and thereafter proceed with the
    tender process in accordance with law.

    vii. Any other relief, which this Hon’ble court
    deems, fit in the facts and circumstances may
    also be granted in favour of the petitioner.”

    4. Brief facts of the case, in a nutshell are that the petitioner is a

    company duly incorporated under the provisions of the

    Companies Act, 1956 and is engaged in the execution of large-

    scale civil engineering and infrastructure projects throughout the

    country. The petitioner has been undertaking works relating to

    irrigation, water resources, pipeline networks, reservoirs and other

    allied infrastructure projects for various Government Departments,

    Public Sector Undertakings and statutory authorities. Being

    possessed of the requisite technical expertise and financial

    capability, the petitioner has regularly participated in Government

    tenders for execution of infrastructure projects.

    5. The Engineer-in-Chief, Water Resources Department,

    Government of Chhattisgarh, Raipur issued Notice Inviting Tender

    (NIT) No. 01/SAC/2026-27 dated 13.05.2026 inviting online bids

    for the work of “Construction of Sikasar to Kodar Reservoir

    Link Canal (Pipeline) under Pairy Project Scheme including

    testing, trial & run, commissioning and operation &
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    maintenance of the complete system for five years after

    completion of the construction work.” The project pertains to

    construction of a pipeline link canal extending from Sikasar

    Reservoir in District Gariaband to Kodar Reservoir in District

    Mahasamund. The estimated value of the project is ₹2,54,986.22

    Lakhs (exclusive of GST), with a stipulated construction period of

    thirty months, followed by operation and maintenance of the

    completed system for a further period of five years.

    6. After issuance of the NIT, the respondent department issued a

    Corrigendum dated 25.05.2026 revising the schedule of the

    tender process. Thereafter, a pre-bid conference was convened

    on 01.06.2026, wherein various prospective bidders participated

    and raised several queries and objections concerning different

    provisions of the tender document, including the financial eligibility

    criteria. The respondent authorities considered the issues raised

    during the pre-bid meeting and thereafter published their

    responses to the queries raised by the participants. The petitioner,

    being desirous of participating in the tender process, examined

    the tender conditions and submitted its bid online along with all

    requisite documents within the prescribed time on 15.06.2026.

    Thereafter, the technical bids submitted by the participating

    bidders were taken up by the respondent authorities for scrutiny

    and evaluation in accordance with the terms and conditions of the

    tender document. During the pendency of the technical

    evaluation, the petitioner approached this Court by filing W.P.(C)
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    No. 3922 of 2026 challenging the financial eligibility condition

    contained in Clause 1.3(b) of the tender document.

    7. During the pendency of the aforesaid writ petition, the respondent

    department, by an e-mail dated 23.07.2026, informed the

    petitioner that its technical bid had been declared disqualified. The

    communication recorded that the petitioner had been found

    ineligible on the grounds that Annexure XI (Affidavit) was not in

    the prescribed format, that the petitioner did not fulfil the average

    annual turnover requirement prescribed under Clause 1.3(b), and

    that it had not fulfilled the requirement relating to cumulative

    payments received from similar works under the said clause.

    Upon receipt of the aforesaid communication, the petitioner

    submitted a detailed representation dated 27.07.2026 responding

    to each of the grounds mentioned in the communication and

    requesting reconsideration of its technical qualification.

    8. On the very same day, i.e., 27.07.2026, the respondent authorities

    proceeded further with the tender process by opening the financial

    bids of the qualified bidders and declared Respondent No. 5 as

    the L-1 bidder. The petitioner thereafter obtained the documents

    submitted by Respondent No. 5 in support of its bid and examined

    the same. Subsequently, W.P.(C) No. 3922 of 2026 came up for

    consideration before this Court on 29.07.2026. In view of the

    developments that had taken place after filing of the earlier writ

    petition, namely the petitioner’s disqualification and the opening of
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    the financial bid resulting in declaration of Respondent No. 5 as

    the L-1 bidder, the petitioner sought permission to withdraw the

    said writ petition with liberty to challenge the subsequent

    developments. This Court permitted withdrawal with liberty as

    prayed for. Accordingly, the petitioner has instituted the present

    writ petition under Article 226 of the Constitution of India

    challenging the impugned tender condition, the rejection of its

    technical bid, and the subsequent actions taken by the

    respondent authorities in the tender process.

    9. Mr. Manoj Paranjpe, learned Senior Counsel assisted by Mr.

    Anshul Tiwari, learned counsel appearing for the petitioner, would

    submit that the present writ petition raises a challenge to the

    legality, reasonableness and constitutional validity of Clause

    1.3(b) of Notice Inviting Tender (NIT) No. 01/SAC/2026-27 dated

    13.05.2026 issued by the Water Resources Department,

    Government of Chhattisgarh. It is submitted that the impugned

    clause, which mandates that a bidder must possess an average

    annual turnover of not less than two times the estimated cost of

    the project, is ex facie arbitrary, irrational and violative of Articles

    14 and 19(1)(g) of the Constitution of India. Learned Senior

    Counsel would contend that the purpose of prescribing financial

    eligibility in a public tender is only to ensure that the successful

    bidder possesses adequate financial capability to execute the

    work. However, insisting upon an annual turnover of

    approximately ₹5,099.72 Crores for a project having an estimated
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    value of ₹2,549.86 Crores bears no rational nexus with the object

    sought to be achieved. According to him, the impugned stipulation

    imposes an artificial and unreasonable financial barrier which

    excludes a large number of experienced, technically competent

    and financially sound contractors from participating in the bidding

    process, thereby defeating the very object of competitive public

    procurement.

    10. Learned Senior Counsel would further submit that the

    arbitrariness of the impugned condition becomes apparent from a

    conjoint reading of Clauses 1.3(a) and 1.3(b) of the tender

    document. It is argued that while Clause 1.3(a) itself prescribes

    the financial capability of a bidder on the basis of the maximum

    value of civil engineering works executed in any one financial year

    during the preceding five years and computes the required

    financial capacity at approximately ₹1,019.94 Crores, Clause

    1.3(b), without any explanation or justification, prescribes an

    altogether different criterion by requiring an average annual

    turnover of approximately ₹5,099.72 Crores along with cumulative

    payments from similar works equal to the probable amount of the

    contract. According to learned Senior Counsel, these two clauses

    operate in the same field but prescribe wholly inconsistent

    standards, thereby creating ambiguity and rendering the eligibility

    criteria self-contradictory and irrational. It is submitted that even

    during the pre-bid conference held on 01.06.2026, several

    prospective bidders pointed out the inconsistency and requested
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    modification of the impugned clause by drawing attention to the

    prevailing norms followed by the Central Public Works

    Department, various State Water Resources Departments and

    other Government agencies. However, the respondent authorities

    rejected the objections by merely recording that “the provision of

    the clause shall remain unchanged” without assigning any

    reasons whatsoever, thereby rendering the decision arbitrary and

    non-speaking.

    11. Learned Senior Counsel would next contend that the impugned

    financial criterion is completely inconsistent with the respondent

    department’s own established tendering policy. Drawing the

    attention of this Court to several Notice Inviting Tenders issued by

    the Water Resources Department in the years 2017, 2023, 2024

    and 2026, it is submitted that the respondent department has

    consistently prescribed financial eligibility based upon execution

    of civil engineering works equivalent to about 60% of the probable

    contract value or prescribed a reasonable net worth criterion of

    around 30% of the project cost. It is argued that none of the

    earlier tenders issued by the respondent department, nor the

    tenders issued by comparable departments in other States,

    prescribe an annual turnover equivalent to twice the estimated

    project cost. According to learned Senior Counsel, the sudden

    departure from the consistent policy of the department, without

    any discernible rationale, study, expert recommendation or

    administrative necessity, demonstrates that the impugned
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    condition has been framed arbitrarily. It is further submitted that

    the petitioner itself satisfies the financial eligibility requirement

    contained in Clause 1.3(a), has executed substantial civil

    engineering works during the relevant financial years and

    possesses the financial capacity to execute the project, which

    stands duly certified by a Chartered Accountant through the

    turnover certificate placed on record.

    12. Learned Senior Counsel would further submit that the subsequent

    actions of the respondent authorities in disqualifying the petitioner

    and proceeding with the tender process are equally arbitrary and

    illegal. It is submitted that during the pendency of the earlier writ

    petition, the petitioner was informed through e-mail dated

    23.07.2026 that its technical bid stood disqualified on the ground

    of non-compliance with Clause 1.3(b), apart from certain

    objections relating to Annexure XI. Immediately thereafter, the

    petitioner submitted a detailed representation dated 27.07.2026

    explaining its stand and requesting reconsideration of the

    decision. However, without considering the petitioner’s

    explanation, the respondent authorities proceeded on the very

    same day to open the financial bids and declared respondent

    No.5 as the L-1 bidder. Learned Senior Counsel would submit that

    the respondents, having invited the petitioner to furnish an

    explanation, were under an obligation to objectively consider the

    same before proceeding further in the tender process. The action

    of opening the financial bid immediately after receipt of the
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    representation, particularly at about 10:18 P.M., according to

    learned Senior Counsel, clearly demonstrates undue haste,

    predetermined decision-making and an attempt to create a fait

    accompli despite being aware that the petitioner had already

    approached this Court.

    13. Lastly, learned Senior Counsel would submit that respondent No.5

    has also been wrongly declared technically eligible inasmuch as

    the documents furnished by it do not satisfy the mandatory

    eligibility requirements prescribed under Clause 4 of the tender

    document. It is argued that the work experience relied upon by

    respondent No.5 pertains to a Joint Venture wherein respondent

    No.5 had only a 65% share, and therefore the entire value of the

    work executed by the Joint Venture could not have been claimed

    as its individual experience. According to learned Senior Counsel,

    on a proper computation, the experience attributable to

    respondent No.5 falls substantially short of the minimum

    qualifying requirement prescribed under Clause 4.1 of the tender

    document. It is further submitted that if the petitioner had not been

    illegally disqualified by application of the impugned Clause 1.3(b),

    the petitioner’s financial bid, amounting to approximately ₹2,448

    Crores, would have rendered it the lowest eligible bidder. Placing

    reliance upon the judgment of the Hon’ble Supreme Court in

    Vinishma Technologies Pvt. Ltd. v. State of Chhattisgarh &

    Others, 2025 SCC OnLine SC 2119, learned Senior Counsel

    would contend that although the State enjoys considerable
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    latitude in prescribing tender conditions, such conditions must

    satisfy the constitutional mandate of fairness, reasonableness and

    non-arbitrariness and must promote a level playing field rather

    than create artificial barriers to participation. It is, therefore,

    prayed that the impugned Clause 1.3(b), the consequential

    disqualification of the petitioner, the opening of the financial bid

    and the declaration of respondent No.5 as the L-1 bidder be

    quashed and appropriate consequential directions be issued in

    favour of the petitioner.

    14. By taking the aforesaid documents on record, learned Senior

    Counsel further submits that the additional documents acquired

    by the petitioner after the institution of the present writ petition go

    to the very root of the controversy and furnish contemporaneous

    evidence demonstrating the arbitrary manner in which the

    impugned tender conditions have been framed. It is submitted that

    the petitioner, despite exercising due diligence, could not procure

    these documents prior to filing of the writ petition, as they became

    available only subsequently. Learned Senior Counsel would

    contend that the documents neither introduce a new cause of

    action nor alter the nature of the challenge; rather, they merely

    substantiate the grounds already urged in the writ petition and

    are, therefore, liable to be taken on record in the interest of

    complete and effective adjudication of the issues involved.

    15. Learned Senior Counsel would further submit that the additional
    15

    tender documents issued by the respondent department itself on

    13.05.2026, i.e., on the very same date as the impugned Notice

    Inviting Tender, unmistakably demonstrate that the onerous

    financial eligibility condition contained in Clause 1.3(b) has not

    been incorporated in the tenders floated for similar irrigation

    projects in District Raipur and District Bastar. According to learned

    Senior Counsel, all the tenders relate to comparable works issued

    by the same department under the same administrative setup and

    during the same period. In such circumstances, there was no

    justification for prescribing a drastically different and onerous

    financial eligibility criterion only in the impugned tender. It is

    submitted that the absence of Clause 1.3(b) in the

    contemporaneous tenders conclusively establishes that the

    impugned condition is neither a standard requirement nor an

    indispensable criterion for execution of similar projects. Learned

    Senior Counsel would submit that the said documents lend

    considerable support to the petitioner’s contention that the

    impugned clause was inserted selectively and without any rational

    basis. It is further contended that the insertion of Clause 1.3(b)

    was not preceded by any approval of the competent authority of

    the Water Resources Department and is also inconsistent with the

    principles governing formulation of eligibility conditions contained

    in the guidelines issued by the Central Vigilance Commission

    (CVC), which require tender conditions to promote fair competition

    and wider participation.

    16

    16. Learned Senior Counsel would next submit that the additional

    documents relating to the eligibility of Respondent No. 5 – Dilip

    Buildcon Limited conclusively establish that the experience relied

    upon by Respondent No. 5 pertains to a Joint Venture (DBL-SIPL

    JV) and not to Dilip Buildcon Limited acting in its independent

    capacity. Inviting the attention of this Court to the certificate dated

    26.05.2026 issued by MP Jal Nigam Maryadit as well as the Letter

    of Acceptance dated 08.08.2022, it is submitted that both the

    documents unequivocally record that the contract had been

    awarded to DBL-SIPL (JV) and that the certificate itself was

    issued at the request of the Joint Venture for tendering purposes.

    According to learned Senior Counsel, these official documents

    demolish the claim of Respondent No. 5 that it independently

    satisfies the eligibility criteria prescribed under Clause 4 of the

    tender document. It is contended that the respondent department

    has erroneously treated the entire value of the Joint Venture work

    as the individual experience of Respondent No. 5, contrary to the

    express terms of the tender, thereby materially affecting the

    evaluation process and conferring an undue advantage upon

    Respondent No. 5.

    17. Learned Senior Counsel would lastly submit that these additional

    documents, when read together with the pleadings already on

    record, fortify the petitioner’s case that the impugned tender

    process has not been conducted in a fair, transparent and non-

    discriminatory manner. According to him, the contemporaneous
    17

    tender documents, coupled with the material relating to the

    eligibility of Respondent No. 5, provide a complete factual

    foundation for the petitioner’s allegation that the impugned

    eligibility condition was introduced selectively and the tender

    process was administered in a manner which resulted in

    conferring an undue benefit upon Respondent No. 5. It is,

    therefore, submitted that the additional documents deserve to be

    taken on record, as they have a direct bearing on the questions of

    arbitrariness, equality, transparency and fairness in public

    procurement and would assist this Court in effectively adjudicating

    the issues arising in the present writ petition.

    18. Mr. Vivek Sharma, learned Advocate General assisted by Mr.

    Soumya Rai, learned Deputy Government Advocate, appearing

    for the State/respondents No. 1 to 4, opposes the submissions

    advanced by learned Senior Counsel appearing for the petitioner

    and would submit that the present writ petition deserves to be

    dismissed at the threshold as being devoid of any merit. Learned

    Advocate General would contend that the petitioner is attempting

    to invite this Hon’ble Court to rewrite the terms of a commercial

    tender, which is impermissible in exercise of the power of judicial

    review under Article 226 of the Constitution of India. It is submitted

    that the eligibility conditions incorporated in the Notice Inviting

    Tender were consciously framed by the Tender Inviting Authority

    after taking into consideration the magnitude, technical

    complexity, financial implications and long-term operation and
    18

    maintenance obligations attached to the project. The Court, while

    exercising judicial review, does not sit in appeal over the wisdom

    of the tendering authority nor substitute its own opinion regarding

    what ought to be the appropriate eligibility criteria. Unless the

    petitioner is able to establish that the conditions are ex facie

    arbitrary, actuated by mala fides or tailored to favour a particular

    bidder, no interference is warranted. It is further submitted that

    there is no foundational pleading whatsoever in the writ petition

    alleging or demonstrating that Clause 1.3(b) was inserted without

    approval of the competent authority, that it is contrary to any

    statutory provision or binding guideline, or that it violates any

    mandatory Government policy. In absence of such pleadings

    supported by cogent material, the petitioner cannot be permitted

    to improve its case by way of subsequent applications or oral

    submissions.

    19. Learned Advocate General would further submit that the petitioner

    has been rightly declared technically disqualified not merely on

    account of non-fulfilment of Clause 1.3(b), but also because of its

    failure to comply with several mandatory conditions forming part

    of the pre-qualification document. Inviting the attention of this

    Court to Clause 12 of the Information and Instructions to

    Tenderers, learned Advocate General submits that every bidder is

    mandatorily required to furnish an affidavit in the prescribed

    format contained in Annexure XI certifying the correctness of the

    information furnished in Annexures I to VI. The language
    19

    employed in Clause 12 leaves no discretion either with the bidder

    or with the Tender Inviting Authority, inasmuch as it specifically

    mandates furnishing of the affidavit “in the prescribed format as

    per Annexure XI.” Likewise, Clause 4 of the Information and

    Instructions expressly stipulates that all information sought in the

    prescribed forms must be furnished against the respective

    columns and specifically cautions that if information is supplied in

    any different format or if any alteration is made in the prescribed

    format, the tenderer may be summarily disqualified. Learned

    Advocate General submits that the petitioner consciously chose to

    submit an affidavit not in conformity with Annexure XI by

    introducing qualifications and modifications of its own, despite the

    tender document mandating submission in the prescribed format.

    According to learned Advocate General, once the tender itself

    declares the prescribed format to be mandatory, substantial

    compliance cannot substitute strict compliance, particularly in

    matters relating to public procurement where uniformity and equal

    treatment of bidders is of paramount importance.

    20. Learned Advocate General would further contend that the

    submission advanced on behalf of the petitioner that Annexure X

    provided an alternative route dispensing with Annexure XI is

    wholly misconceived and contrary to the express provisions of the

    tender document. It is submitted that Annexure X and Annexure

    XI operate in different fields. Annexure X merely specifies the

    documents required for establishing eligibility in certain
    20

    contingencies, whereas Annexure XI is an independent affidavit

    affirming the correctness and authenticity of the information

    furnished in Annexures I to VI. The petitioner cannot rely upon

    Annexure X to avoid compliance with Annexure XI, when the

    tender document itself specifically requires that Annexure XI be

    furnished in the prescribed format. Learned Advocate General

    submits that Envelope ‘B’, which contains the pre-qualification

    documents, specifically requires complete information in

    Annexures I to XII together with all supporting documents. The

    tender document further provides that all Annexures are required

    to be filled in completely and uploaded, separate papers may be

    attached wherever necessary, and incomplete information or

    deviation from the prescribed format would entail disqualification.

    It is submitted that the petitioner admittedly did not furnish

    Annexure XI in the prescribed form and, therefore, the Tender

    Evaluation Committee rightly held the petitioner to be non-

    responsive.

    21. Learned Advocate General would next submit that the petitioner

    also failed to satisfy the substantive eligibility criteria contained in

    Clause 1.3(b) and cannot seek judicial intervention merely

    because it fulfils Clause 1.3(a). According to him, Clauses 1.3(a)

    and 1.3(b) are cumulative and not alternative. Both conditions

    independently assess different aspects of financial capability.

    Clause 1.3(a) evaluates the bidder’s capacity based on the value

    of civil engineering work executed during the relevant period,
    21

    whereas Clause 1.3(b) examines the overall financial strength of

    the bidder by prescribing average annual turnover and cumulative

    receipts from similar works. It is submitted that both criteria

    complement each other and cannot be read disjunctively merely

    because the petitioner satisfies one of them. Learned Advocate

    General would submit that the petitioner is attempting to persuade

    this Court to read the word “or” where none exists and thereby

    rewrite the eligibility conditions after having participated in the

    tender process with full knowledge of all terms and conditions.

    Such an exercise, according to him, is wholly impermissible in

    law.

    22. Learned Advocate General would further submit that the challenge

    laid by the petitioner to the eligibility of respondent No.5 is equally

    devoid of substance. Inviting attention to Clause 3.8(a) of the

    tender document, learned Advocate General submits that while

    Joint Ventures are not permitted for participating in the present

    tender, the clause nowhere prohibits a bidder from relying upon

    experience lawfully acquired in execution of earlier contracts in

    accordance with the applicable tender conditions. It is further

    submitted that Clause 4.1(i) and Clause 4.1(ii) merely require the

    prime contractor to have satisfactorily completed one similar work

    of the prescribed value or two similar works of the prescribed

    value within the stipulated period. According to learned Advocate

    General, the Tender Evaluation Committee examined all

    documents submitted by respondent No.5, including the work
    22

    completion certificates, Letter of Acceptance and supporting

    documents, and being fully satisfied that respondent No.5 fulfilled

    the eligibility requirements, declared it technically qualified. Such

    assessment of technical eligibility is within the exclusive domain of

    the expert Tender Evaluation Committee and cannot be re-

    appreciated by this Court in exercise of judicial review merely

    because the petitioner seeks to interpret the documents

    differently.

    23. Learned Advocate General would also submit that the tender

    document itself, particularly Clause 5.0 relating to Disqualification,

    authorises the department to reject bids where misleading,

    incomplete or incorrect information is furnished or where the

    prescribed formats are not adhered to. Clause 5.0 expressly

    provides that failure to furnish complete information in the

    prescribed format or making changes in the prescribed forms may

    result in summary disqualification. Similarly, the note appended to

    Envelope ‘B’ requires complete filling of Annexures I to XII,

    uploading of all supporting documents and production of original

    certificates whenever demanded by the department. It is

    submitted that the petitioner seeks relaxation of mandatory

    conditions after submission of its bid, which would itself amount to

    conferring an unfair advantage upon one bidder and would violate

    the principle of equality amongst all participants who have strictly

    complied with the tender conditions. The Tender Inviting Authority,

    therefore, rightly refused to dilute the mandatory requirements
    23

    after commencement of the evaluation process.

    24. Lastly, learned Advocate General would submit that the petitioner

    has failed to lay any factual foundation for its allegations of mala

    fides, favouritism or collusion. There is no specific pleading, much

    less any supporting material, identifying the officer against whom

    mala fides are alleged, the manner in which the impugned clause

    was allegedly introduced to favour respondent No.5, or the source

    from which the petitioner claims that prior approval of the

    competent authority was not obtained. Bald allegations of

    arbitrariness, unsupported by material particulars, cannot

    constitute a ground for judicial interference in contractual matters.

    It is, therefore, submitted that the petitioner, having failed to

    comply with the mandatory requirements contained in Clause 12,

    Clause 4, Clauses 3.8(a) and 3.8(b), Clause 4.1(i) and (ii), Clause

    5.0, the requirements governing Envelope ‘B’, and the prescribed

    Annexures X and XI, was rightly declared technically disqualified.

    25. Learned Advocate General submits that the petitioner has

    consciously participated in the tender process with full knowledge

    and complete acceptance of all the terms and conditions

    contained in the Notice Inviting Tender, including the eligibility

    criteria, the pre-qualification requirements, the mandatory formats

    prescribed under Annexures I to XII, and the procedure prescribed

    for evaluation of bids. Having voluntarily participated in the tender

    without challenging the conditions at the threshold and having
    24

    submitted its bid subject to the tender conditions, the petitioner

    cannot now seek to selectively assail only those clauses under

    which it has been found ineligible. It is further submitted that the

    petitioner admittedly failed to comply with the mandatory

    requirement of furnishing Annexure XI in the prescribed format

    and also failed to satisfy the financial eligibility stipulated under

    Clause 1.3(b) of the NIT. The petitioner, therefore, was rightly

    declared technically disqualified in accordance with the terms of

    the tender. Learned Advocate General would contend that the

    Tender Evaluation Committee has merely applied the conditions

    uniformly to all bidders and no relaxation or concession has been

    extended to any participant. The allegation that the conditions

    were incorporated to favour respondent No.5 is wholly

    speculative, unsupported by any pleading or contemporaneous

    material, and does not satisfy the settled requirements for alleging

    mala fides in law. It is also submitted that the additional

    allegations sought to be raised during the course of arguments,

    namely that Clause 1.3(b) was inserted without approval of the

    competent authority or that it is contrary to the guidelines of the

    Central Vigilance Commission, do not even find place in the

    pleadings and, therefore, cannot be permitted to be urged in the

    absence of a proper factual foundation.

    26. Learned Advocate General lastly submits that the assessment of

    technical eligibility and evaluation of bids has been carried out

    strictly in accordance with the tender conditions by an Expert
    25

    Tender Evaluation Committee and such technical evaluation is not

    amenable to re-appreciation by this Hon’ble Court in exercise of

    judicial review unless the decision-making process is shown to be

    arbitrary, mala fide or actuated by extraneous considerations,

    which the petitioner has miserably failed to establish. It is,

    therefore, submitted that no case for interference under Article

    226 of the Constitution of India is made out, and the writ petition

    deserves to be dismissed with costs.

    27. Mr. Naman Nagrath and Ms. Sharmila Singhai, learned Senior

    Counsel assisted by Ms. Ruchi Nagar, Mr. Kartik Katheuia and

    Ms. Kanchan Kalwani, learned counsel appearing for respondent

    No.5, while adopting the submissions advanced by the learned

    Advocate General on behalf of the State, further submit that the

    present writ petition is nothing but an attempt on the part of the

    petitioner to overcome its own failure to satisfy the mandatory

    eligibility conditions of the tender. It is submitted that the

    petitioner, having participated in the tender process with full

    knowledge of all the terms and conditions contained in the Notice

    Inviting Tender, cannot, after having been declared technically

    disqualified, seek to challenge the very conditions which governed

    the tender process. Learned Senior Counsel would contend that

    the petitioner has failed to establish any arbitrariness or illegality

    in the decision-making process and is in fact seeking modification

    and re-writing of the tender conditions by inviting this Hon’ble

    Court to substitute its own interpretation in place of the express
    26

    language employed by the Tender Inviting Authority. Such a

    course, it is submitted, is wholly impermissible in law and contrary

    to the settled principles governing judicial review of contractual

    matters.

    28. Learned Senior Counsel would further submit that the entire

    edifice of the petitioner’s case is founded upon the objections

    allegedly raised during the Pre-Bid Conference dated 01.06.2026.

    However, the petitioner itself admittedly did not participate in the

    said pre-bid conference, nor did it raise any objection

    independently before the Tender Inviting Authority regarding

    Clause 1.3(b) or any other condition contained in the Notice

    Inviting Tender. It is submitted that the objections referred to by

    the petitioner were raised by certain other prospective bidders and

    not by the petitioner. Having consciously abstained from

    participating in the pre-bid process, the petitioner cannot now

    seek to appropriate objections raised by third parties and claim

    any benefit therefrom. Learned Senior Counsel would submit that

    the pre-bid conference is intended to afford intending bidders an

    opportunity to seek clarification or modification of tender

    conditions before submission of bids. The petitioner having failed

    to avail such opportunity cannot subsequently challenge the

    outcome of the pre-bid deliberations or rely upon representations

    made by other participants. According to learned Senior Counsel,

    the petitioner cannot be permitted to build its case upon

    objections raised by strangers to the present proceedings when it
    27

    neither participated in the deliberations nor pursued any

    independent objection before submission of its bid.

    29. Learned Senior Counsel would next submit that the petitioner has

    been rightly declared technically disqualified on account of its

    failure to comply with the mandatory requirement of submitting

    Annexure XI in the prescribed format. Referring to the explanation

    furnished by the petitioner after its disqualification, learned Senior

    Counsel would submit that the petitioner has virtually admitted

    that it deliberately altered the prescribed affidavit on the

    assumption that Annexure X entitled it to adopt a different format.

    It is submitted that such a stand is wholly misconceived and

    contrary to the express language of the tender document.

    Annexure XI specifically requires the bidder to affirm the

    correctness of the information furnished and to certify compliance

    in the exact format prescribed by the Tender Inviting Authority. The

    petitioner had no authority whatsoever to substitute its own

    understanding of the tender conditions or to redraft the affidavit

    according to its own convenience. Learned Senior Counsel would

    contend that the tender conditions do not permit any bidder to

    modify, qualify or rewrite the prescribed declaration merely

    because, in its opinion, a different interpretation of Annexure X is

    possible. Once the Tender Inviting Authority has prescribed a

    specific format, every bidder is required to adhere to the same

    uniformly. Permitting one bidder to alter the prescribed affidavit

    according to its own interpretation would destroy uniformity in the
    28

    evaluation process and defeat the very object of prescribing

    standardised declarations. It is, therefore, submitted that the

    petitioner cannot claim that its self-drafted affidavit constitutes

    substantial compliance with Annexure XI.

    30. Learned Senior Counsel would further submit that the petitioner’s

    challenge to the eligibility of respondent No.5 is equally

    misconceived and proceeds on a complete misreading of the

    tender conditions. The petitioner has repeatedly relied upon the

    fact that the experience relied upon by respondent No.5 pertains

    to a Joint Venture. According to learned Senior Counsel, the

    petitioner is confusing the prohibition contained in Clause 3.8(a)

    with the nature of experience that may be relied upon by a bidder.

    Clause 3.8(a) merely prohibits submission of a bid through a Joint

    Venture in the present tender, and does not prohibit a bidder from

    relying upon experience lawfully acquired in execution of previous

    contracts in accordance with the applicable contractual

    arrangements. Respondent No.5 has participated in the present

    tender as an independent bidder and not as a Joint Venture. The

    Tender Evaluation Committee examined all documents produced

    by respondent No.5 and, being satisfied that the eligibility criteria

    stood fulfilled, declared respondent No.5 technically qualified.

    Learned Senior Counsel would submit that the petitioner seeks to

    import restrictions into the tender document which do not exist

    and thereby invite this Court to undertake a fresh technical

    evaluation, which is beyond permissible scope of judicial review.
    29

    31. Lastly, learned Senior Counsel would submit that the petitioner’s

    conduct throughout the tender process demonstrates that it seeks

    to avoid the consequences of its own non-compliance with

    mandatory tender conditions. The petitioner neither complied with

    the prescribed format of Annexure XI, nor satisfied the financial

    eligibility under Clause 1.3(b), nor raised any independent

    objection before the Tender Inviting Authority at the appropriate

    stage. Having participated in the tender process without protest

    and having accepted the terms and conditions in their entirety, the

    petitioner cannot now contend that one condition should be

    ignored, another should be interpreted differently and the

    prescribed affidavit should be treated as optional. The terms and

    conditions of a tender are framed by the Tender Inviting Authority

    in exercise of its administrative discretion, and it is not open to a

    bidder to decide which clauses are mandatory, which are directory

    or in what manner the prescribed declarations should be worded.

    The petitioner cannot unilaterally substitute its own interpretation

    for the express language employed in the tender document and

    thereafter seek judicial endorsement of such interpretation. It is,

    therefore, submitted that the writ petition is devoid of merit, the

    technical disqualification of the petitioner has been made strictly in

    accordance with the tender conditions, and respondent No.5 has

    been rightly declared technically qualified and subsequently found

    to be the successful bidder. Accordingly, the writ petition deserves

    to be dismissed with exemplary costs.

    30

    32. We have heard learned counsel for the parties at length,

    considered their rival submissions with due care and perused the

    pleadings and documents available on record.

    33. We have heard Mr. Manoj Paranjpe, learned Senior Counsel

    assisted by Mr. Anshul Tiwari, learned counsel appearing for the

    petitioner, Mr. Vivek Sharma, learned Advocate General assisted

    by Mr. Soumya Rai, learned Deputy Government Advocate

    appearing for the State/Respondents No.1 to 4, and Mr. Naman

    Nagrath and Ms. Sharmila Singhai, learned Senior Counsel

    assisted by Ms. Ruchi Nagar, Mr. Kartik Katheuia and Ms.

    Kanchan Kalwani, learned counsel appearing for Respondent

    No.5, at considerable length. We have also perused the

    pleadings, documents brought on record, the original tender

    documents as well as the relevant clauses governing the tender

    process.

    34. Before proceeding further, we deem it appropriate to notice certain

    material provisions contained in the Notice Inviting Tender itself,

    as the controversy raised in the present writ petition revolves

    around the interpretation and application thereof. Clause 4 of the

    Information and Instructions to Tenderers specifically provides that

    every bidder shall furnish complete information in the prescribed

    forms against each respective column and further cautions that

    “not giving complete information called for in the application, in

    the format required or making any change in the prescribed
    31

    format may result in the tenderer being summarily disqualified.”

    Likewise, Clause 12 expressly mandates that “an affidavit in the

    prescribed format as per Annexure-XI should be furnished by the

    Tenderer regarding correctness of the information furnished at

    Annexure I to Annexure VI.” The tender document further

    stipulates under the Note appended to Envelope ‘B’ that

    Annexures I to XII are required to be completely filled in,

    accompanied by all supporting documents, failing which the

    bidder exposes itself to the consequences envisaged under the

    tender conditions. Clause 5.0, dealing with disqualification, further

    authorises the Tender Inviting Authority to disqualify a bidder who

    furnishes incomplete information, makes false or misleading

    declarations, or fails to furnish the requisite information in the

    prescribed manner. Equally significant is Clause 3.8(a), which

    categorically stipulates that Joint Venture is not permitted in

    the present tender, while Clause 4.1(i) and 4.1(ii) prescribe the

    technical experience required to be possessed by the prime

    contractor in its own name and style. These provisions, read

    conjointly, unmistakably demonstrate that the employer

    consciously intended strict compliance with the eligibility

    conditions and prescribed formats and did not contemplate any

    relaxation or deviation therefrom.

    35. The law governing judicial review in contractual and tender

    matters is no longer res integra. Beginning with Tata Cellular v.

    Union of India, (1994) 6 SCC 651, followed by Raunaq
    32

    International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC

    492, Air India Ltd. v. Cochin International Airport Ltd., (2000)

    2 SCC 617, Jagdish Mandal v. State of Orissa, (2007) 14 SCC

    517, Michigan Rubber (India) Ltd. v. State of Karnataka,

    (2012) 8 SCC 216, Afcons Infrastructure Ltd. v. Nagpur Metro

    Rail Corporation Ltd., (2016) 16 SCC 818, Silppi

    Constructions Contractors v. Union of India, (2020) 16 SCC

    489, N.G. Projects Ltd. v. Vinod Kumar Jain, (2022) 6 SCC

    127, and National High Speed Rail Corporation Ltd. v.

    Montecarlo Ltd., (2022) 6 SCC 401, the Hon’ble Supreme Court

    has consistently held that the constitutional courts exercise only a

    limited power of judicial review in matters relating to award of

    public contracts. The Court is not expected to sit as an appellate

    authority over commercial decisions of the employer nor is it

    required to examine whether another condition could have been

    wiser, fairer or commercially more prudent. The author of the

    tender document is the best judge of its requirements, and unless

    the decision-making process is shown to be arbitrary, irrational,

    actuated by mala fides or intended to favour a particular bidder in

    violation of Article 14 of the Constitution, judicial interference is

    wholly unwarranted.

    36. Very recently, the Apex Court, in the matter of Banshidhar

    Construction Pvt. Ltd. v. Bharat Coking Coal Ltd. & Others,

    {Civil Appeal No. 11005 OF 2024, decided on 04.10.2024},

    taking note of the decisions rendered in various other celebrated
    33

    judgments, observed as under:-

    “21. There cannot be any disagreement to the
    legal proposition propounded in catena of
    decisions of this Court relied upon by the
    learned counsels for the Respondents to the
    effect that the Court does not sit as a Court of
    Appeal in the matter of award of contracts and
    it merely reviews the manner in which the
    decision was made; and that the Government
    and its instrumentalities must have a freedom
    of entering into the contracts. However, it is
    equally well settled that the decision of the
    government/ its instrumentalities must be free
    from arbitrariness and must not be affected by
    any bias or actuated by malafides.
    Government bodies being public authorities
    are expected to uphold fairness, equality and
    public interest even while dealing with
    contractual matters. Right to equality under
    Article 14 abhors arbitrariness. Public
    authorities have to ensure that no bias,
    favouritism or arbitrariness are shown during
    the bidding process and that the entire bidding
    process is carried out in absolutely
    transparent manner.

    22. At this juncture, we may reiterate the well-
    established tenets of law pertaining to the
    scope of judicial intervention in Government
    Contracts.

    23. In Sterling Computers Limited vs. M/s.
    M & N Publications Limited and Others 1,
    1 (1993) 1 SCC 445
    34

    this Court while dealing with the scope of
    judicial review of award of contracts held: –

    “18. While exercising the power of judicial
    review, in respect of contracts entered into
    on behalf of the State, the Court is
    concerned primarily as to whether there
    has been any infirmity in the “decision
    making process”. In this connection
    reference may be made to the case of
    Chief Constable of the North Wales Police
    v. Evans [(1982) 3 All ER 141] where it was
    said that: (p. 144a)

    “The purpose of judicial review is to ensure
    that the individual receives fair treatment,
    and not to ensure that the authority, after
    according fair treatment, reaches on a
    matter which it is authorised or enjoined by
    law to decide for itself a conclusion which is
    correct in the eyes of the court.”

    By way of judicial review the court cannot
    examine the details of the terms of the
    contract which have been entered into by
    the public bodies or the State. Courts have
    inherent limitations on the scope of any
    such enquiry. But at the same time as was
    said by the House of Lords in the aforesaid
    case, Chief Constable of the North Wales
    Police v. Evans [(1982) 3 All ER 141] the
    courts can certainly examine whether
    “decision-making process” was reasonable,
    rational, not arbitrary and violative of Article
    14
    of the Constitution.”

    35

    24. In Tata Cellular vs. Union of India 2, this
    Court had laid down certain principles for the
    judicial review of administrative action.

    “94. The principles deducible from the
    above are:

    (1) The modern trend points to judicial
    restraint in administrative action.

    (2) The court does not sit as a court of
    appeal but merely reviews the manner in
    which the decision was made.

    (3) The court does not have the expertise
    to correct the administrative decision. If a
    review of the administrative decision is
    permitted it will be substituting its own
    decision, without the necessary expertise
    which itself may be fallible.

    (4) The terms of the invitation to tender
    cannot be open to judicial scrutiny because
    the invitation to tender is in the realm of
    contract. Normally speaking, the decision
    to accept the tender or award the contract
    is reached by process of negotiations
    through several tiers. More often than not,
    such decisions are made qualitatively by
    experts.

    (5) The Government must have freedom of
    contract. In other words, a fair play in the
    joints is a necessary concomitant for an
    administrative body functioning in an
    administrative sphere or quasi-
    2 (1994) 6 SCC 651
    36

    administrative sphere. However, the
    decision must not only be tested by the
    application of Wednesbury principle of
    reasonableness (including its other facts
    pointed out above) but must be free from
    arbitrariness not affected by bias or
    actuated by mala fides.

    (6) Quashing decisions may impose heavy
    administrative burden on the administration
    and lead to increased and unbudgeted
    expenditure. Based on these principles we
    will examine the facts of this case since
    they commend to us as the correct
    principles.”

    25. It has also been held in ABL International
    Limited and Another vs. Export Credit
    Guarantee Corporation of India Limited
    and Others3
    , as under: –

    “53. From the above, it is clear that when
    an instrumentality of the State acts contrary
    to public good and public interest, unfairly,
    unjustly and unreasonably, in its
    contractual, constitutional or statutory
    obligations, it really acts contrary to the
    constitutional guarantee found in Article 14
    of the Constitution.”

    26. In Jagdish Mandal vs. State of Orissa
    and Others4
    , this Court after discussing
    number of judgments laid down two tests to
    determine the extent of judicial interference in
    3 (2004) 3 SCC 553
    4 (2007) 14 SCC 517
    37

    tender matters. They are: –

    “22. (i) Whether the process adopted or
    decision made by the authority is mala fide
    or intended to favour someone; or Whether
    the process adopted or decision made is so
    arbitrary and irrational that the court can
    say: “the decision is such that no
    responsible authority acting reasonably and
    in accordance with relevant law could have
    reached;”

    (ii) Whether public interest is affected. If the
    answers are in the negative, there should
    be no interference under Article 226. Cases
    involving blacklisting or imposition of penal
    consequences on a tenderer/contractor or
    distribution of State largesse (allotment of
    sites/shops, grant of licences, dealerships
    and franchises) stand on a different footing
    as they may require a higher degree of
    fairness in action.”

    27. In Mihan India Ltd. vs. GMR Airports
    Ltd. and Others5
    , while observing that the
    government contracts granted by the
    government bodies must uphold fairness,
    equality and rule of law while dealing with the
    contractual matters, it was observed in Para
    50 as under: –

    “50. In view of the above, it is apparent that
    in government contracts, if granted by the
    government bodies, it is expected to uphold
    fairness, equality and rule of law while
    5 (2022) SCC OnLine SC 574
    38

    dealing with contractual matters. Right to
    equality under Article 14 of the Constitution
    of India abhors arbitrariness. The
    transparent bidding process is favoured by
    the Court to ensure that constitutional
    requirements are satisfied. It is said that
    the constitutional guarantee as provided
    under Article 14 of the Constitution of India
    demands the State to act in a fair and
    reasonable manner unless public interest
    demands otherwise. It is expedient that the
    degree of compromise of any private
    legitimate interest must correspond
    proportionately to the public interest.”

    28. It was sought to be submitted by the
    learned Counsels for the Respondents relying
    upon the observations made in Central
    Coalfields Limited and Another vs. SLL-

    SML (Joint Venture Consortium) and
    Others6, that whether a term of NIT is
    essential or not is a decision taken by the
    employer which should be respected.

    However, in the said judgment also it is
    observed that if the employer has exercised
    the inherent authority to deviate from the
    essential term, such deviation has to be made
    applicable to all the bidders and potential
    bidders. It was observed in Para 47 and 48 as
    under:-

    “47. The result of this discussion is that the
    issue of the acceptance or rejection of a bid
    or a bidder should be looked at not only
    6 (2016) 8 SCC 622
    39

    from the point of view of the unsuccessful
    party but alsofrom the point of view of the
    employer. As held in Ramana Dayaram
    Shetty [Ramana Dayaram Shetty v.

    International Airport Authority of India,
    (1979) 3 SCC 489] the terms of NIT cannot
    be ignored as being redundant or
    superfluous. They must be given a
    meaning and the necessary significance.

    As pointed out in Tata Cellular [Tata
    Cellular v. Union of India
    , (1994) 6 SCC
    651] there must be judicial restraint in
    interfering with administrative action.

    Ordinarily, the soundness of the decision
    taken by the employer ought not to be
    questioned but the decision-making
    process can certainly be subject to judicial
    review. The soundness of the decision may
    be questioned if it is irrational or mala fide
    or intended to favour someone or a
    decision “that no responsible authority
    acting reasonably and in accordance with
    relevant law could have reached” as held
    in Jagdish Mandal [Jagdish Mandal v. State
    of Orissa
    , (2007) 14 SCC 517] followed in
    Michigan Rubber [Michigan Rubber (India)
    Ltd. v. State of Karnataka
    , (2012) 8 SCC
    216].

    48. Therefore, whether a term of NIT is
    essential or not is a decision taken by the
    employer which should be respected. Even
    if the term is essential, the employer has
    the inherent authority to deviate from it
    40

    provided the deviation is made applicable
    to all bidders and potential bidders as held
    in Ramana Dayaram Shetty [Ramana
    Dayaram Shetty v.International Airport
    Authority of India, (1979) 3 SCC 489] .

    However, if the term is held by the
    employer to be ancillary or subsidiary, even
    that decision should be respected. The
    lawfulness of that decision can be
    questioned on very limited grounds, as
    mentioned in the various decisions
    discussed above, but the soundness of the
    decision cannot be questioned, otherwise
    this Court would be taking over the function
    of the tender issuing authority, which it
    cannot.”

    37. Keeping the aforesaid settled principles in view, we have carefully

    examined the challenge mounted by the petitioner to Clause

    1.3(b) of the Notice Inviting Tender. In our considered opinion, the

    entire challenge proceeds on the premise that the financial

    criterion prescribed therein ought to have been different from what

    has been stipulated by the employer. Such an exercise is clearly

    beyond the permissible limits of judicial review. The formulation of

    eligibility conditions is a matter falling within the exclusive domain

    of the Tender Inviting Authority, which is expected to possess the

    necessary technical expertise regarding the nature of work,

    financial exposure, execution schedule, project risks and long-

    term obligations under the contract. Merely because another

    employer or even the same department in another project has
    41

    prescribed a different financial benchmark does not ipso facto

    render the impugned condition unconstitutional. Every public

    project has its own technical specifications, engineering

    challenges, execution methodology and financial implications. It is

    neither permissible nor desirable for this Court to undertake a

    comparative analysis of different tenders and substitute its own

    perception of what the eligibility criteria ought to have been.

    38. We also find that the petitioner has failed to lay any factual

    foundation demonstrating that Clause 1.3(b) is arbitrary in the

    constitutional sense. There is no material to establish that the

    condition is impossible of compliance, incapable of being

    achieved by competent contractors or designed solely to exclude

    the petitioner. The allegation that the clause was inserted only to

    favour respondent No.5 remains a mere assertion unsupported by

    any contemporaneous material. It is trite that allegations of mala

    fides are amongst the most serious allegations known to law and

    cannot be accepted on conjectures, suspicion or inference. No

    officer has been impleaded against whom mala fides are

    attributed. No document has been placed on record to

    demonstrate that the impugned clause was inserted at the

    instance of respondent No.5 or for conferring an undue advantage

    upon it. In absence of foundational pleadings and cogent

    evidence, such allegations deserve outright rejection.

    39. Another aspect which persuades us against granting relief is the
    42

    admitted conduct of the petitioner. The petitioner admittedly

    downloaded the tender document, accepted all the terms and

    conditions contained therein, submitted its technical bid,

    participated in the tender process and only after having been

    declared technically disqualified has chosen to assail the very

    conditions governing the tender. The law is equally well settled

    that a bidder who participates in the tender process with full

    knowledge of the conditions cannot subsequently challenge those

    very conditions merely because the outcome has gone against

    him. The doctrine of approbation and reprobation squarely

    applies. A participant cannot be permitted to take a chance in the

    bidding process and thereafter, upon failure, seek judicial

    intervention to invalidate the rules of the game.

    40. The submission advanced on behalf of the petitioner regarding

    Annexure XI also does not impress us. Clause 12 specifically

    mandates furnishing of an affidavit in the prescribed format.

    Clause 4 simultaneously warns every bidder that any deviation

    from the prescribed format may result in summary disqualification.

    The explanation subsequently furnished by the petitioner itself

    demonstrates that it consciously altered the prescribed affidavit on

    the assumption that Annexure X entitled it to adopt a different

    declaration. Such an interpretation cannot be accepted. The

    tender conditions nowhere authorise an individual bidder to

    modify the prescribed format according to its own understanding.

    Acceptance of such a plea would lead to complete uncertainty in
    43

    the tender process, as every bidder would then be entitled to

    rewrite the prescribed declarations according to its own

    perception of the tender conditions. Uniformity in public

    procurement necessarily requires strict adherence to the

    prescribed forms, and the Tender Evaluation Committee cannot

    be faulted for insisting upon compliance with the tender document

    as it stood.

    41. Equally untenable is the submission that Clauses 1.3(a) and

    1.3(b) are mutually destructive. A plain reading of the tender

    document does not indicate that either clause is intended to

    operate as an alternative to the other. On the contrary, the

    eligibility criteria have been structured to evaluate different

    aspects of the bidder’s financial capability. It is not for this Court to

    rewrite the tender by reading into it an alternative which the

    employer has consciously not provided. Such an exercise would

    amount to redrafting the commercial terms of the contract, which

    is wholly impermissible in exercise of powers under Article 226 of

    the Constitution.

    42. The challenge to the eligibility of respondent No.5 also does not

    merit acceptance. The entire argument is founded upon the

    petitioner’s interpretation of the experience certificate and the

    effect of Clause 3.8(a). The Tender Evaluation Committee,

    comprising technical experts, examined the documents submitted

    by respondent No.5 and found the same to be in conformity with
    44

    the eligibility requirements. It is settled that the constitutional court

    does not substitute its own interpretation for that of the expert

    committee unless the decision is shown to be perverse or contrary

    to the express stipulations of the tender. No such perversity has

    been demonstrated before us.

    43. We also cannot lose sight of the fact that the petitioner admittedly

    did not participate in the pre-bid meeting where intending bidders

    were invited to seek clarifications regarding the tender conditions.

    The objections now heavily relied upon by the petitioner were

    admittedly raised by some other bidders. Having consciously

    chosen not to participate in the pre-bid process, the petitioner

    cannot now seek to derive benefit from objections raised by third

    parties or contend that the rejection thereof furnishes a cause of

    action in its favour.

    44. Before recording our final conclusion, it would also be necessary

    to notice certain undisputed factual aspects emerging from the

    record, which, in our considered opinion, have a material bearing

    on the maintainability as well as the merits of the present

    challenge. Firstly, the petitioner admittedly did not participate in

    the Pre-Bid Conference convened by the respondent authorities

    on 01.06.2026, which was specifically intended to enable

    prospective bidders to seek clarifications and raise objections

    regarding the eligibility conditions and other stipulations contained

    in the Notice Inviting Tender. The objections now sought to be
    45

    relied upon by the petitioner were admittedly raised by certain

    other prospective bidders and not by the petitioner itself. The

    petitioner, therefore, cannot be permitted to derive advantage

    from objections raised by third parties after consciously abstaining

    from participating in the consultative process provided by the

    employer. Having elected not to avail the opportunity expressly

    made available under the tender process, the petitioner cannot

    subsequently contend that the rejection of objections raised by

    others furnishes an independent cause of action in its favour.

    45. Secondly, the pleadings themselves reveal that the petitioner

    accepted the tender conditions in their entirety, uploaded its bid,

    submitted all requisite documents and participated in the

    competitive bidding process without any contemporaneous

    protest. The challenge to Clause 1.3(b), Annexure XI and other

    eligibility conditions has acquired prominence only after the

    petitioner was declared technically disqualified. It is well settled

    that a bidder who consciously participates in a tender process

    with full knowledge of the terms and conditions governing the

    same cannot, after being declared unsuccessful, seek to

    invalidate those very conditions merely because the outcome has

    gone against him. Such conduct is clearly hit by the principle that

    a party cannot approbate and reprobate simultaneously. The

    petitioner cannot be permitted to accept the tender conditions

    when they suit its commercial interest and thereafter question

    their validity only upon suffering an adverse consequence.
    46

    46. Thirdly, insofar as the challenge relating to respondent No.5 is

    concerned, we find that the petitioner seeks to invite this Court to

    undertake a detailed factual examination regarding the experience

    certificates submitted by respondent No.5 and the effect of the

    Joint Venture through which the previous work was executed.

    However, Clause 3.8(a) of the tender merely stipulates that Joint

    Venture is not permissible for participation in the present

    tender. The said clause regulates the manner in which bids are to

    be submitted in the present procurement process. Whether the

    previous experience relied upon by a bidder satisfies Clause 4.1(i)

    or 4.1(ii) is essentially a matter falling within the domain of the

    Tender Evaluation Committee, which consists of technical experts

    entrusted with examining the documents submitted by the

    bidders. Unless the decision of such expert body is demonstrated

    to be ex facie perverse, arbitrary or contrary to the express

    language of the tender conditions, this Court would not substitute

    its own interpretation in exercise of judicial review under Article

    226 of the Constitution of India. We find no such perversity

    established in the present case.

    47. Fourthly, we also find considerable substance in the submission

    advanced on behalf of the respondents that the petitioner has not

    laid the requisite foundational pleadings to sustain several of the

    allegations sought to be urged during the course of arguments.

    Serious allegations of mala fides, favouritism, tailoring of tender

    conditions and collusion between the official respondents and
    47

    respondent No.5 have been advanced. However, except making

    broad and general averments, the writ petition neither discloses

    the material particulars constituting such allegations nor impleads

    any individual officer against whom mala fides are specifically

    attributed. It is trite that allegations of mala fides cannot be

    founded upon suspicion, conjectures or surmises and must be

    supported by clear pleadings and cogent material. In the absence

    of such foundational facts, this Court cannot embark upon an

    enquiry into disputed allegations of favouritism or collusion.

    48. We also cannot lose sight of the fact that the petitioner has not

    challenged several mandatory stipulations contained in the tender

    document, including the cautionary provisions contained in

    Clause 4, Clause 12, Clause 5.0, the requirements prescribed for

    Envelope ‘B’, or the stipulation requiring complete furnishing of

    information in Annexures I to XII in the prescribed format. The

    petitioner has confined its challenge principally to Clause 1.3(b)

    while simultaneously seeking a declaration that its deviation from

    the prescribed format of Annexure XI ought to have been

    accepted on the basis of its own interpretation of Annexure X.

    Such a course is wholly impermissible. The tender conditions

    constitute an integrated code and cannot be dissected or

    selectively applied at the instance of an individual bidder. A bidder

    is required either to comply with the tender conditions as framed

    by the employer or challenge them before participating in the

    process. It is not open to a bidder to rewrite the prescribed
    48

    formats, substitute its own declarations, interpret the eligibility

    conditions according to its convenience and thereafter seek

    judicial approval of such deviations.

    49. It is equally significant that the petitioner seeks, in substance, a

    direction from this Court to evaluate its eligibility by ignoring

    Clause 1.3(b), treating Clause 1.3(a) as an alternative condition,

    overlooking the deviation in Annexure XI, and simultaneously

    disqualifying respondent No.5 by re-appreciating the technical

    evaluation undertaken by the Tender Evaluation Committee.

    Granting such relief would necessarily require this Court to rewrite

    the tender conditions, re-evaluate technical documents, reassess

    the experience certificates submitted by competing bidders and

    substitute the commercial and technical assessment of the expert

    authority with its own opinion. Such an exercise is plainly beyond

    the permissible limits of judicial review consistently delineated by

    the Hon’ble Supreme Court in matters of public procurement.

    50. Having bestowed our anxious consideration to the rival

    submissions advanced at the Bar, having carefully examined the

    pleadings, the tender documents, the records produced by the

    parties and the settled principles governing judicial review in

    contractual matters, we are of the considered opinion that the

    petitioner has failed to make out any case warranting interference

    under Article 226 of the Constitution of India. The petitioner has

    been unable to demonstrate that the decision-making process
    49

    adopted by the respondent authorities suffers from arbitrariness,

    irrationality, mala fides, procedural impropriety or violation of any

    statutory or constitutional mandate. The challenge raised by the

    petitioner is, in substance, an invitation to this Court to rewrite the

    eligibility conditions of the tender by treating Clause 1.3(a) as an

    alternative to Clause 1.3(b), to ignore the mandatory requirement

    of furnishing Annexure XI in the prescribed format despite the

    express stipulations contained in Clause 4, Clause 12 and Clause

    5.0 of the tender document, and to substitute the interpretation

    placed by the Tender Evaluation Committee with the interpretation

    suggested by the petitioner. Such an exercise is wholly

    impermissible in the limited scope of judicial review available in

    matters relating to public procurement.

    51. The record further reveals that the petitioner consciously

    participated in the tender process after accepting all the terms and

    conditions of the Notice Inviting Tender without any

    contemporaneous protest. Admittedly, the petitioner neither

    participated in the Pre-Bid Conference held on 01.06.2026 nor

    raised any objection before the Tender Inviting Authority regarding

    the impugned clauses. The petitioner now seeks to rely upon

    objections allegedly raised by other prospective bidders and

    attempts to derive advantage therefrom after having suffered

    disqualification in the technical evaluation. Such conduct cannot

    be countenanced in law. Equally, the petitioner admittedly altered

    the prescribed format of Annexure XI on its own understanding of
    50

    Annexure X, though the tender document unequivocally required

    submission of the affidavit in the prescribed format and expressly

    cautioned that deviation from the prescribed format could result in

    summary disqualification. It was not open to the petitioner to

    modify the prescribed declaration according to its own

    interpretation and thereafter contend that such deviation ought to

    have been accepted by the Tender Evaluation Committee.

    52. The challenge to the eligibility of respondent No.5 also does not

    persuade us to exercise our extraordinary jurisdiction. Clause

    3.8(a) merely prohibits participation through a Joint Venture in the

    present tender. The question whether the experience certificates

    produced by respondent No.5 satisfied the requirements

    contained in Clause 4.1(i) or Clause 4.1(ii) was examined by the

    expert Tender Evaluation Committee, which found respondent

    No.5 to be technically qualified. In the absence of any

    demonstrable perversity, patent illegality or violation of the

    express provisions of the tender document, this Court would not

    sit in appeal over the technical assessment made by the expert

    committee. Significantly, the petitioner has also failed to lay the

    necessary foundational pleadings or produce cogent material to

    substantiate the serious allegations of mala fides, favouritism,

    tailoring of tender conditions or collusion levelled against the

    respondents. Mere suspicion, however strong, cannot take the

    place of legal proof.

    51

    53. Viewed from any angle, the grievance projected by the petitioner

    essentially questions the commercial wisdom of the employer in

    prescribing eligibility criteria and seeks judicial substitution of the

    employer’s decision by that of the Court. Such a course is

    expressly impermissible in view of the consistent line of

    authorities rendered by the Hon’ble Supreme Court in

    Banshidhar Construction Pvt. Ltd. (supra), wherein while

    dealing with Tata Cellular, Michigan Rubber, Afcons

    Infrastructure, Silppi Constructions, National High Speed

    Rail Corporation and N.G. Projects Ltd. (supra), it has

    repeatedly been held that the author of the tender document is the

    best judge of its requirements and that constitutional courts ought

    not to interfere unless the decision-making process is shown to be

    arbitrary, discriminatory, actuated by mala fides or so irrational

    that no reasonable authority could have arrived at such a

    decision. None of these exceptional circumstances exist in the

    present case. Acceptance of the petitioner’s contentions would

    necessarily entail rewriting the tender conditions, relaxing

    mandatory eligibility requirements in favour of one bidder, re-

    evaluating the technical bids of competing bidders and

    substituting the commercial and technical assessment of the

    expert Tender Evaluation Committee with the opinion of this

    Court, which is wholly beyond the permissible contours of judicial

    review under Article 226 of the Constitution.

    54. For all the aforesaid reasons, we do not find any merit in the
    52

    present writ petition. The same is, accordingly, dismissed.

    55. As a consequence thereof, all interlocutory applications, if any,

    also stand disposed of.

    56. There shall be no order as to costs.

                           Sd/-                                    Sd/-
                (Ravindra Kumar Agrawal)                     (Ramesh Sinha)
                         Judge                                 Chief Justice
    Anu
                                           53
    
                                     Head-Note
    
    
    

    The Tender Inviting Authority is the best judge of its commercial
    requirements and the eligibility criteria governing the tender process.
    Judicial review under Article 226 is confined to examining the legality of
    the decision-making process and not the merits of the commercial
    decision. Interference is warranted only where the tender conditions or
    the decision-making process are shown to be arbitrary, irrational,
    discriminatory, mala fide or violative of Article 14 of the Constitution;
    mere disagreement with the commercial wisdom of the employer or the
    prescribed eligibility criteria is no ground for judicial interference.



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