Orissa High Court
Rakesh Panda vs State Of Odisha And Others …. Opposite … on 20 May, 2026
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No. 7003 of 2026
Rakesh Panda .... Petitioner
-Versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in this case:
For Petitioner : Mr. Prafulla Kumar Rath,
Sr. Advocate assisted by
Mr. Saibrata Rath, Advocate
For Opposite Parties : Ms. Aishwarya Dash,
Addl. Standing Counsel
CORAM:
HON' BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
———————————————————————————-
Date of Judgment: 20th May, 2026
———————————————————————————-
HARISH TANDON, CJ.
1. The dispute raised in the instant writ petition is within the
limited compass, more particularly on the mathematical calculation
on the basis of a formula given in the tender document relating to
W.P.(C) No.7003 of 2026 Page 1 of 14
bid capacity. Both the petitioner as well as the State has submitted
the calculation on the basis of such formula which is at variance.
There is no dispute to the applicability of the formula provided in
the said tender document for ascertaining the bid capacity and,
therefore, the instant writ petition can be decided on the basis of the
undisputed facts discerned from the record.
2. In order to address the issue as stated hereinabove, the facts
which led the foundation of the genesis thereof is adumbrated
hereinafter.
3. The petitioner is an „A‟ Class Contractor registered with
Public Works Department, Government of Odisha and participated
in the tender pursuant to Tender Call Notice vie e-procurement
notice No. 3781 dated 23.10.2025 for 33 road works in the district
of Balasore and Bhadrak. At the time of floating the Tender Call
Notice, the last date of submission of the bid was fixed to 15 th
November 2025, but subsequently by 1st corrigendum dated 4th
November, 2025 the same was extended up to 24th November, 2025
and was further extended by 2nd corrigendum dated 21st November,
2025 up to 8th December, 2025. The petitioner along with opposite
party no.7 submitted the bid within the said extended time and
W.P.(C) No.7003 of 2026 Page 2 of 14
technical bid was opened on 9th December, 2025. The tender
summary report and technical evaluation summary dated 7 th
February, 2026 reveals that 7 bidders including the petitioner and
opposite party no.7 were found technically qualified and the
financial bid was opened on 12th February, 2026 and opposite party
no.7 was declared as L1 by quoting 14.99 % less than the estimated
cost. The petitioner subsequently came to know that bid capacity of
opposite party no.7 has been wrongly calculated by applying the
formula and, therefore, challenged the declaration of opposite party
no.7 as L1.
4. Clause- 2.1 (7) of the General Instructions to Tenderers
contained the exhaustive mechanism in ascertaining the bid
capacity of each intending bidder on the basis of a formula
provided therein. In order to avoid any ambiguity, the said Clause
is quoted as under:
“2.1 (7) Bid Capacity (As per Works Department L.No 6300
Dtd 16.6.2011. Bid capacity clause as qualification criteria has
been included). These stipulations shall apply to all works
above Rs 3.00 Crores)
Applicants who meet the minimum qualification criteria will
be qualified only if their available bid capacity at the
expected time of bidding is more than the total estimated
cost of the works. The available bid capacity will be
calculated as under:
Assessed Available Bid Capacity= (A*N*2-B) where
W.P.(C) No.7003 of 2026 Page 3 of 14
A= Maximum value of Civil Engineering works executed in
any one year during the last five years (updated to the
current price level) rate of inflation may be taken as 10
percent per year (escalation factor) which will make in to
account the completed as well as works in progress.
B= Value of current price level of the existing commitments
& ongoing works to be completed during the next years
(period of completion of works for which bids are invited).
The information for the value of B need to be furnished in
Format -II.
N= Number of years prescribed for completion of the works
for which the bids are invited. (For work completion period
less than one year the value may be taken as one year)The statement showing the value of existing commitments & on-
going works as well as stipulated period of completion
remaining for each of the works listed should be duly signed by
the bidders only.”
5. The entire stand of the petitioner in relation to the
aforementioned Clause is vividly and explicitly pleaded in
paragraphs-8 to 11 of the writ petition. It is the specific stand of the
petitioner that said opposite party no.7 disclosed the existing
ongoing works valued at Rs.210.00 Lakhs which in fact has been
taken by the authority while ascertaining the bid capacity.
According to the petitioner, the opposite party no.7 was further
awarded contracts for an amount of Rs. 3,48,38,115/- and the letter
of acceptance was issued on 17th January, 2026 and for
Rs.7,00,39,847 on the basis of the letter of acceptance dated 7th
February, 2026 and, therefore, the authorities while evaluating the
W.P.(C) No.7003 of 2026 Page 4 of 14
bids at the technical bid stage ought to have taken into
consideration the same and if those figures are taken into account, it
would bring a negative bid capacity of the opposite party no.7,
which is not in conformity with Clause 2.1 (7) of the Detailed
Tender Call Notice.
6. On the other hand, the State has taken a stand that the
authorities have correctly calculated the bid capacity on the basis of
the formula provided in the said clause and found the bid capacity
higher than the required bid capacity in relation to the work
awarded to opposite party no.7
7. Before we proceed on such factual matrix, the law relating
to interference by the Writ Court in relation to a government
contract or a tender matter is required to be recapitulated.
8. In Vidarbha Irrigation Development Corporation and
others v Anoj Kumar Agarwala and others, reported in (2020) 17
SCC 577 the apex Court reiterated and restated the principles that
the author of the tender document is the best person to give a
meaning to the expressions or words used therein in the following:
W.P.(C) No.7003 of 2026 Page 5 of 14
“15. However, the learned counsel appearing on behalf of the
appellant strongly relied upon Afcons Infrastructure
Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure
Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] ,
and paras 14 and 15 in particular, which state: (SCC p. 825)
“14. We must reiterate the words of caution that this
Court has stated right from the time when Ramana Dayaram
Shetty v. International Airport Authority of India [Ramana
Dayaram Shetty v. International Airport Authority of India,
(1979) 3 SCC 489] was decided almost 40 years ago, namely,
that the words used in the tender documents cannot be
ignored or treated as redundant or superfluous — they must
be given meaning and their necessary significance. In this
context, the use of the word “metro” in Clause 4.2(a) of
Section III of the bid documents and its connotation in
ordinary parlance cannot be overlooked.
15. We may add that the owner or the employer of a
project, having authored the tender documents, is the best
person to understand and appreciate its requirements and
interpret its documents. The constitutional courts must defer
to this understanding and appreciation of the tender
documents, unless there is mala fide or perversity in the
understanding or appreciation or in the application of the
terms of the tender conditions. It is possible that the owner
or employer of a project may give an interpretation to the
tender documents that is not acceptable to the constitutional
courts but that by itself is not a reason for interfering with
the interpretation given.”
It is further held therein that the moment the essential conditions
are incorporated in the tender document, those should be given
credence and its strict compliance should be ensured by the
tendering authority in the following:
“16. It is clear even on a reading of this judgment that the
words used in the tender document cannot be ignored or treated
as redundant or superfluous–they must be given meaning and
their necessary significance. Given the fact that in the present
case, an essential tender condition which had to be strictly
complied with was not so complied with, the appellant wouldW.P.(C) No.7003 of 2026 Page 6 of 14
have no power to condone lack of such strict compliance. Any
such condonation, as has been done in the present case, would
amount to perversity in the understanding or appreciation of the
terms of the tender conditions, which must be interfered with by
a constitutional court.”
9. In Agmatel India Private Limited v. Resoursys Telecom
and others, reported in (2022) 5 SCC 362, the apex Court had an
occasion to consider the scope of judicial review in contract
matters, more particularly in relation to the interpretation of tender
document and held that the authority who has drafted or is the
author of the tender document is the most suited person to
understand and appreciate the meaning of the “words” and
“expressions” as well as “clauses” incorporated therein, in
juxtaposition with the object sought to be achieved and the Court
should not ordinarily interfere in this regard. Even if the Court finds
that the interpretation given by the maker of the tender document is
not acceptable that itself cannot be a ground to discard the same, in
the following:
“25. This Court referred to various decisions on the subject
and stated the legal principles as follows : (Galaxy Transport
Agencies case [Galaxy Transport Agencies v. New J.K.
Roadways, Fleet Owners & Transport Contractors, (2021) 16
SCC 808 : 2020 SCC OnLine SC 1035] , SCC paras 14-20)
“14. In a series of judgments, this Court has held that the
authority that authors the tender document is the best person
to understand and appreciate its requirements, and thus, its
interpretation should not be second-guessed by a court in
judicial review proceedings. In Afcons InfrastructureW.P.(C) No.7003 of 2026 Page 7 of 14
Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure
Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] ,
this Court held : (SCC p. 825, para 15)
„15. We may add that the owner or the employer of a
project, having authored the tender documents, is the best
person to understand and appreciate its requirements and
interpret its documents. The constitutional courts must defer to
this understanding and appreciation of the tender documents,
unless there is mala fide or perversity in the understanding or
appreciation or in the application of the terms of the tender
conditions. It is possible that the owner or employer of a
project may give an interpretation to the tender documents that
is not acceptable to the constitutional courts but that by itself is
not a reason for interfering with the interpretation given.‟
15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev
Prabha [Bharat Coking Coal Ltd. v. AMR Dev Prabha, (2020)
16 SCC 759] , under the heading “Deference to authority’s
interpretation”, this Court stated : (SCC p. 776, paras 50-52)
„50. Lastly, we deem it necessary to deal with another
fundamental problem. It is obvious that Respondent 1 seeks to
only enforce terms of NIT. Inherent in such exercise is
interpretation of contractual terms. However, it must be noted
that judicial interpretation of contracts in the sphere of
commerce stands on a distinct footing than while interpreting
statutes.
51. In the present facts, it is clear that BCCL and C1-India
have laid recourse to clauses of NIT, whether it be to justify
condonation of delay of Respondent 6 in submitting
performance bank guarantees or their decision to resume auction
on grounds of technical failure. BCCL having authored these
documents, is better placed to appreciate their requirements and
interpret them. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corpn. Ltd., (2016) 16 SCC 818]
52. The High Court ought to have deferred to this
understanding, unless it was patently perverse or mala fide.
Given how BCCL’s interpretation of these clauses was plausible
and not absurd, solely differences in opinion of contractual
interpretation ought not to have been grounds for the High Court
to come to a finding that the appellant committed illegality.‟
16. Further, in the recent judgment in Silppi Constructions
Contractors v. Union of India [Silppi Constructions
Contractors v. Union of India, (2020) 16 SCC 489] , this Court
held as follows : (SCC pp. 501-02, para 20)
„20. The essence of the law laid down in the judgments
referred to above is the exercise of restraint and caution; the
need for overwhelming public interest to justify judicialW.P.(C) No.7003 of 2026 Page 8 of 14
intervention in matters of contract involving the state
instrumentalities; the courts should give way to the opinion of
the experts unless the decision is totally arbitrary or
unreasonable; the court does not sit like a court of appeal over
the appropriate authority; the court must realise that the
authority floating the tender is the best judge of its requirements
and, therefore, the court’s interference should be minimal. The
authority which floats the contract or tender, and has authored
the tender documents is the best judge as to how the documents
have to be interpreted. If two interpretations are possible then
the interpretation of the author must be accepted. The courts
will only interfere to prevent arbitrariness, irrationality, bias,
mala fides or perversity. With this approach in mind we shall
deal with the present case.‟
17. In accordance with these judgments and noting that the
interpretation of the tendering authority in this case cannot be
said to be a perverse one, the Division Bench ought not to have
interfered with it by giving its own interpretation and not giving
proper credence to the word “both” appearing in Condition No.
31 of the NIT For this reason, the Division Bench’s conclusion
[New JK Roadways v. State (UT of J&K), 2020 SCC OnLine
J&K 733] that JK Roadways was wrongly declared to be
ineligible, is set aside.
18. Insofar as Condition No. 27 of the NIT prescribing work
experience of at least 5 years of not less than the value of Rs 2
crores is concerned, suffice it to say that the expert body, being
the Tender Opening Committee, consisting of four members,
clearly found that this eligibility condition had been satisfied by
the appellant before us. Without therefore going into the
assessment of the documents that have been supplied to this
Court, it is well settled that unless arbitrariness or mala fide on
the part of the tendering authority is alleged, the expert
evaluation of a particular tender, particularly when it comes to
technical evaluation, is not to be second-guessed by a writ
court. Thus, in Jagdish Mandal v. State of Orissa [Jagdish
Mandal v. State of Orissa, (2007) 14 SCC 517] , this Court
noted : (SCC pp. 531-32, para 22)
„22. Judicial review of administrative action is intended to
prevent arbitrariness, irrationality, unreasonableness, bias and
mala fides. Its purpose is to check whether choice or decision is
made “lawfully” and not to check whether choice or decision is
“sound”. When the power of judicial review is invoked in
matters relating to tenders or award of contracts, certain special
features should be borne in mind. A contract is a commercial
transaction. Evaluating tenders and awarding contracts are
essentially commercial functions. Principles of equity and
natural justice stay at a distance. If the decision relating toW.P.(C) No.7003 of 2026 Page 9 of 14
award of contract is bona fide and is in public interest, courts
will not, in exercise of power of judicial review, interfere even if
a procedural aberration or error in assessment or prejudice to a
tenderer, is made out. The power of judicial review will not be
permitted to be invoked to protect private interest at the cost of
public interest, or to decide contractual disputes. The tenderer
or contractor with a grievance can always seek damages in a
civil court. Attempts by unsuccessful tenderers with imaginary
grievances, wounded pride and business rivalry, to make
mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade courts to
interfere by exercising power of judicial review, should be
resisted. Such interferences, either interim or final, may hold up
public works for years, or delay relief and succour to thousands
and millions and may increase the project cost manifold.
Therefore, a court before interfering in tender or contractual
matters in exercise of power of judicial review, should pose to
itself the following questions:
(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.‟
19. Similarly, in Montecarlo Ltd. v. NTPC Ltd. [Montecarlo
Ltd. v. NTPC Ltd., (2016) 15 SCC 272] , this Court stated as
follows : (SCC p. 288, para 26)
„26. We respectfully concur with the aforesaid statement of
law. We have reasons to do so. In the present scenario, tenders
are floated and offers are invited for highly complex technical
subjects. It requires understanding and appreciation of the nature
of work and the purpose it is going to serve. It is common
knowledge in the competitive commercial field that technical
bids pursuant to the notice inviting tenders are scrutinised by the
technical experts and sometimes third-party assistance from
those unconnected with the owner’s organisation is taken. This
ensures objectivity. Bidder’s expertise and technical capability
and capacity must be assessed by the experts. In the matters of
W.P.(C) No.7003 of 2026 Page 10 of 14
financial assessment, consultants are appointed. It is because to
check and ascertain that technical ability and the financial
feasibility have sanguinity and are workable and realistic. There
is a multi-prong complex approach; highly technical in nature.
The tenders where public largesse is put to auction stand on a
different compartment. Tender with which we are concerned, is
not comparable to any scheme for allotment. This arena which
we have referred requires technical expertise. Parameters
applied are different. Its aim is to achieve high degree of
perfection in execution and adherence to the time schedule. But,
that does not mean, these tenders will escape scrutiny of judicial
review. Exercise of power of judicial review would be called for
if the approach is arbitrary or mala fide or procedure adopted is
meant to favour one. The decision-making process should
clearly show that the said maladies are kept at bay. But where a
decision is taken that is manifestly in consonance with the
language of the tender document or subserves the purpose for
which the tender is floated, the Court should follow the
principle of restraint. Technical evaluation or comparison by
the Court would be impermissible. The principle that is applied
to scan and understand an ordinary instrument relatable to
contract in other spheres has to be treated differently than
interpreting and appreciating tender documents relating to
technical works and projects requiring special skills. The owner
should be allowed to carry out the purpose and there has to be
allowance of free play in the joints.‟
20. This being the case, we are unable to fathom how the
Division Bench, on its own appraisal, arrived at the conclusion
that the appellant held work experience of only 1 year,
substituting the appraisal of the expert four-member Tender
Opening Committee with its own.”
(italicised matter emphasised in the original;
emphasis in bold italics supplied)
10. In Vedika Resources v. National Aluminium Company
Ltd. reported in 2025 SCC OnLine Ori 4148, this Bench had an
occasion to consider the similar aspect when the parties were at
variance in interpreting the words used in the tender document. It
was held that every words and expressions which are used in the
W.P.(C) No.7003 of 2026 Page 11 of 14
tender document carries a meaning and/or significance as the author
shall not use any words or expressions which are either redundant
or surplusage and, therefore, the interference by the Writ Court is
minimal.
11. The law enunciated in the above reports have laid down a
uniform principle relating to the interpretation of the tender
document to the effect that the Court must accept the interpretation
given by the draftsman/author of the said tender document to the
words and the expressions used therein if they do not frustrate the
purpose for which the tender is floated. The writ Court should not
substitute its own interpretation unless the interpretation given by
the author of the tender document is unreasonable, irrationally and
beyond comprehension in the ordinary circumstances. The Writ
Court should be slow and circumspect in interfering on the premise
of giving a meaning to a tender document if those appears to be
clear and unambiguous and used to subserve the purpose for which
the tender is floated.
12. Reverting to the merit of the said case, the said clause 2.1
(7) relating to a bid capacity, appears to have been understood by
the petitioner and the State authorities in the different manner. The
W.P.(C) No.7003 of 2026 Page 12 of 14
dispute, in effect, hovers around the value to be given to “Be”,
which is relatable to the existing commitments & on-going works
to be completed during the next year. The petitioner has taken into
account even the works subsequently awarded and/or allotted to the
opposite party no.7 after the last date of submission of the bid,
whereas the authorities have taken the value of the existing work as
disclosed by opposite party no.7 in its bid document. The
contention of the petitioner is unacceptable for the reason that the
said clause mandates the bid capacity to be ascertained at the
expected time of bidding. It further postulates that the said bid
capacity must be more than the total estimated cost of the work.
The expressions “available bid capacity at the expected time of
bidding” has to be understood as the capacity of a bidder as on the
last date of submission of the bid. If any work awarded subsequent
to the last date of submission of the bid is taken into consideration,
it would frustrate the purpose of an expression “expected time of
bidding”. The intending contractors bids on or before the last date
of the submission and, therefore, the capacity has to be evaluated
on the said date and not the date posterior thereto.
W.P.(C) No.7003 of 2026 Page 13 of 14
13. The opposite party no.7 was awarded a work valued at Rs.
7,00,39,847/- on 7th February, 2026 and Rs.3,48,38,115/- on 17th
January, 2026, much after the last date of submission of the bid
and, therefore, the contention of the petitioner with regard to
inclusion of the said work as an ongoing work by the petitioner is
unacceptable and, therefore, the relief claimed in the instant writ
petition cannot be granted. Accordingly the writ petition sans merit
and the same is, therefore, dismissed.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Arun Mishra
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 20-May-2026 19:01:26
W.P.(C) No.7003 of 2026 Page 14 of 14
