Chattisgarh High Court
M/S Offshore Infrastructures Limited vs State Of Chhattisgarh on 4 August, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
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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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
4pleased 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
5Cell), 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
9
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.
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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
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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
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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
34this 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
36administrative 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
38dealing 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
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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
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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
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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
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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.
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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
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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
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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.
