Gauhati High Court
Page No.# 1/62 vs Union Of India And 2 Ors on 18 February, 2026
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/62
GAHC010255522025
2026:GAU-AS:2443
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6625/2025
SPS CONSTRUCTION INDIA PVT. LTD.
THROUGH ITS AUTHORIZED REPRESENTATIVE MR MADHAV SINGLA
HAVING REGISTERED OFFICE AT 1006 1007 10TH FLOOR PEARLS BEST
HEIGHT 1 NETAJI SUBHASH PLACE PITAMPURA NEW DELHI 110034
VERSUS
UNION OF INDIA AND 2 ORS
THROUGH MINISTRY OF RAILWAYS HAVING ITS OFFICE AT 156 A RAISINA
ROAD RAJPATH AREA CENTRAL SECRETARIAT NEW DELHI 110001
2:NORTHEAST FRONTIER RAILWAY
THROUGH CHIEF ENGINEER HAVING ITS OFFICE AT CONSTRUCTION
OFFICE MALIGAON GUWAHATI 781011
3:LARSEN AND TOUBRO LIMITED
HAVING ITS OFFICE AT 8TH FLOOR VATIKA MINDSCAPE BUILDING
DELHI MATHURA ROAD FARIDABAD 12100
Advocate for the Petitioner : MR. K N CHOUDHURY, MR. TANUZ KASHYAP,N GAUTAM
Advocate for the Respondent : DY.S.G.I., MS M KAKOTY (R-3),R SARMAH(R-3)
Linked Case : WP(C)/5051/2025
SPS CONSTRUCTION INDIA PRIVATE LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE MR. MADHAV SINGLA
AGE 30 YEARS.
HAVING REGISTERED OFFICE AT 1006-1007
10TH FLOOR
PEARIS BEST HEIGHT-1
Page No.# 2/62
PITAMPURA
NEW DELHI-110034
VERSUS
UNION OF INDIA AND ANR
THROUGH MINISTRY OF RAILWAYS HAVING ITS OFFICE AT 256 A
RAISINA ROAD
RAJPATH AREA CENTRAL SECRETARIAT
NEW DELHI-110001
2:NORTHEAST FRONTIER RAILWAY
THROUGH CHIEF ENGINEER HAVING ITS OFFICE AT CONSTRUCTION
OFFICE MALIGAON
GUWAHATI-781011.
------------
BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH For the Petitioner(s) : Mr. K. N. Choudhury, Sr. Advocate : Mr. A. Mittal, Advocate : Mr. V. Pahuja, Advocate : Mr. T. Kashyap, Advocate For the Respondent(s) : Mr. D. Das, Sr. Advocate : Mr. K. Gogoi, CGC : Ms. M. Khanna, Advocate : Mr. R. Sarma, Advocate · Date on which Judgment was reserved : 10.02.2026 · Date of Pronouncement of Judgment : 18.02.2026 · Whether the pronouncement is of the Operative Part of the Judgment : N/A · Whether the full Judgment has been Pronounced : Yes Page No.# 3/62 JUDGMENT AND ORDER (CAV) Heard Mr. K. N. Choudhury, the learned Senior counsel assisted by Mr. A. Mittal and Mr. V. Pahuja, the learned counsels appearing on behalf of the Petitioner in both the writ petition. I have also heard Mr. K. Gogoi, the learned CGC who appears on behalf of the Respondent Authorities in both the writ petitions. Mr. D. Das, the learned Senior counsel assisted by Ms. M. Khanna and Mr. R. Sarma, the learned counsels appearing on behalf of the Respondent No.3 in WP(C) No.6625/2025.
PREFACE:
2. Both the writ petitions are inter related. In WP(C) No.5051/2025, the Petitioner have assailed Clause 2.2.2.4.iii.ii.2 contained in the Request For Proposal (for short 'RFP') issued by the Respondent Authorities and in the alternative have sought for declaration that Clause 2.2.2.4.iii.ii.2 in the RFP did not disqualify such bidders who may have experienced history of any collapse in respect of any of the projects in the last 3 years on account of force majeure conditions and/or for not determined and adjudicated fault of theirs. Declaration was also sought for that the Petitioner is not disqualified under the terms of the Clause
2.2.2.4.iii.ii.2 in the RFP on account of the Sultanganj incident. The Page No.# 4/62 Petitioner has also sought for a writ in the nature of Mandamus to quash the rejection by the Respondents, the bid of the Petitioner in respect of the RFP dated 19.05.2025, if done during the pendency of the writ petition on the basis of the impugned Clause 2.2.2.4.iii.ii.2 as well as also to quash any action(s) or steps undertaken by the Respondents during the pendency of the writ petition to further the tendering process arising out of the RFP dated 19.05.2025 without considering the bid of the Petitioner and restore status quo ante.
3. The Petitioner in the interim also sought for certain directions i.e. stay the effect, implementation and operation of Clause 2.2.2.4.iii.ii.2 in the RFP dated 19.05.2025 and directions be issued upon the Respondents to consider the bid submitted by the Petitioner in pursuance to the RFP dated 19.05.2025 on its own merits and not to consider the Sultanganj incident as a reason for disqualification of the petitioner from the said tender. The Petitioner also sought for interim directions that the Respondents be restrained from taking any action to further the tender process in respect of the RFP dated 19.05.2025 without considering the bid of the Petitioner.
4. It is pertinent to take note of that while the writ petition i.e. Page No.# 5/62 WP(C) No.5051/2025 was pending, the Petitioner learnt that its technical bid was rejected on 28.10.2025 as non-responsive in terms with Clause 2.2.2.2 and Clause 2.2.2.4.iii.ii.2 of the RFP. The Petitioner being aggrieved preferred a writ petition before this Court which was registered and numbered as WP(C) No.6274/2025. When the said writ petition was moved before this Court on 07.11.2025 with the records of WP(C) No.5051/2025, it was informed by the learned counsel for the Respondents that the Letter of Acceptance had already been issued in favour of the Respondent No.3 in WP(C) No.6625/2025 on 06.11.2025. The said writ petition being WP(C) No.6274/2025 was withdrawn and liberty was granted to the Petitioner to again assail the impugned actions which were the subject matter of WP(C) No.6274/2025 as well as the Letter of Acceptance dated 06.11.2025. It is under such circumstances WP(C) No.6625/2025 was filed seeking appropriate directions for quashing the decision of the Respondent dated 28.10.2025 i.e. the date when the Petitioner's Technical Bid was rejected as well as the Letter of Acceptance dated 06.11.2025 issued to the Respondent No.3. The Petitioner had also sought for directions to the effect that the Respondents be directed to reevaluate the financial bids of the qualified bidders along with the financial bid of the Petitioner.
Page No.# 6/62 BRIEF FACTS OF THE INSTANT CASE:
5. A Request for Proposal (RFP) was issued by the Respondent Authorities for Engineering, Procurement and Construction (EPC) Mode of the 2nd rail cum road bridge over river Brahmaputra including viaduct, retaining walls, embankment and minor bridges including track work, OHE work, signaling and telecom work, commissioning of stations and general work between Agthori and Kamakhya Station from km 393.980 to km 401.120. The said tender notice was issued on 19.05.2025. It is pertinent to take note of that in the RFP dated 19.05.2025, various terms and conditions were mentioned. Relevant herein is to take Note of Section 2 of the RFP which is with the heading "INSTRUCTIONS TO BIDDERS". Clause 2.2 of Section 2 of the RFP stipulates about the Eligibility and Qualification requirements of the Bidders. Clause 2.2.2.4 of Section 2 of the RFP is with the heading "Categories and factors for evaluation of Technical Capacity". Further to that, at Clause (iii) of Clause 2.2.2.4 of Section 2 of the RFP, the Technical Capacity for the purpose of the RFP are stipulated.
Clause 2.2.2.4.iii.ii.2 being the focal point of the present dispute is reproduced below:
"2.2.2.4.iii.ii.2 There should not be history of collapse of Page No.# 7/62 superstructure/substructure of any span of a bridge/flyover/ via-duct/metro line work during construction/service in last 5 years, ending last day of month previous to the one in which tender is invited. Undertaking in this regard shall be submitted along with the bid."
6. A perusal of the above quoted Clause would show that for the purpose of applying under the RFP and adjudge the Technical Capacity, it was the requirement that there should not be history of collapse of Superstructure/Substructure of any span of a bridge/flyover/ via-duct/metro line work during construction/service in last 5 years, ending the last day of month previous to the one in which tender is invited. It is also the requirement that an Undertaking in that regard has to be submitted along with the bid.
7. It appears from the materials on record that various bidders, including the Petitioner submitted representations in respect to various Clauses of the RFP including Clause 2.2.2.4.iii.ii.2. It is of importance to take note of the representation submitted by the Petitioner on 31.05.2025 which forms a part of Annexure-13 (Colly) to WP(C) No.5051/2025. At paragraph No.5 of the said representation, the Petitioner had categorically mentioned that it has vast experience in design and construction of bridges, open to consider fail-safe design and construction. It was also mentioned Page No.# 8/62 that the Petitioner encountered unforeseeable accidental collapse of parts of few spans in respect to a bridge constructed in the State of Bihar. It was also mentioned that the cause of the collapse have not been detected. Paragraph No.5 of the said representation being relevant as would be noticed at a later stage of the present judgment is reproduced herein under:
"5. Notwithstanding the vast experience in the Design and Construction of the Bridges, open to consider fail-safe design and construction - we had encountered unforeseeable an accidental collapse of part of few spans in chain effect "C/o 2 x 2 Lane Bridge with footpath across River Ganga between Sultanganj (Bhagalpur District) and Aguwani Ghat (Khagaria District) including navigational span of cable stayed and approaches (Connecting NH-31 and NH-
80) in the State of Bihar on EPC mode". As on date, it has not been detected cause of collapse. Invariably every contract provides for the terms and conditions for such unforeseeable accidents, insurance and indemnification provisions within the Contract Agreements."
It was also mentioned in the said representation that the said Clause No.2.2.2.4.iii.ii.2 of the RFP is required to be deleted in the interest of the benefit of better competition; benefit of learning from accidents and make use of insight gained. Paragraph No.7 of the said Representation being also relevant is reproduced herein under:
"7. We consider, clause 2.2.2.4(iii)(ii)(2) reads as under require review and Page No.# 9/62 deletion in the interest of the benefits of better competition, benefit of learning from accidents, make use of the insight gained. Such like clauses are conflict of reasonableness. We humbly prays the Competent Authority may pleased to delete the following clause in the larger public interest and public exchequer. Such like clause never specified by the Government of India in earlier RFPS. We quote most recent invitation of RFP (NIT) by the East Central Railways "EPC for Construction of New BG Rail Bridge (1x32.086m Open Web Steel Girder + 33x122.0m Open Web Steel Girder + 1x32.086m Open Web Steel Girder) with Sub-structure of Double line Track and Superstructure of Single line Track across River Ganga between Bikramshila and Katareah Stations on New Railways Line Project of East Central Railways," opening of Technical Bids on 22.02.2025. There is no such like clause in the above work NIT. Such like clause fall within the meaning of anti-competitive agreement. Beside, disqualification of Bidder would have effect of prevent a party from the privilege of entering into lawful relationship with the Government without an opportunity of hearing and fair trial."
8. From the records and more particularly Annexure-13 (Colly), it appears that on 03.07.2025, the Petitioner requested the Honorable Member Infrastructure Railway Board for a meeting in view of two tenders being floated by two divisions of Indian Railways wherein additional conditions have been inserted which bars experienced and eligible contractors like the Petitioner from participating in the bidding process and restricting fair and healthy practice of competition. One of the tenders referred to in the said communication includes the present RFP.
Page No.# 10/62
9. The records also show that similar to the Petitioner, various other bidders also requested deletion or modification of Clause 2.2.2.4.iii.ii.2. A Pre Bid Meeting admittedly was held amongst the various bidders wherein the Petitioner participated. On the basis of the Pre Bid Meeting, clarifications were issued on 23.07.2025 in respect to various Clauses of the RFP dated 19.05.2025 including Clause 2.2.2.4.iii.ii.2. The Query as well as the remarks given qua Clause 2.2.2.4.iii.ii.2 of the RFP being relevant is reproduced herein under:
SN Description Query Remarks
22 Additional Deletion of above clause The Clarification has been
experience 2.2.2.4(iii)(ii)(2) or incorporated in revised
(history of modification as There should RFP. The Collapse of collapse) not be history of collapse of Superstructure superstructure/ substructure /Substructure pertain to of any span of a Design failure or quality bridge/flyover/via-duct/metro related failure of line work during permanent structure construction/service in last 2 would be considered in years/3 years, ending last this clause only.
day of month previous to the one in which tender is invited.
10. It therefore appears that though certain bidders like the Petitioner sought for deletion of Clause 2.2.2.4.iii.ii.2 of the RFP and certain bidders sought for modification, the Respondent Authorities decided to retain Clause 2.2.2.4.iii.ii.2. It was further Page No.# 11/62 clarified that the collapse of the Superstructure/Substructure on account of design failure or quality related failure of permanent structure would only be considered for the purpose of the said Clause.
11. On the basis of the clarifications given, which is Annexure-6 to WP(C) No.5051/2025, a revised RFP was issued on the 23.07.2025. Clause 2.2.2.4.iii.ii.2 of the RFP issued on 23.07.2025 reads as under:
"2.2.2.4.iii.ii.2 There should not be history of collapse of superstructure/substructure of any span of a bridge/flyover/ via-duct/metro line work during construction/service in last 3 (Three) years, ending last day of month previous to the one in which tender is invited. Undertaking in this regard shall be submitted along with the bid."
The above quoted Clause would show that Clause 2.2.2.4.iii.ii.2 was retained but the period of five years was reduced to three years.
12. It is further apposite to mention that in view of the revised RFP issued on 23.07.2025, the last date for submission of the financial and technical bid online was fixed on or before 27.08.2025 up to 14:30 hours and it was also mentioned that the bids received online shall be opened on the date as mentioned in the Kit in the Page No.# 12/62 Office of the General Manager/CON/MLG NF Railway Construction Organization.
13. The Petitioner admittedly did not submit any representation pursuant to the revised RFP. On the other hand, the Petitioner avers at Paragraph No.37 of WP(C) No.5051/2025 that on account of the given timelines for the submission of the bid, the Petitioner submitted its bid. No date has been mentioned when the Petitioner submitted the bid but taking into consideration the fact that Petitioner submitted the bid is mentioned in the writ petition, it has to be presumed that the writ petition was filed pursuant to the submission of the bid. Be that as it may, a perusal of the filing form mentions the date of filing to be 28.08.2025.
14. The record reveals that when the writ petition being WP(C) No.5051/2025 was taken up for consideration, the learned Coordinate Bench vide an order dated 01.09.2025 issued notice making it returnable on 08.09.2025 and passed an interim direction to the effect that as the Petitioner has already submitted its bid which is scheduled to be opened on 02.09.2025, the Respondents were directed to consider the bid of the Petitioner subject to further orders of this Court. The relevant portion of the order dated 01.09.2025 being pertinent to the issue is reproduced herein Page No.# 13/62 under:
"Considering that the petitioner has already submitted the bids, which is scheduled to be opened on 02.09.2025 and also considering that the challenge to terms of disqualification would require a detailed deliberation, which would be taken up on the next returnable date; in the interim, it is provided that the respondents shall consider the bids of the petitioner, subject to further order of this Court.
Since, the matter relates to tender for construction of Rail cum Road Bridge over river Brahmaputra; on or before the next date of listing, the respondents may file their affidavit, so that an attempt may be made to dispose of the matter.
List on 08.09.2025."
15. It further appears from the records that the Petitioner filed an application in WP(C) No.5051/2025 before this Court seeking certain urgent reliefs. The said application was registered and numbered as I.A.(Civil) No.3462/2025. In the said application, it was mentioned that on 28.10.2025, the Petitioner was shocked to learn that the Respondents in clear and blatant disregard to the order passed by this Court dated 01.09.2025 declared that the Petitioner's technical bid was non-responsive as per Clause 2.2.2.2 and Clause 2.2.2.4.iii.ii.2 of the RFP. The Petitioner came to learn this from the website of Indian Railways E-procurement system.
Page No.# 14/62 The Petitioner therefore sought for certain interim directions to the extent that the Respondents be restrained from taking any steps to further tendering process during the pendency of the writ petition including issuance of the letter of award, signing a contract or executing any other document in favour of the third party; restrain the Respondents from taking any steps which would create third party rights or interest in the said tender; stay the operation of the result of the evaluation of the bids for the said tender as released by the Respondents including the statement of the financial bids, etc.
16. The said application was filed on 30.10.2025 and the learned Coordinate Bench of this Court vide an order dated 31.10.2025 disposed of the said application without imposing any restraints upon the Respondents as prayed in the Interlocutory Application. Paragraph 15 and 16 of the order dated 31.10.2025 passed in I.A. (Civil) No.3462/2025are reproduced herein under:
"15. In view of all the above, this Court does not deem it appropriate to agree to impose restraints on the respondents as prayed for in the interlocutory application. It is however clarified that since this Court by order dated 1.9.2025 has already observed that the consideration of the bid of the petitioner would be subject to further orders to be passed by this Court, the finding of the respondents that the bid of the petitioner is nonresponsive would also be subject to further orders that may be passed in the writ petition.
Page No.# 15/62
16. Interlocutory application is accordingly disposed of. The observations made in this order are limited to the adjudication of the interlocutory application only and would not have affect on the final adjudication of the writ petition."
17. Pursuant to the order dated 31.10.2025 in I.A.(Civil) No.3462/2025, the Petitioner moved the second writ petition before this Court which was registered and numbered as WP(C) No.6274/2025 challenging the decision of the Respondent Authorities in rejecting the technical bid as non-responsive in view of Clause 2.2.2.2 as well as Clause 2.2.2.4.iii.ii.2 of the RFP.
18. The said writ petition i.e. WP(C) No.6274/2025 was taken up along with WP(C) No.5051/2025 on 07.11.2025. The learned Central Government Counsel appearing for the Respondent Authorities brought the attention of this Court that the Letter of Acceptance for the said RFP had already been issued in favour of the Respondent No.3 in WP(C) No.6625/2025. The said petition being WP(C) No.6274/2025 was accordingly withdrawn by the Petitioner with a liberty granted to the Petitioner to again assail the impugned actions which were the subject matter of WP(C) No.6274/2025 as well as the Letter of Acceptance. A copy of the Letter of Acceptance was also handed over during the course of the hearing on 07.11.2025 to the learned counsel who assisted Mr. Page No.# 16/62 K.N. Choudhury, the learned Senior counsel for the Petitioner during the course of the hearing. It is under such circumstances, the third writ petition was filed by the Petitioner which is WP(C) No.6625/2025.
19. It is pertinent to take note of that on 21.11.2025, when the writ petition was taken up, this Court issued notice. However, this Court was not inclined to pass any interim order at that stage. Be that as it may, this Court however observed that both the writ petition i.e. WP(C) No.5051/2025 and WP(C) No.6625/2025 were required to be disposed off as early as possible. This Court further observed that non-granting of interim directions as sought for by the Petitioner on 21.11.2025 shall not create any equitable interest in favour of the Respondent No.3.
20. The record reveals that the Respondent Nos. 1 and 2 had filed an affidavit-in-opposition on 08.12.2025 in WP(C) No.6625/2025 justifying the rejection of the Petitioner's technical bid. The Respondent No.3 also filed an affidavit-in-opposition on 04.12.2025 denying to the various allegations made by the Petitioner and also bringing forth the Letter of Acceptance which was issued on 06.11.2025.
Page No.# 17/62
21. On 17.12.2025, when both the writ petitions were taken up, after hearing the matter, the learned counsel appearing on behalf of the Petitioner sought for some more accommodation. Accordingly, this Court directed the matter to be listed on 06.01.2026 for final disposal. Thereupon, the matter was again listed before this Court on 21.01.2026 when at the request jointly made by the learned Counsels appearing on behalf of the parties, both the writ petitions were fixed on 10.02.2026 for final disposal.
22. At this stage, it is very pertinent to take note of the stand taken by the Respondent Authorities in WP(C) No.6625/2025 assigning the reasons why the Petitioner's technical bid was rejected for non-compliance to Clause 2.2.2.2 as well as Clause 2.2.2.4.iii.ii.2 of the RFP. Insofar as the rejection of the Petitioner's technical bid in terms with Clause 2.2.2.2 of the RFP, it was mentioned that the Clauses to be considered for financial capacity of the bidder in the RFP are clauses 2.2.2.2, 2.2.2.8(i), 2.2.2.7(iii) of the RFP and Serial No.4 of the instruction of the RFP i.e. "Year 1 will be the latest completed Financial Year preceding the bidding. Year 2 shall be the year immediately proceeding Year 1 and so on. In case, the Bid due date falls within 3 (three) months of the close of the latest Financial Year, refer to Clause 2.1.13."
Page No.# 18/62 Referring to Clause 2.1.13 of the RFP, it was mentioned in the affidavit-in-opposition that as the bid due date was 27.08.2025, which does not lie within three months of the preceding financial year, the submission of the net worth of the year 2024-25 was mandatory. It was also mentioned that since the document of the latest concluded financial year was not submitted, the financial condition is not satisfied as per Clause 2.1.13 of the RFP. Insofar as the technical non-responsiveness of the Petitioner in terms with Clause 2.2.2.4.iii.ii.2 of the RFP, it was mentioned that the undertaking to be submitted in terms with Clause 2.2.2.4.iii.ii.2 of the RFP was a mandatory document which the Petitioner failed to submit, hence the Petitioner's Technical Bid was non-responsive.
23. No affidavit-in-reply has been filed by the Petitioner against the affidavit-in-opposition filed by the Respondent Authorities.
SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES:
24. Mr. K. N. Choudhury, the learned Senior counsel appearing on behalf of the Petitioner drew the attention of this Court to Clause 3.1.4 and submitted that for evaluation of the technical bid, the Authority may at its sole discretion seek clarifications in writings from any bidders regarding its technical bid. He submitted that the Page No.# 19/62 words "may" though have been used in Clause 3.1.4, but it should be understood as "shall" inasmuch as it is when the Authority seeks clarifications, the bidders have an opportunity to explain that there exists no deficiency. The learned Senior counsel submitted that pursuant to the revised RFP issued on 23.07.2025, no such steps were taken in that regard which caused serious prejudice to the Petitioner.
25. The learned Senior counsel for the Petitioner further submitted that Clause 2.2.2.4.iii.ii.2 of the RFP was void as it was vague, uncertain and ambiguous. He submitted that as the said Clause is vague and uncertain, it did not provide a level playing field in view of its uncertainties. The non-providing of a level playing field amongst the bidders on account of uncertain terms set out in the tender results in violation of Article 14 of the Constitution and in that regard referred to the judgment of the Supreme Court in the case of Reliance Energy Ltd. and Another Vs. Maharashtra State Road Development Corporation Ltd. and Others reported in (2007) 8 SCC 1 and specifically to Paragraph No.38 of the said judgment. It is therefore the submission of the learned Senior counsel that Clause 2.2.2.4.iii.ii.2 of the RFP lacked legal certainty on account of its vagueness or subjectivity resulting in unequal and discriminatory treatment for which the said Clause be declared to Page No.# 20/62 be violation of Article 14 of the Constitution and accordingly struck down.
26. The learned Senior counsel further submitted that the Petitioner duly admits the 2 x 2 lane bridge with footpath across River Ganga between Sultanganj (Bhagalpur District) and Aguwani Ghat (Khagaria District) in the State of Bihar resulted in unforeseeable and accidental collapse of parts of the few spans. The learned Senior counsel submitted that the cause of the collapse is yet to be ascertained. Under such circumstances, barring the Petitioner to participate in the present tender process amounts to blacklisting the Petitioner by the Respondent Authorities. and as such, Clause 2.2.2.4.iii.ii.2 of the RFP is liable to be set aside and quashed. In that regard, the learned Senior counsel referred to the judgment of the Supreme Court in the case of Blue Dreamz Advertising Private Limited Vs. Kolkata Municipal Corporation and Others reported in (2024) 15 SCC 264 and specifically to Paragraph Nos. 24 to 26.
27. The learned Senior counsel further submitted that incorporation of Clause 2.2.2.4.iii.ii.2 also violates the principles of natural justice inasmuch as without an opportunity being given to the bidder, straightaway a bidder is not allowed to compete. The Page No.# 21/62 learned Senior counsel submitted that the Clause violates the bidder's right to explain which is a facet of the principles of natural justice. In that regard, the learned Senior counsel referred to the judgment of the Division Bench in the case of Atlanta Limited Vs. Union of India and Another reported in (2018) SCC OnLine Del 8269 and specifically referred to Paragraph Nos.25, 26 and 27 of the said judgment.
28. The learned Senior counsel further submitted that the act on the part of the Respondent Authorities to technically disqualify the Petitioner on the ground of non-compliance with Clause 2.2.2.2 cannot be also sustained in law inasmuch as, the Petitioner has more than requisite financial capacity as its net worth being Rs.1124.58 crores as on the date of bid submission which is substantially more than the required net worth in terms with Clause 2.2.2.2 of the said RFP being Rs.75.43 crores. It was further mentioned by the learned Senior counsel that the Petitioner is not required to submit the audited Annual Reports for the year 2024- 25 in terms with Clause 2.2.2.7.ii of the said RFP which allowed the bidders to submit an undertaking in the circumstances the audited Annual Reports are prepared prior to the date of submission of the bid. The learned Senior counsel submitted that since the bid due date was 27.08.2025 and the Petitioner had time till 30.09.2025 to Page No.# 22/62 prepare and file its audited financial statements, the Petitioner had submitted its net worth certificate for the financial year 2023-24 along with its financial statement for the preceding five years and had also given undertaking in this regard in compliance to Clause 2.2.2.7.ii of the RFP.
29. The learned Senior Counsel further submitted that the act on the part of the Respondent Authorities to make the Petitioner technically non-responsive suffers from malice in law inasmuch as the Respondent Authorities knew very well that in view of Clause 2.2.2.4.iii.ii.2 of the RFP being unconstitutional and being the subject matter of the first writ petition, they could not have solely rejected the Petitioner's bid on the said Clause and as such resorted to reject the Petitioner's bid without application of mind. The learned Senior Counsel therefore submitted that the action on the part of the Respondents would come within the ambit of malice in law and thereby violative of Article 14 and 19 of the Constitution of India. It is also the contention of the learned Senior counsel that the Respondents have considered the Petitioner's bid with a preconceived mind to reject the Petitioner on technical evaluation itself.
30. Mr. K. Gogoi, the learned CGC appearing on behalf of the Page No.# 23/62 Respondent Authorities submitted that the revised RFP was issued on 23.07.2025 giving five days time to the bidders to submit their technical and financial bid i.e. within 14:30 hours of 28.07.2025. The reason being that on 19.05.2025, the RFP was issued containing various terms and conditions. Various intending bidders had submitted representations, including the Petitioner herein. On the basis of the said representations, the Respondent Authorities held a Pre Bid Meeting with all the bidders. The Petitioner was very much present in the said Pre Bid Meeting and thereupon various clarifications were issued in respect to the queries made by the various bidders, which is Annexure 6 to the writ petition being WP(C) No.5051/2025. The learned CGC submitted that the Petitioner sought for deletion of Clause 2.2.2.4.iii.ii.2 of the RFP understanding properly its ambit to the effect that the Petitioner would not be able to participate if the said clause remained. In that regard he referred to the representation dated 31.05.2025 submitted by the Petitioner and more particularly Paragraph Nos. 5 and 7 of the said representation. The learned CGC further submitted that the Respondent Authorities were not inclined to delete the said Clause 2.2.2.4.iii.ii.2 of the RFP but rather reduced the period from 5 years to 3 years. It is therefore submitted that the stand taken by the Petitioner in both the writ petitions that Clause 2.2.2.4.iii.ii.2 of the RFP as well as the clarification is vague Page No.# 24/62 and uncertain is nothing but an afterthought for which the instant proceedings are nothing but an utter abuse of the process of the Court.
31. The learned CGC further submitted that the submission so made by the learned Senior Counsel for the Petitioner that on account of force majeure also a bidder would be disqualified is totally misconceived inasmuch as it was clarified that the said Clause 2.2.2.4.iii.ii.2 of the RFP would only be applicable if there was a collapse of the Superstructure/Substructure on account of design failure or quality related failure of the permanent structure. Therefore, the submission so made that the Clause 2.2.2.4.iii.ii.2 of the RFP is vague, uncertain and indefinite is totally misconceived. The learned CGC also submitted that the Petitioner very well knows that the collapse of the bridge over the river Ganga in the State of Bihar was due to design failure which is mentioned in the order of the learned Patna High Court dated 14.09.2023 and referred to Paragraph No.3 of the said order.
32. The learned CGC further submitted that even a perusal of the Undertaking given by the Petitioner at the time of submission of its Bid do not mention that the collapse of the spans of the bridge was on account of force majeure and now the Petitioner is trying to Page No.# 25/62 improve its case. The learned CGC further referring to the order dated 14.09.2023 passed by the learned Patna High Court submitted that it is clearly mentioned that "The design would now be redone and remodeled with modified technology" and the Petitioner had taken up itself the liability insofar as the building the collapsed spans with no extra cost to the Government. The learned CGC therefore submitted that a very perusal of the said order would show that the design was faulty which the petitioner very well knew, else why the Petitioner would have agreed to do the job at its own expense if it was not its fault.
33. The learned CGC referred to various judgments of the Supreme Court on the scope of judicial review. The judgments relied upon were:
(i) Air India Limited Vs. Cochin International Airport Limited and Others reported in (2000) 2 SCC 617 and referred to paragraph No.7.
(ii) Jagdish Mandal Vs. State of Orissa and Others reported in (2007) 14 SCC 517 and referred to Paragraph No.22.
(iii) Balaji Ventures Private Limited Vs. Maharashtra State Power Generation Company Ltd. and Another reported in (2022) SCC Page No.# 26/62 OnLine SC 1967 and referred to Paragraph Nos. 11 and 12.
(iv) Uflex Limited Vs. Government of Tamil Nadu and Others reported in (2022) 1 SCC 165 and referred to Paragraph No.47.
(v) BTL EPC Limited Vs. Macawber Beekay Private Limited and Others reported in (2024) 12 SCC 614 and referred to Paragraph Nos. 35 and 36.
34. The learned CGC further submitted that Clause 2.2.2.4.iii.ii.2 of the RFP was not only applied against the Petitioner but was applied against everybody who wanted to participate. Various bidders on account of the said Clause did not participate. However, six bidders participated and after carrying out the technical evaluation, it was only found that two bidders, namely the Respondent No.3 and one Afcons Infrastructure Limited were technically responsive. Under such circumstances, there cannot be a malice in law as alleged by the Petitioner.
35. The learned CGC submitted that as regards the disqualification of the Petitioner on the aspect pertaining to Clause 2.2.2.2, the certificate of net worth provided by the Petitioner did not mention anything as regards the net worth of the Petitioner for the year 2024-25. He submitted that the Petitioner only produced the net Page No.# 27/62 worth up to the year 2023-24 only and as such, the said document was incomplete as the bid due date was 27.08.2025 which does not lie within three months of the preceding financial year. The learned CGC further submitted that the submission of the net worth of the year 2024-25 was mandatory and as the document of the latest concluded financial year was not submitted by the Petitioner, the financial condition was not satisfied in terms with Clause 2.1.13 of the RFP. He therefore submitted that the Petitioner's submission of Annexure-3 was incomplete and hence the Petitioner was disqualified on account of non-compliance with the financial submission criteria as per Clause 2.2.2.2 of the RFP.
36. Mr. D. Das, the learned Senior Counsel appearing on behalf of the Respondent No.3 submitted that the Petitioner herein cannot complain about ambiguity or uncertainty of Clause 2.2.2.4.iii.ii.2 of the RFP or for that matter there being no level playing field inasmuch as the Petitioner very well knew the ambit of Clause 2.2.2.4.iii.ii.2 and this aspect of the matter is further clear from the fact that the Petitioner had submitted a representation on 31.05.2025 wherein the Petitioner sought for deletion of the said Clause inasmuch as, without deletion of the said Clause, the Petitioner would not be in a position to participate. He further referred to the document enclosed as Annexure-13 (Colly) to Page No.# 28/62 WP(C) No.5051/2025 wherein also the Petitioner requested the Hon'ble Member Infrastructure, Railway Board for a meeting to discuss the bar created by Clause 2.2.2.4.iii.ii.2. He further submitted that the Petitioner was very much present in the Pre Bid Meeting and he very well knew what was clarified in the Pre Bid Meeting held on 23.07.2025 in respect to Clause 2.2.2.4.iii.ii.2.
37. The learned Senior counsel further submitted that the Petitioner very well knew that Clause 2.2.2.4.iii.ii.2 of the RFP shall only be applied in the case of design failure or quality related failure of the permanent structures. The learned Senior counsel further referring to the undertaking so submitted by the Petitioner dated 26.08.2025 enclosed to the additional affidavit filed in WP(C) No.5051/2025 contended that there is not a whisper also that the construction of the bridge in Bihar fell on account of force majeure or it had no relation with design failure or quality related failure of the permanent structure. The learned Senior counsel further elaborating submitted that although there is no format provided but there is no undertaking to the effect given that there was no history of collapse of Superstructure/Substructure of any span of bridge flyover via-duct Metro line work during the construction service in last three years ending the last day of the month previous to one in which the tender is invited. The learned Senior Page No.# 29/62 counsel therefore submitted that as the Undertaking was not submitted, the Respondent Authorities have rightfully rejected the technical bid of the Petitioner.
38. The learned Senior counsel further referring to Clause 3.1.6 which is at Section 3 of the RFP with the heading "Criteria for evaluation of the technical bid" submitted that in terms with Clause 3.1.6.1(g), the technical bid can be rejected if it contains any condition or qualification, the very undertaking so submitted by the Petitioner was qualified. In addition to that, the learned Senior counsel also referred to Clause 2.1.7 of the Instruction to the Bidders and submitted that any condition of qualification or any other stipulation contained in the bid shall render the bid liable to rejection as a non-responsive bid. The learned Senior counsel submitted that the Undertaking was not only conditional but also qualified and containing stipulations which is not in terms with Clause 2.2.2.4.iii.ii.2 and as such, the Respondents have rightly rejected.
39. The learned Senior counsel also submitted that the Petitioner herein admittedly had submitted the bid and thereupon challenged Clause 2.2.2.4.iii.ii.2 of the RFP by filing the writ petition thereafter. In that regard, the learned Senior counsel referred to the judgment Page No.# 30/62 of the Supreme Court in the case of National High Speed Rail Corporation Limited Vs. Montecarlo Limited and Another reported in (2022) 6 SCC 401 and referred to Paragraph No.44 wherein the Supreme Court held that once the writ Petitioner participated having knowledge of Clause in the ITB, it was not open for the Petitioner to challenge the same. The learned Senior counsel therefore submitted that the Petitioner knew about Clause 2.2.2.4.iii.ii.2 of the RFP and participated in the tender process by submission of the bid as is mentioned in Paragraph No.37 WP(C) No.5051/2025 and thereupon challenged the said clause. The learned Senior counsel submitted that in that view of the matter, the instant writ petition on that count should be dismissed.
40. The learned Senior counsel further referred to the judgment of the Supreme Court in the case of Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and Another reported in (2016) 16 SCC 818 and more particularly to Paragraph No.15 and submitted that as the Respondent Authorities having authored the tender documents, they are the best person to understand and appreciate its requirements and interpret those documents. The learned Senior counsel further submitted that in the said judgment, the Supreme Court further observed that even if the owner or the employer of the project may give an interpretation to the tender Page No.# 31/62 documents that is not acceptable to the Constitutional Courts, but that by itself is not a reason for interfering with such interpretation.
POINTS FOR DETERMINATION:
41. The following points for determination arise in the present proceedings:
(i) Whether the Petitioner can challenge Clause 2.2.2.4.iii.ii.2 of the RFP by filing a writ petition pursuant to submission of its bid?
(ii) Whether Clause 2.2.2.4.iii.ii.2 of the RFP read with the clarification is uncertain, vague and ambiguous thereby not providing a level playing field?
(iii) Whether Clause 2.2.2.4.iii.ii.2 of the RFP is arbitrary and malafide?
(iv) Whether Clause 2.2.2.4.iii.ii.2 of the RFP as framed amounts to blacklisting?
(v) Whether the Respondents were justified in rejecting the technical bid of the Petitioner in terms with Clause 2.2.2.4.iii.ii.2 of the RFP?
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(vi) Whether the Respondents were justified in rejection of the petitioner's technical bid in terms with Clause 2.2.2.2 in the facts and circumstances of the instant case?
(vii) Whether the action on the part of the Respondents to reject the Technical Bid of the Petitioner amounts to malice in law?
ANALYSIS AND DETERMINATION:
FIRST POINT FOR DETERMINATION:
42. The Petitioner at Paragraph No.37 of the writ petition being WP(C) No.5051/2025 had categorically stated that the Petitioner has submitted the bid pursuant to the revised RFP dated 23.07.2025. In other words, the filing of the writ petition i.e. WP(C) No.5051/2025 is pursuant to the submission of the bid by the Petitioner. A question therefore arises as to whether the Petitioner herein would have the locus standi to challenge Clause 2.2.2.4.iii.ii.2 of the RFP after submission of such bid. In this regard, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of National High Speed Rail Corporation Limited (supra) and more particularly Paragraph No.44 which is reproduced herein under:
"44. Under the circumstances, the High Court has committed a grave error in Page No.# 33/62 holding that Clauses 28.1 and 42.5 are patently illegal, more particularly, in the absence of any challenge to the same and also on the ground that once the original writ petitioner participated having knowledge of the aforesaid clauses in ITB, thereafter it was not open for the original writ petitioner to challenge the same. The original writ petitioner was knowing right from the very beginning with respect to the confidentiality clause contained in Clause 28 and that grounds on which the bids of unsuccessful bidders are not selected shall be communicated only after a final decision to award the contract is communicated under Clause 42. If the original writ petitioner was aggrieved either it would not have participated and/or ought to have challenged such clauses before participating in the tender process. Under the circumstances, the impugned judgment and order passed by the High Court holding Clauses 28.1 and 42.5 as patently illegal cannot sustain and the same also deserves to be quashed and set aside."
43. From the above quoted paragraph of the judgment passed by the Supreme Court in the case of National High Speed Rail Corporation Limited (supra), it is clear that the intending bidder if aggrieved by a Clause in the tender document, the bidder has to either challenge the Clause and not participate or challenge the Clause and thereafter participate. In the instant case, the Petitioner clearly mentioned at Paragraph No.37 of WP(C) No.5051/2025 that the Petitioner participated in the bid process due to time constraint. Under such circumstances, it is the opinion of this Court that the Petitioner cannot challenge Clause 2.2.2.4.iii.ii.2 of the RFP.
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44. This Court also finds it relevant to observe that the Petitioner knew the effect of Clause 2.2.2.4.iii.ii.2 of the RFP as would be apparent from the RFP issued on 19.05.2025 and the representation submitted on 31.05.2025. The Petitioner did not challenge the said Clause 2.2.2.4.iii.ii.2 of the RFP but challenged the same only after submission of the bid.
45. Under such circumstances, it is the opinion of this Court that the Petitioner in the present facts cannot challenge Clause 2.2.2.4.iii.ii.2 of the RFP.
46. The above answers the first point for determination.
SECOND POINT FOR DETERMINATION:
47. The second point for determination is not needed to be discussed in view of the opinion rendered in the first point for determination. Be that as it may, as this Court heard the learned Senior counsel for the Petitioner who contended that Clause 2.2.2.4.iii.ii.2 of the RFP suffers from vagueness, ambiguity as well as lack of certainty, this Court finds it appropriate to deal with the said contention.
48. Clause 2.2.2.4.iii.ii.2 of the RFP as it stood when the RFP was Page No.# 35/62 issued on 19.05.2025 as well as the revised RFP issued on 23.07.2025 have already been quoted in the previous segments of the instant judgment.
49. From a perusal of Clause 2.2.2.4.iii.ii.2 of the RFP as it stood on 19.05.2025, it is clear that for the purpose of the RFP, there should not be history of collapse of Superstructure or Substructure of any span of bridge/flyover/via-duct/metro line work during construction/service in the last five years ending last day of the month previous to the one which tender is invited. An undertaking in that regard has to be submitted along with the bid. The change in Clause 2.2.2.4.iii.ii.2 of the RFP brought about by the revised RFP is that five years was reduced to three years.
50. During the course of the hearing, the Chief Engineer, NF Railway was present and he had explained the terms 'Superstructure' and 'Substructure'. This Court finds it relevant to briefly deal on this aspect. As per the Chief Engineer, the Superstructure of the bridge is the entire upper portion located above the bearings that directly carries the traffic load and spans the distance between supports. It includes deck, girders, trusses, parapets etc. The Chief Engineer further explained that the critical component between the Superstructure and the Substructure are Page No.# 36/62 the bearings. All the components below the bearings are known as the Substructure. He explained that the Substructure of the bridge is the entire lower component located below the bearings designed to support the Superstructure and transfer all loads safely to the ground. The key elements of Substructure in respect to a bridge include abutments, piers, foundations etc.
51. There is no doubt that taking into account that both the Petitioner and the Respondent No.3 are experienced in the business of construction of bridges are aware of these two terms. This aspect is further clear from the fact that the Petitioner herein had submitted a representation on 31.05.2025 thereby requesting the Tendering Authority that Clause 2.2.2.4.iii.ii.2 of the RFP should be deleted inasmuch as if the said Clause remains, the Petitioner having encountered unforeseeable and accidental collapse of parts of the few spans in the bridge constructed across River Ganges between Sultanganj (Bhagalpur District) and Aguwani Ghat (Khagaria District) in the State of Bihar would not be able to participate. In the previous segments of the instant judgment, this Court had quoted Paragraph 5 and Paragraph 7 of the representation dated 31.05.2025.
52. It is also a matter of record that in respect to the Clause Page No.# 37/62 2.2.2.4.iii.ii.2 of the RFP, while the petitioner sought for deletion, various other bidders sought for modification thereby reducing the period of time from 5 years to 2/3 years. In that regard, a Pre Bid Meeting was held by the Respondent Authorities with various prospective bidders and in the said Pre Bid Meeting, various Clauses of the RFP were taken up for consideration including Clause 2.2.2.4.iii.ii.2 of the RFP. The Clarification which was given on 23.07.2025 in respect to the query pertaining to Clause 2.2.2.4.iii.ii.2 of the RFP had already been quoted above. It appears from the clarification that if the collapse of the Superstructure/Substructure pertain to design failure or quality related failure of permanent structure, the said aspect would only be considered for the purpose of the said Clause. In other words, the Tendering Authorities shall not take into consideration while evaluating Clause 2.2.2.4.iii.ii.2 of the RFP if there is a collapse of the Superstructure/Substructure on account of any other circumstances except design failure or quality related failure of the permanent structure.
The learned Senior counsel for the Petitioner submitted that there is ambiguity and lack of uncertainty in the expression 'permanent structure'. The said submission appears to be an afterthought inasmuch as there is no mention in the Undertaking Page No.# 38/62 so submitted that the spans of the bridge which collapsed in the State of Bihar were not permanent structures.
53. The Petitioner did not submit any representation seeking any clarification but submitted the bid. In the said bid so submitted, the Petitioner submitted an Undertaking for the purpose of Clause 2.2.2.4.iii.ii.2 of the RFP that too without prejudice. Contents of the said Undertaking is relevant and as such the same is reproduced herein under:
"Date 26.08.2025 Without Prejudice Sub: Construction of 2nd rail cum road bridge over river Brahmaputra including viaduct, retaining walls, embankment and minor bridges including track work, OHE work, signaling and telecom work, commissioning of stations and general work between Agthori and Kamakhya Station from km 393.980 to km 401.120.
UNDERTAKING That the Bidder refers to Clause 2.2.2.4(iii)(ii)2 of the RFP 1396714/2025/O/O/DY.CE/CON/3/MLG/NFR tender no.CE-CON-AK-EPC-2025-02, and at the outset, without prejudice to all rights, has to contend as under:
It is the Bidder's firm submission that Clause-2.2.2.4(iii)(ii)2 is void inter alia under Ss 29, 23, 24, 65 of the Indian Contract Act, 1872, simultaneously being Page No.# 39/62 discriminatory and also violative of Constitutional considerations binding on the Government Contracts. The Bidder's e-mail representations dated 31.05.2025 and 05.07.2025, have also not been responded by the Competent Authority within the Railways.
That the qualification requirement under the above-referred Clause 2.2.2.4(iii)(ii)2 read with the remarks in reply to Pre-Bid Query Sr. No.22 being: "The Clarification has been incorporated in revised RFP. The Collapse of Superstructure/Substructure pertain to Design failure or quality related failure of permanent structure would be considered in this clause only"; is patently ambiguous, unenforceable and merits declaration as being void under S 29 of the Indian Contract Act, 1872 and also being violative of Articles 14, 19, 21 and 32 of the Constitution of India.
Subject to the foregoing, it is disclosed in respect of unforeseen, unforeseeable collapse of part of spans on 30.04.2022, 04.06.2023 in respect of "..Sultanganj - Aguwanighat.." project: under instructions of the Employer therein (the BRPNNL) and as per Order dated 14.09.2023 of the Hon'ble High Court of Judicature at Patna under PIL (bearing Case No.CWP No.8209 of 2023) Petition, re-execution of collapse part of spans work by the Bidder is in progress under the Force Majeure Clause 21.6 read with the Contract Agreement as a whole. Finally, the matter in respect thereof is to be resolved within the modalities of the Contract Agreement therein as a whole.
Accordingly, undertaking is given. This undertaking is without prejudice to all the rights of the Bidder, including to avail the Constitutional remedies and interim relief simultaneously to prevent possibility of declaration of non-responsive status to the Bidder by the doctored misuse of Clause-2.2.2.4(iii)(ii)2 by the Competent Authority.
For SPS Construction India Pvt. Ltd.
Page No.# 40/62 (Deepak Singla) Director"
54. A perusal of the above quoted Undertaking would not reveal the reason why the petitioner has referred to Clause 2.2.2.4.iii.ii.2 of the RFP as well as the clarification so given on 23.07.2025 to be patently ambiguous, unenforceable and is required to be declared void. There is no mention in the Undertaking that the bridge which was constructed by the Petitioner in the State of Bihar over the River Ganges wherein admittedly parts of spans collapsed on 30.04.2022 and 04.06.2023 have nothing to do with Superstructure/Substructure of the bridge or for that matter anything to do with design failure or quality related failure of the permanent structures.
55. In this regard, this Court now finds it relevant to take note of the judgment relied upon by the learned Senior counsel appearing on behalf of the Petitioner i.e. in the case of Reliance Energy Ltd. (supra) wherein reference was drawn to Paragraph No.38. The said paragraph being relied upon is quoted herein under:
"38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This "legal certainty" is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate Page No.# 41/62 doctrine of "level playing field"."
56. The question therefore arises as to whether Clause 2.2.2.4.iii.ii.2 of the RFP lacks legal certainty and devoid of norms and benchmarks. In the opinion of this Court, Clause 2.2.2.4.iii.ii.2 of the RFP does not lack legal certainty or is devoid of norms and benchmarks. It is also the opinion of this Court that taking into account the Petitioner's stand taken in the representation submitted on 31.05.2025, it cannot be said that the Petitioner was not able to discern the meaning of the said Clause. The clarification which was given on 23.07.2025 further clarifies that for the purpose of the said Clause, collapse of the Superstructure or Substructure would be considered if it relates to design failure or quality related failure of the permanent structure. Under such circumstances, it is therefore the opinion of this Court Clause 2.2.2.4.iii.ii.2 of the RFP cannot be said to be vague, void or ambiguous on the ground of lacking legal certainty. The said Clause 2.2.2.4.iii.ii.2 of the RFP cannot also be said to be lacking norms or benchmarks. The principle laid down by the Supreme Court in the case of Reliance Energy Ltd. (supra) cannot be applied to the present facts. At the cost of repetition, this Court opines that Clause 2.2.2.4.iii.ii.2 read with the clarification given on 23.07.2025 is clear, unambiguous and definite.
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57. This decides the second point for determination.
THIRD POINT FOR DETERMINATION:
58. Let this Court now deal with the third point for determination as to whether Clause 2.2.2.4.iii.ii.2 of the RFP is arbitrary and malafide.
At the outset, it is observed that the Petitioner cannot challenge the Clause 2.2.2.4.iii.ii.2 of the RFP as arbitrary and malafide after having submitted the bid.
Be that as it may, this Court would deal with the said point for determination as the learned Senior counsel had contended that the Clause 2.2.2.4.iii.ii.2 of the RFP is arbitrary and malafide.
59. The Respondent Authorities have invited RFP from eligible bidders for construction of a rail cum road bridge over the River Brahmaputra at a huge estimated project cost of approximately Rs.1508 crores. The Respondent Authorities being the Tendering Authority has the right as well as expertise to decide the terms of the RFP. The Supreme Court in the case of Jagdish Mandal (supra) observed that such contracts are commercial transactions. The Tendering Authority while stipulating the terms of the RFP decided Page No.# 43/62 to insert a Clause debarring those bidders who have history of collapse of Superstructure/Substructure of any span of bridge/flyover/via-duct/metro link work during construction/service in the last 3 (three) years ending last day of the month previous to one in which tender is invited. The clarification which was given on 23.07.2025 further made it clear that the said Clause would only be considered for cases where Superstructure/Substructure had collapsed due to design failure or quality related failure of the permanent structure. The clarification made it therefore clear that if there is collapse of Superstructure/Substructure on account of force majeure, the same would not be considered for the purpose of Clause 2.2.2.4.iii.ii.2 of the RFP.
60. The question therefore is can it be said that Clause 2.2.2.4.iii.ii.2 of the RFP is arbitrary or malafide. At this stage, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Air India Ltd. (supra) wherein the Supreme Court observed that when a contract is awarded by the State, it is essentially a commercial transaction. In arriving at the decision, considerations which are paramount are commercial consideration. The State can choose its own method to arrive at such decision and it can fix its own terms of invitation to the tender and that is not open to judicial scrutiny. In fact, more than 30 years ago, in Page No.# 44/62 the case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651, the Supreme Court had categorically observed that the terms of invitation to tender cannot be open to judicial scrutiny because invitation to tender is in the realm of contract.
Under such circumstances, the petitioner who challenges Clause 2.2.2.4.iii.ii.2 of the RFP has to set up a case of arbitrariness and malafide which would shock the conscience of this Court. Merely stating that the reason for having reduced the period from 5 years to 3 years in order to accommodate some bidders would not suffice taking into consideration that the Tendering Authority has the discretion to do so. In fact, entering in such dispute in exercise of the powers of judicial review would tantamount to transgression upon the authority of the Tendering Authorities.
61. Considering the above, it is the opinion of this Court that the Petitioner had failed to demonstrate how Clause 2.2.2.4.iii.ii.2 of the RFP is arbitrary or malafide.
62. The above answers the third point for determination.
FOURTH POINT FOR DETERMINATION:
63. The fourth point for determination has been formulated on the Page No.# 45/62 basis of the submissions made by the learned Senior counsel for the Petitioner that Clause 2.2.2.4.iii.ii.2 of the RFP amounts to blacklisting. In that regard, the learned Senior counsel has referred to the judgment of the Supreme Court in the case of Blue Dreamz Advertising Private Limited (supra) and specifically emphasized upon paragraph Nos. 24 to 26. While dealing with the present point for determination, it is also apposite to take note of the submission of the learned Senior counsel insofar as Clause 3.1.4 of the RFP inasmuch as it is the submission of the learned Senior counsel that the Respondent Authorities ought to have sought clarification from the Petitioner before rejecting the Technical Bid of the Petitioner. In addition to the above, this Court while dealing with the present point for determination would also deal with the submission made by the learned Senior counsel for the Petitioner that Clause 2.2.2.4.iii.ii.2 of the RFP violates the principles of natural justice. In that regard, the learned Senior counsel for the Petitioner referred to the judgment of the learned Division Bench of the Delhi High Court in the case of Atlanta Limited (supra) and specifically laid emphasis upon the observation made at Paragraph No.25 of the said judgment.
64. This Court in the previous segments of the instant judgment has detailed out the facts. When the RFP was issued on Page No.# 46/62 19.05.2025, options were open to various bidders including the Petitioner to seek clarification and/or submit representations. The Petitioner admittedly submitted representation on 31.05.2025 whereby the Petitioner sought for deletion of Clause 2.2.2.4.iii.ii.2 of the RFP. In the said representation, there is no mention that the Petitioner did not understand the scope and ambit of Clause 2.2.2.4.iii.ii.2 of the RFP rather the Petitioner stated that the said Clause would debar the Petitioner from participating in view of collapse of few spans of the bridge constructed by the Petitioner over the River Ganges in the State of Bihar.
65. The materials on record further show that the Respondent Authorities had a Pre Bid Meeting amongst various intending bidders including the Petitioner who participated in the Pre Bid Meeting. After that, clarifications were issued on 23.07.2025 which is enclosed as Annexure-6 to the writ Petition being WP(C) No.5051/2025. Insofar as Clause 2.2.2.4.iii.ii.2 of the RFP, it was clarified that while considering the said Clause, only collapse of Substructure/ Superstructure on account of design failure or quality related failure of permanent structure would be considered.
66. In the backdrop of the above, this Court has failed to understand on what basis, the learned Senior counsel for the Page No.# 47/62 Petitioner had submitted that Clause 2.2.2.4.iii.ii.2 of the RFP amounts to blacklisting. It appears most likely that the Petitioner herein had failed to understand the difference between blacklisting and a Clause incorporated in a tender by the Tendering Authority seeking certain eligibility conditions. The law laid down by the Supreme Court in the judgment rendered in the case of Blue Dreamz Advertising Private Limited (supra) under no circumstances would be applicable to the facts of the instant case as the case before the Supreme Court was a simple case of blacklisting and had nothing to do with the Tendering Authority incorporating requisite eligibility conditions. In this regard, this Court finds it pertinent to observe that the Supreme Court in the case of Uflex Limited (supra) had categorically observed that in every tender, there are certain qualifying parameters whether it be technology or turnover. The Court cannot in exercise of judicial review sit over in judgment what should be the turnover required for an entity to participate. The said principle of law squarely applies to the present case inasmuch as the Tendering Authority herein is competent to set out the eligibility conditions. In the present case, the Tendering Authority had set out various eligibility conditions including Clause 2.2.2.4.iii.ii.2 of the RFP. The question is whether the intending bidder can question the eligibility conditions if it does not suit the intending bidder. The answer would be in the negative Page No.# 48/62 unless and until the eligibility condition(s) are grossly arbitrary.
Under such circumstances, Clause 2.2.2.4.iii.ii.2 of the RFP in the opinion of this Court does not amount to blacklisting.
67. Let this Court now deal with the contention that Clause 2.2.2.4.iii.ii.2 of the RFP violates the principle of natural justice. It is relevant to take note of the judgment of the Supreme Court in the case of Jagdish Mandal (supra) wherein the Supreme Court at Paragraph No.22 categorically observed that principles of equity and natural justice stay at a distance while evaluating tenders and awarding contracts as such transactions essentially are commercial transactions. Paragraph No.22 of the said judgment is reproduced herein below:
"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 to 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 Page No.# 49/62 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."
68. Now let this Court take into consideration the submission of the learned Senior counsel for the Petitioner that if an opportunity Page No.# 50/62 would have been given by invoking Clause 3.14 of the RFP, the Petitioner could have explained that reason for the collapse of the spans of the bridge over the River Ganges in the State of Bihar which is yet to be ascertained. It is pertinent to observe that the revised RFP was issued on 23.07.2025 after the initial RFP had been issued on 19.05.2025. The Petitioner after the issuance of the initial RFP on 19.05.2025 submitted a representation on 31.05.2025. Opportunity was provided to all bidders in the Pre Bid Meeting wherein the Petitioner participated and thereupon clarifications were issued on 23.07.2025 as well as the revised RFP on 23.07.2025. Under such circumstances, it does not lie in the mouth of the Petitioner to submit that principles of natural justice was not adhered to, irrespective of the fact that principles of equity and natural justice have no role to play in the evaluation of tenders and awarding of contracts, which is the settled proposition of law.
69. The judgment in the case of Atlanta Limited (supra) rendered by the learned Division Bench of the Delhi High Court is also not applicable to the facts of the instant case.
70. Under such circumstances, it is therefore the opinion of this Court that neither Clause 2.2.2.4.iii.ii.2 of the RFP amounts to blacklisting nor it violates the principles of natural justice. It is also Page No.# 51/62 the opinion of this Court that the Petitioner herein having already submitted the bid prior to filing of the writ petition cannot raise the issue that Clause 2.2.2.4.iii.ii.2 of the RFP amounts to blacklisting/violates the principles of natural justice.
71. This answers the fourth point for determination.
FIFTH POINT FOR DETERMINATION:
72. In the previous segments of the instant judgment, this Court has quoted Clause 2.2.2.4.iii.ii.2 of the revised RFP. This Court has also quoted the Undertaking which was submitted by the Petitioner in pursuance to the Clause 2.2.2.4.iii.ii.2 of the RFP. A perusal of the said Undertaking under no circumstances can be said to be an Undertaking in terms with Clause 2.2.2.4.iii.ii.2 of the RFP. The Respondent Authorities being the Tendering Authority have also viewed it in that manner. In this regard, this Court finds it relevant to reproduce paragraph Nos. 35 and 36 of the judgment in the case of BTL EPC Limited (supra).
"35. It is settled law that in contracts involving complex technical issues, the Court should exercise restraint in exercising the power of judicial review. Even if a party to the contract is "State" within the meaning of Article 12 of the Constitution, and as such, is amenable to the writ jurisdiction of the High Court or the Supreme Court, the Court should not readily interfere in commercial or contractual matters. This principle has been reiterated in a Page No.# 52/62 recent judgment of this Court. J.B. Pardiwala, J., speaking for the Bench in Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking held: (SCC p. 18, para 50) "50. This Court being the guardian of fundamental rights is duty- bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give fair play in the joints to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer."
36. The Court ought to defer to the discretion of the tender inviting Page No.# 53/62 authority which, by reason of having authored the tender documents, is best placed to interpret their terms. The Courts ought not to sit as courts of appeal but review the decision-making process and examine arbitrariness or mala fides, if any."
73. The above quoted paragraphs clearly show that the Court ought to defer to the discretion of the Tender Inviting Authority which by reason of having authored the tender documents is best placed to interpret their terms. In the instant case, as the Respondent Authorities upon perusal of the Undertaking were of the opinion that the said Undertaking was not in terms with Clause 2.2.2.4.iii.ii.2 of the RFP. This Court cannot sit over the said opinion of the Tendering Authority.
It is therefore the opinion of this Court that the Respondents were justified in rejecting the technical bid of the Petitioner in terms with Clause 2.2.2.4.iii.ii.2 of the RFP.
74. This answers the fifth point for determination.
SIXTH POINT FOR DETERMINATION:
75. The sixth point for determination relates to the rejection of the Petitioner's technical bid in terms with Clause 2.2.2.2 of the RFP.
Page No.# 54/62
76. Clause 2.2.2.2 relates to financial capacity. It stipulates as under:
"2.2.2.2. Financial Capacity: The Bidder shall have a minimum Net Worth (the "Financial Capacity") of amount equals to 5% (Five percent) of the Estimated Project Cost at the close of the preceding Financial Year."
77. This Court has taken note of Annexure-13 to WP(C) No.6625/2025 wherein it is mentioned that the Petitioner's bid was held to be non-responsive in terms with Clause 2.2.2.2 and Clause 2.2.2.4.iii.ii.2 of the RFP. In this regard, this Court had perused the Minutes of the Technical Committee which were produced before this Court pursuant to the order passed by this Court on 17.12.2025. At Serial No.4 of the Minutes of the Technical Committee insofar as the Petitioner is concerned, it is mentioned that the Petitioner had submitted Financial Capacity in the prescribed format vide Annexure-III of Appendix-IA with the details of the Petitioner's Bankers and their certified and audited documents which was signed by Jaslin Kaur for Subhash Vipin & Co. CA. It is also mentioned that the total net worth at the end of the financial year came to 1124.58 crores. Further to that, the Technical Committee also mentioned that the net worth should have been submitted for the financial year 2024-25. However the same was not submitted. The Petitioner had only submitted for Page No.# 55/62 financial year up to 2023-2024 from 2019-20. Serial No.4 of the Minutes of the Tender Committee insofar as the case of the Petitioner is concerned is reproduced herein below:
S.N. Test Responsiveness Responsive Remarks Documents 4 Clause 3.1.6.1(a) of RFP Yes The Bidder has submitted "Financial Capacity" in prescribed format vide (Annex-III of Appendix- Annex-III of Appendix-IA with the IA : Financial Capacity of details of Bidder's Bankers. (Doc 12, the Bidder) Page 24), and their certified and audited documents which is signed by Jaslin Kaur for Subhash Vipin & Co. CA (Firm registration no-012898N against UDIN No-25539633BMIJXM3162 Total Net worth at the end of Financial year comes to 1124.58 Cr. (Doc 22) The Net worth Should be submitted for Financial Year 2024-25: Not Submitted. Bidder has submitted for Financial Year Upto 2023-24 from 2019- 20.
78. The above quoted portion at Serial No.4 of the Minutes of the Technical Committee would also show that insofar as Clause 3.1.6.1.(a) of the RFP, it was observed that the Petitioner's bid was responsive. The copy of the Minutes of the Technical Committee so produced before this Court and more particularly in relation to the Petitioner is kept on record and marked with the letter "X".
79. A further perusal of the Minutes of the Technical Committee Page No.# 56/62 insofar as the Petitioner is concerned would show that the Technical Committee observed that the Petitioner did not fulfill the Technical Capacity of eligibility criteria as per Clause 2.2.2.4.iii.ii.2 of the RFP. Therefore, the Technical Committee of the Respondents only recommended that the Petitioner's Technical Bid is required to be rejected as per Clause 2.2.2.4.iii.ii.2 of the RFP only.
80. The Technical Committee further forwarded their recommendations to the Competent Authority to accept, reject or modify the Technical Committee's recommendation. The Competent Authority accepted the Technical Committee's recommendation with certain observations. The Competent Authority also further stated that the Petitioner did not have the technical eligibility as the financial statement of 2024-25 [3.1.6.1.
(a)] was not submitted. The relevant portion of the observations made by the competent authority is reproduced herein under:
"Decision : TCR Accepted TCR Accepted. Following observations made. 1. Dineshchandra R. Agarwal Infracon Pvt. Ltd., Ahmedabad:-Non-Responsive because (i) Appendix 1B [3.1.6.1(a)] Not submitted. (ii) The authorized person of Gammon for JV has not signed the JV agreement [3.1.6.1.(e)]. (iii) Financial statement for 2024-25 [3.1.6.1.(a)] not submitted. 2. PNC Infratech Ltd., Agra - BBJ not eligible because (i) MOA, AOA and Bard resolution not submitted as per [3.1.6.1(a)].
Page No.# 57/62 Responsiveness in question (ii) Technical eligibility as per Clause 2.2.2.4.(iii) no work for 35% cost (528 cr) for 76.2m span or well foundation is submitted.
(iii) For 10% criteria for JV partner BBJ has submitted two (02) works, but no JV agreement is submitted as per para 2.2.2.4.(iii), Note 1. 3. Rall Vikas Nigam Limited, New Delhi Technical Eligibility Not fulfilled. (i) History of collapse undertaking not submitted, failed in 2.2.2.4.(iii)(ii)2. 4. SPS construction India Private Limited Panchkula Non-responsive and Technical Eligibility not (i) Financial statement for 2024-25 [3.1.6.1.(a)] not submitted. (ii) History of collapse undertaking not submitted, failed in 2.2.2.4(iii)(ii).2. 5. Larsen and Tubro Limited - Eligible 6. Afcons Infrastructure Limited Mumbai - Eligible project code. Total Cost is given by the client certificate at DOC-16, page 1 & page 2, and by Auditor at DOC-6 page 5 & page 6. Payment in last five years is more than 10% of estimated cost and thus this is eligible project. The bridge is having steel OWG multiple spans more than 76.2m on client signed drawing DOC-16, page 3. This qualifies OWG criteria. Well Foundation is already covered in project code."
81. Therefore, the question therefore arises as to whether the Petitioner had the financial capacity in terms with Clause 2.2.2.2 which has to be adjudged in terms with clause 3.1.6.1.(a) of the RFP. The Petitioner admittedly submitted the documents for the financial year 2019-20 to 2023-24 but did not submit for the financial year 2024-25.
82. In this regard, it is pertinent to take note of the requirement of the documents to be submitted for financial capacity. Clause 2.2.2.7 of the RFP deals with Submission in support of Financial Page No.# 58/62 Capacity. The Sub-Clauses (i), (ii) and (iii) of Clause 2.2.2.7 of the RFP being relevant is reproduced herein under:
"2.2.2.7: Submission in support of Financial Capacity i. The Technical Bid shall be accompanied by the Audited Annual Reports which includes Balance sheets and P&L Accounts of the Bidder (of each member in case of a Consortium/Joint Venture and also of associates if any, whose financial capacity is being claimed) for the last 5 (five) Completed Financial Years, preceding the year in which the Bid is submitted. Any certificate issued by Statutory Auditor/CA must include UDIN.
ii. In case the annual accounts for the latest financial year are not audited and therefore the Bidder cannot make it available, the Bidder shall give an undertaking to this effect and the statutory auditor shall certify the same. In such a case, the Bidder shall provide the Audited Annual Reports for 5 (five) years preceding the year for which the Audited Annual Report is not being provided.
iii. The Bidder must establish the minimum Net Worth specified in Clause 2.2.2.2 and provide details as per format at Annex-III of Appendix-IA."
83. A perusal of the above quoted Sub-Clause (ii) of Clause 2.2.2.7 of the RFP stipulates that in case the Annual Accounts for the latest financial year are not audited and therefore the bidder cannot make it available, the bidder shall give an undertaking to that effect and the Statutory Auditor shall certify the same. It is Page No.# 59/62 also the requirement that the bidder shall provide the Audited Annual Reports for five years preceding the year for which the Audited Annual Report is not being provided.
84. It is seen from Annexure-7 of WP(C) No.6625/2025 that an Undertaking was given by the Director of the Petitioner Company and certified by the Chartered Accountant. This Court can very well take judicial notice that for the purpose of filing the audited returns for the year 2024-25, the last date was 30.09.2025 and as the Petitioner's financial statement for the financial year 2024-25 was not prepared as on 27.08.2025, the Petitioner had submitted the certificate which was certified by the Chartered Accountant on 22.08.2025. Therefore, in the opinion of this Court though the Audited Annual Reports for the financial year 2024-25 was not submitted by the Petitioner but as the Petitioner had submitted the Undertaking which is Annexure-7 to the writ petition being WP(C) No.6625/2025, the Petitioner's bid could not have been rejected in terms with Clause 2.2.2.2 or Clause 3.1.6.1.(a) of the RFP.
85. This answers the sixth point for determination.
SEVENTH POINT FOR DETERMINATION:
86. The present point for determination arises on the issue as to Page No.# 60/62 whether the actions on the part of the Respondents to reject the Petitioner's Technical Bid as non-responsive constitutes malice in law. The learned Senior counsel submitted that the rejection of the Petitioner's Technical Bid in spite of the order passed by this Court on 01.09.2025 amount to malice in law. He submitted that in view of the order dated 01.09.2025, the Respondent Authorities knew that the Petitioner could not have been held to be technically non- responsive on account of Clause 2.2.2.4.iii.ii.2 of the RFP and as such the Respondent Authorities have resorted to reject the Petitioner's Technical Bid on the basis of Clause 2.2.2.2 of the RFP which under no circumstances would be applicable for rejecting the Petitioner's Technical Bid.
87. This Court finds it pertinent to observe that vide an order dated 01.09.2025, the learned Coordinate Bench of this Court in the interim directed the Respondents to consider the bid of the Petitioner which shall be subject to further orders to be passed by this Court.
88. A perusal of the order dated 01.09.2025 would not show that this Court put any restraint upon the Respondent Authorities to proceed with the evaluation of the bids submitted. The said order dated 01.09.2025 only directed that the Petitioner's bid should also Page No.# 61/62 be taken into consideration along with other bids. The Clause 2.2.2.4.iii.ii.2 of the RFP was not stayed. Under such circumstances, the Respondent Authorities considered the bid of the Petitioner as would be apparent from a perusal of the Minutes of the Technical committee as well as the observations made by the Competent Authority. It is also necessary to observe that this Court only held that the consideration shall be subject to further orders of this Court. The order dated 31.10.2025 by the learned Coordinate Bench also makes it clear that the decision to hold the Petitioner's bid as technically non-responsive would be subject to the orders passed in WP(C) No.5051/2025.
89. Under such circumstances, merely because one of the grounds of rejection being not a permissible ground, it cannot be said that the decision to hold the Petitioner non-responsive on the ground of non-compliance with Clause 2.2.2.4.iii.ii.2 of the RFP suffers from malice in law.
90. The above answers the seventh point for determination.
CONCLUSIONS:
91. Accordingly, this Court is of the opinion that both the writ petitions have to fail for which both the writ petition stands Page No.# 62/62 dismissed.
92. There shall be no order as to costs.
Bijoy Digitally signed
by Bijoy Saha JUDGE
Saha Date: 2026.02.19
10:45:21 +05'30'
Comparing Assistant