Gauhati High Court
Page No.# 1/38 vs The State Of Assam And 4 Ors on 28 October, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/38
GAHC010228832025
2025:GAU-AS:14568
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5969/2025
M/S EMPIRE INFRA PROJECTS
REPRESENTED BY ITS PROPRIETOR YOUSUF AMANULLA CHOUDHURY,
ADDRESS- NEHARS RESIDENCY, 5TH FLOOR, HATIGAON CHARIALI, PO
AND PS HATIGAON, GUWAHATI- 38, DISTRICT KAMRUP METRO, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE SLP. COMMISSIONER AND SPL. SECRETARY,
GOVT. OF ASSAM, PUBLIC WORKS DEPARTMENT, ASSAM, SECRETARIAT,
DISPUR, GUWAHATI -6.
2:THE CHIEF ENGINEER
PWD (HEALTH AND EDUCATION)
CHANDMARI
GUWAHATI -3.
3:THE SUPERINTENDING ENGINEER
(H AND E)
PW (H AND E) DEPARTMENT
CHANDMARI
GUWAHATI -3.
4:THE EXECUTIVE ENGINEER
TB- IV (H AND E)
O/O CHIEF ENGINEER
PWD (H AND E)
ASSAM
CHANDMARI
GUWAHATI -3.
5:THE EXECUTIVE ENGINEER
Page No.# 2/38
PWD
SILCHAR
UDHARBOND
SONAI AND DHOLAI (SC) TERRITORIAL BUILDING DIVISION
SILCHAR
CACHAR
PIN- 78800
Advocate for the Petitioner : MR. I ALAM, MR. T SK
Advocate for the Respondent : SC, PWD,
Linked Case : WP(C)/5164/2025
MS RANA CONSTRUCTION AND ENGINEERS PVT LTD
SURAJ COMPLEX
ULUBARI CHARIALI
KA
RUP (M)
GUWAHATI-07
ASSAM
REP. BY ONE OF ITS DIRECTORS RANA ZAMAN
S/O. ALHAZ RAHMAN ALI
R/O. H/NO. 62
RAHMAN MANSION
SOUTH SARANIA
P/O. ULUBARI
DIST. KAMRUP (M0
ASSAM
GUWAHATI-07
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE SPECIAL COMMISSIONER AND SPECIAL SECRETARY TO THE
GOVT. OF ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI-781006.
2:THE CHIEF ENGINEER
PUBLIC (NH WORKS)WORKS DEPARTMENT
Page No.# 3/38
ASSAM
CHANDMARI
GUWAHATI-781003
3:THE BID EVALUATION COMMITTEE
REP. BY THE CHAIRMEN
OFFICE OF THE CHIEF ENGINEER
PUBLIC WORKS DEPARTMENT (NH WORKS)
ASSAM
CHANDMARI
GUWAHATI-781003
4:ABDUR REKIB
NORTH BONGAON
RANGIA
P/O. AND P/S. RANGIA
DIST. KAMRUP
ASSAM
PIN-781354.
------------
Advocate for : MR. TANUZ KASHYAP
Advocate for : SC
PWD (NH) appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/5163/2025
M/S. RANA CONSTRUCTION AND ENGINEERS PVT LTD
SURAJ COMPLEX
ULUBARI CHARIALI
KA
RUP (M)
GUWAHATI-07
ASSAM
REP. BY ONE OF ITS DIRECTORS RANA ZAMAN
S/O. ALHAZ RAHMAN ALI
R/O. H/NO. 62
RAHMAN MANSION
SOUTH SARANIA
P/O. ULUBARI
DIST. KAMRUP (M0
ASSAM
GUWAHATI-07
VERSUS
Page No.# 4/38
THE STATE OF ASSAM AND 3 ORS
REP. BY THE SPECIAL COMMISSIONER AND SPECIAL SECRETARY TO THE
GOVT. OF ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI-781006.
2:THE CHIEF ENGINEER
PUBLIC (NH WORKS)WORKS DEPARTMENT
ASSAM
CHANDMARI
GUWAHATI-781003
3:THE BID EVALUATION COMMITTEE
REP. BY THE CHAIRMEN
OFFICE OF THE CHIEF ENGINEER
PUBLIC WORKS DEPARTMENT (NH WORKS)
ASSAM
CHANDMARI
GUWAHATI-781003
4:ABDUR REKIB
NORTH BONGAON
RANGIA
P/O. AND P/S. RANGIA
DIST. KAMRUP
ASSAM
PIN-781354.
------------
Advocate for : MR. TANUZ KASHYAP
Advocate for : SC
PWD (NH) appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/5165/2025
MS RANA CONSTRUCTION AND ENGINEERS PVT LTD
SURAJ COMPLEX
ULUBARI CHARIALI
KA
RUP (M)
GUWAHATI-07
ASSAM
REP. BY ONE OF ITS DIRECTORS RANA ZAMAN
S/O. ALHAZ RAHMAN ALI
R/O. H/NO. 62
RAHMAN MANSION
SOUTH SARANIA
Page No.# 5/38
P/O. ULUBARI
DIST. KAMRUP (M0
ASSAM
GUWAHATI-07
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE SPECIAL COMMISSIONER AND SPECIAL SECRETARY TO THE
GOVT. OF ASSAM
PUBLIC WORKS (BUILDING AND NH) DEPARTMENT
DISPUR
GUWAHATI-781006.
2:THE CHIEF ENGINEER
PUBLIC (NH WORKS)WORKS DEPARTMENT
ASSAM
CHANDMARI
GUWAHATI-781003
3:THE BID EVALUATION COMMITTEE
REP. BY THE CHAIRMEN
OFFICE OF THE CHIEF ENGINEER
PUBLIC WORKS DEPARTMENT (NH WORKS)
ASSAM
CHANDMARI
GUWAHATI-781003
4:ABDUR REKIB
NORTH BONGAON
RANGIA
P/O. AND P/S. RANGIA
DIST. KAMRUP
ASSAM
PIN-781354.
------------
For the Petitioner(s) : Mr. Tanuz Kashyap, Advocate
: Mr. I. Alam, Advocate
For the Respondent(s) : Mr. B. Gogoi, Addl. AG, Assam
: Mr. A. Chakraborty, Advocate
Date of Hearing : 28.10.2025
Date of Judgment : 28.10.2025
Page No.# 6/38
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. Tanuz Kashyap, the learned counsel appearing on behalf of the Petitioner in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 and Mr. I. Alam, the learned counsel appearing on behalf of the writ petitioner in WP(C) No.5969/2025. I have also heard Mr. B. Gogoi, the learned Additional Advocate General, Assam who is also the Standing counsel of the PWD appearing on behalf of the Respondent Authorities in all the four writ petitions and Mr. A. Chakraborty, the learned counsel appearing on behalf of the Private Respondent in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025.
2. All the writ petitions are taken up together for disposal by this common judgment and order taking into account that the issues involved in all these four writ petitions are one and the same.
3. It is pertinent however to observe that the writ petition being WP(C) No.5969/2025 is in respect to a different Notice Inviting Tender but is being taken for disposal by this common judgment and order on the ground that a totally contrary stand has been taken by the PWD Authorities in respect to same issue insofar as the Petitioner is concerned in WP(C) No.5969/2025 to that of the stand taken by the PWD Authorities in the other three writ petitions.
4. At the outset, this court would first like to deal with the facts in respect Page No.# 7/38 to the three petitions being WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 as they relate to the same Notice Inviting Tender.
5. The Chief Engineer PWD, NH Works, Assam had issued a Notice Inviting Tender dated 21.06.2025 calling upon bidders for maintenance works and activities for various sections of the National Highway.
6. In WP(C) No.5163/2025, the package in question is at serial No.9 of the Notice Inviting Tender which reads as under:
Sr. Section Length (km) Estimated Cost Bid Cost of Bid Contract No. (Rs.) Security/Earnest (Non- Duration Money (1%) Refundable) (months) 9 Maintenance 26.90 Rs.2,17,38,850.00 Rs.217400.00 Rs.5000.00 (To 12 works through (Incl. 1% Labour be paid in the STMC from Km Cess & excluding Bharatkosh 54/000 to Km GST) portal) 80/900 (Doulasal to Barpeta town section) on NH-
427 (Total length
= 26.90 Km)
under PWD,
Guwahati NH
Division in the
State of Assam
7. In WP(C) No.5164/2025 the package is at Serial No. 8 of the Notice Inviting Tender which reads as under:
Sr. Section Length (km) Estimated Cost Bid Cost of Bid Contract No. (Rs.) Security/Earnest (Non- Duration Page No.# 8/38 Money (1%) Refundable) (months) 8 Short Term 49.00 Rs.3,59,96,832.00 Rs.360000.00 Rs.7200.00 (To 12 Maintenance to (Incl. 1% Labour be paid in the NH-17(New)/NH- Cess & excluding Bharatkosh 31(old) for the GST) portal) year 2025-26 from (i) Km 829/000 to Km 844/000 (length = 15.000 Km) (ii) Km 858/000 to Km 879/000 (length = 21.000 Km) and (iii) Km 888/000 to Km 901/000 (length = 13.000 Km) (total length of the project = 49.000 Km) under Abhayapuri Construction Division, Abhayapuri in the State of Assam
8. In WP(C) No.5165/2025, the package in question is at serial No. 12 of the Notice Inviting Tender which reads as under:
Sr. Section Length (km) Estimated Cost Bid Cost of Bid Contract No. (Rs.) Security/Earnest (Non- Duration Money (1%) Refundable) (months) 12 Maintenance 21.853 Rs.1,37,01,512.00 Rs.137050.00 Rs.5000.00 (To 12 works through (Incl. 1% Labour be paid in the STMC for the year Cess & excluding Bharatkosh 2025-26 from Km GST) portal) 0/000 to Km Page No.# 9/38 21/853 (Paikan to Bajengdoba section) on NH-
217 (new)/NH-51
(Old) (Total
length = 21.853
Km.) under PWD,
Guwahati NH
Division in the
State of Assam
9. This Court has duly perused the records which were produced by Mr. B. Gogoi, the learned Additional Advocate General, Assam. In respect to the package at serial No.9 of the Notice Inviting Tender which relates to WP(C) No.5163/2025, as many as four bidders submitted the bids which includes the Petitioner as well as the Respondent No.4. In respect to the package at serial No.8 which is in relation to WP(C) No.5164/2025, there were as many as 7 bidders. In respect to the package at serial No.12 which is in relation to WP(C) No.5165/2025, there were as many as 7 bidders.
10. The issue which has arisen in all the three writ petition is that the Petitioner herein who is the common writ petitioner have alleged that the private respondent's technical bid ought to have been rejected on the ground of failure to submit certificates/documents as specified in Clause 4.3.B of the Information to Bidders (for short 'ITB').
11. To further elaborate the case of the writ petitioner in all the three writ petitions, it is pertinent to take note of that Clause 4 of the ITB stipulates about the qualification of the bidder. In terms of Clause 4.1 of the ITB, it was mandated that all bidders shall furnish the information and documents with Page No.# 10/38 their bids in Section 3, Qualification Information unless otherwise stated in the Appendix to the ITB. Clause 4.3.A of the ITB stipulates that to qualify for award of the contract, each bidder in its name should have achieved the minimum average annual financial turnover (in all classes of civil engineering, construction and maintenance works only) equal to the amount indicated in the NIT during the last three years ending 31 st March of the previous financial year duly certified by the Chartered Accountant and have satisfactorily completed at least one contract of highway i.e. NH/SH work (not less than 90% of the contract value) as a prime contractor or as a partner of JV for similar works during the last five years ending last day of the month previous to the one to which the bids are invited in the manner stipulated in Sub-Clauses (i) to (iv) of Clause 4.3.A of the ITB.
12. Clause 4.3.A.(b) further stipulates as to how the escalation factors would be used to bring the value of completed work to the level of the current financial year and in order to do so, a multiplication factor have been mentioned whereby the multiplication factor increases with each passing year viz. for 2024-2025, the multiplication factor is 1.1 and in respect to year 2023-24, the multiplication factor is 1.21, etc.
13. Clause 4.3.B(a) is of relevance and the same is reproduced herein under:
"4.3.B (a) Each bidder must upload the scanned copies of following documents along with the submission of online bid:
(i) An affidavit on a Stamp Paper, duly attested from the Notary Public, Page No.# 11/38 that the Information furnished with the bid documents is correct in all respects; and
(ii) Such other certificates as defined in Section-3.
Failure to submit the certificates/documents as specified above shall make the bid non responsive.
14. In terms with the above quoted Clause, it would be seen that each bidder must upload the scanned copies of the documents mentioned in Sub- Clauses (i) and (ii) of Clause 4.3.B(a) along with the submission of the online bid. The documents required to be uploaded are affidavit on a Stamp Paper duly attested from the Notary Public that the information furnished with the bid documents is correct in all respects and such other certificates as defined in Section 3. It is further mandated in the said Clause itself that failure to submit the certificates/documents as specified in Sub-Clauses (i) and (ii) of Clause 4.3.B of the ITB shall make the bid non-responsive.
15. Clause 4.4 of the ITB is reproduced herein under:
"4.4 Bidders who meet the minimum qualification criteria will be qualified only if their available bid capacity is more than the total bid value. The available bid capacity will be calculated as under:
Available Bid capacity = (A*N*2.5-B) Where.
A = Maximum value of civil engineering works executed in any one year during the last three years (escalation factor as specified in this section shall Page No.# 12/38 be used to bring the maximum value of civil engineering works to the level of current financial year i.e., 2025-26) taking into account the completed as well as works in progress.
N = Number of years prescribed for completion of the works for which bid is invited.
B = Value (escalation factor as specified in this section shall be used to bring the value to the level of current financial year i.e., 2025-26) of existing commitments and on-going works to be completed during the next 1 years (period of completion of the works for which bid is invited.)"
16. From a perusal of the above quoted Clause would show as to how the Available Bid Capacity would be arrived at for the purpose of determination of the eligibility. It is very pertinent to take note of that while calculating the Available Bid Capacity, three factors are required to be taken note of. First is the maximum value of the Civil Engineering Works executed in any one year during the last three years by applying the escalation factor as specified in Clause 4.3.A.(b) to bring the value of the completed works to the level of the current financial year i.e. 2025-26. The second is the value of the existing commitments and ongoing works to be completed during the next one year (period of completion of works for which the bid is invited). The third being the number of years for completion of the works for which the bid is invited. It is therefore seen from a conjoint reading of the above mentioned Clauses that in order to grant a contract to a particular bidder, there is a requirement to arrive at the Available Bid Capacity and in order to arrive at the Available Bid Capacity in the manner stipulated in Clause 4.4 of the ITB, the fact that there is an existing commitments and ongoing works are therefore required Page No.# 13/38 to be disclosed. In other words, without the disclosure of the existing commitments and ongoing works, the Available Bid Capacity cannot be correctly arrived at or if arrived at, would be contrary to the mandate of Clause 4.4 of the ITB.
17. This Court further finds it pertinent to take note of Clause 4.5 of the ITB wherein it is mentioned that even if the bidders meet the qualifying criteria, the bidders are subject to be disqualified under certain conditions. The conditions are enumerated in Sub-Clauses (i) and (ii) of Clause 4.5 of the ITB. In terms with Sub-Clause (i), if a bidder had made misleading or false representation in the forms, statements, affidavits and attachments submitted in proof and in Sub-Clause (ii), the record of poor performance such as abandoning the works, not properly completing the contract, inordinate delay in completion, litigation history, or financial failures etc, or debarring from work etc. In other words, the Tendering Authority had made it clear that if a misleading or false representation is given in the forms or in the affidavit, the Bidder would be disqualified.
18. Clause 34 of the ITB relates to stipulations as regards corrupt and fraudulent practices. In terms with Clause 34.3(b), fraudulent practice have been defined to mean a misrepresentation or omission of acts or suppression of acts or disclosure of incomplete facts in order to influence the bidding process.
19. In the backdrop of the provisions in the ITB as mentioned hereinabove, it is pertinent to take note of Section 3 of the Bid Document Page No.# 14/38 which relates to Qualification Information. Section 3 of the Bid Document relates to information to be filled in by the bidder in terms with Section 3 and documents submitted in physical form will be used for the purpose of post qualification as provided for in Clause 4 of the ITB.
20. Taking into account the issue involved, this Court finds it pertinent to take note of Clause 1.4.(b) of Section 3 of the Bid Document. The entire clause having relevance is reproduced herein under.
"1.4(b) Information on Bid Capacity (works for which bids have been submitted and accepted and works which are yet to be completed) as on the date 7 days before the last date for bid submission (as per Clause 4.4 of the ITB)
(i) Existing commitments and on-going works (B) Description Place Contract Name and Value of Stipulated Value of Escalation Anticipated Escalated valve of work & No. Address of Contract period of works Factor date of of remaining State Employer (Rs. Cr.) completion remaining completion work during to be completion completed period of work (Rs. Cr.) for which bids are invited 1 2 3 4 5 6 7 8 9 10 * Upload certificate(s) from the Engineer(s)-in-Charge of the rank of Executive Engineer or equivalent & also supply original or certified copy of certificate in Page No.# 15/38 physical form envelope.
(ii) Details of works for which bid submitted and accepted (i.e. where contract signing is pending) Descriptio Place and Name & Date of issue Value given in Stipulated Value of work n of State Address of of Letter of LOA period for during works Employer Acceptance completion completion (LOA)* period of work for which bids are invited 1 2 3 4 5 6 7 * Upload copy of LOA
(iii) Bid Capacity (Bidder shall calculate, mention his bid capacity and enclose the supporting calculation) A = Rs....... Lakh (enclose the details) N = ........years B = Rs........lakh (enclose the details) Available bid capacity = A x N x 2.5 - B = Rs.........lakhs"
21. From the above quoted Clause, it would be seen that in terms with Sub-Clause (i) of Clause 1.4(b) of Section 3 of the Bid Document, there is a Page No.# 16/38 requirement of furnishing information as regards the existing commitments and ongoing works in the manner stipulated therein. It further mentions that there is a further requirement of uploading certificates from the Engineer in Charge of the rank of Executive Engineer or equivalent and also supply original or certified copy of certificates in the physical form envelope. Sub- Clause (ii) of Clause 1.4(b) of Section 3 of the Bid Document refers to the details of works where bids have been submitted and accepted i.e. where contract signing is pending. It further mentions that where LOA has been issued, such LOA has to be uploaded. Sub-Clause (iii) of Clause 1.4(b) of Section 3 of the Bid Document mentions the formula by which the Available Bid Capacity is to be calculated. The pertinent aspect being that if there is an existing commitments and ongoing work or when the bid has been submitted and accepted, the same has to be duly mentioned for the purpose of ascertaining the Available Bid Capacity.
22. The admitted materials on record show that the private respondent in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 while submitting the bid neither disclosed about any existing commitments nor provided the certificate from the Engineer in Charge though admittedly on 30.04.2025, the Chief Engineer PWD, (NH Works), Assam had issued a notice to proceed with the work to the Private Respondent for construction of Inspection Bungalow cum Conference Hall (G+1) at Mangaldoi Bypass under the contingency provision of Job No.15/AS/2021-22/234 under PWD Rangia NH Division, Rangia in the State of Assam at a contract price of Rs.46,49,000/-.
Page No.# 17/38
23. This Court further duly takes note of that the Petitioner in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 on coming to learn that the Private Respondent did not disclose about the aforesaid existing commitments, submitted objections before the Tender Evaluating Committee. The Respondent Authorities did not go into the said aspect which was objected but rejected the Petitioner's objections on the ground that the Petitioner did not submit the objection within 7 (seven) days, and it is under such circumstances, the three writ petitions have been filed by the Petitioner before this Court.
24. The materials on record show that this Court vide order dated 05.09.2025 while issuing notice, directed that no Letter of Acceptance shall be issued to the Private Respondent in all the three petitions. The interim orders thereupon have been continued.
25. The records reveal that the official Respondents have filed their affidavit-in-opposition in the three writ petitions wherein the Respondent Authorities justified such stand on the ground that though the Respondent Authorities were not disclosed of the existing commitments of the Private Respondent but on coming to learn from the objections so filed by the Petitioner, they made an assessment and found out that even if the Private Respondent has not disclosed the information as required as per the terms of the tender documents but it would not have materially affected the Available Bid Capacity. Further to that, it was also mentioned that the Private Respondent had quoted a lesser price to that of the Petitioner in all the three bids and as such, it would be in public interest that the Respondent Page No.# 18/38 Authorities be permitted to allocate the contracts in question in favour of the Private Respondent. The Private Respondent however has not filed any affidavit-in-opposition in support of his case.
26. Before continuing further, it is apposite to mention that both the Petitioner and the Private Respondent have quoted rates below the contract value and difference of the financial bids between the two were minimal.
27. At this juncture, this Court now finds it relevant to take note of the facts in the case of the writ petitioner in WP(C) No.5969/2025. This is a case where the Respondent PWD had taken a 180 degree somersault to the stand taken in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025. In the instant case, the Chief Engineer, PWD (Health and Education) had issued a detailed Notice Inviting Tender dated 04.07.2025 thereby calling from bidders for the purpose of carrying out the balance work of construction of the Model Secondary School in Tea Garden Areas of Assam under RIDF-XXVIII at Arkatipur Tea Estate in the District of Cachar. The Petitioner herein along with four others participated in the said bid process. It was found during the technical evaluation that out of the five bidders, three were technically non-responsive and the Petitioner along with one M/s M.P. Enterprise were held to be technically responsive in terms of the evaluation carried out on 16.08.2025 and uploaded on 21.08.2025.
28. Pursuant thereto, on 18.08.2025, it was intimated to all concerned that the Petitioner along with one M/s M.P. Enterprise were found technically responsive and their financial bids would be opened on 21.08.2025. Upon Page No.# 19/38 opening of the financial bid, it was found that the Petitioner herein was the lowest bidder having quoted Rs.2,51,84,439.99p whereas the other bidder namely M/s M.P. Enterprise quoted Rs.2,60,56,100/-.
29. After almost one month, the Petitioner was issued a notice on 15.09.2025 asking the Petitioner to submit a detailed justification regarding suppression of ongoing works submitted in the technical bid document for the work in question and the Petitioner was asked to submit the reply within three days. The Petitioner thereupon on 16.09.2025, submitted a reply stating inter alia that the 2 nd work relating to the construction of the Janata College, Cachar allotted to his firm on 16.06.2025 is yet to have any physical progress and was running through various uncertainties. It was further mentioned that on account of the uncertainties, the Petitioner was not in a position to ascertain whether the work would be completed or cancelled. Under such circumstances, the Petitioner did not disclose about the said work as an existing commitments.
30. It appears that the Respondent Authorities did not find the Petitioner's explanation satisfactory and consequently cancelled the entire tender process vide the communication dated 06.10.2025 which is the subject matter of the present challenge. The petitioner further assailed the retender notice dated 07.10.2025 issued in the English Daily, Assam Tribune dated 07.10.2025 in the present writ proceedings.
31. This writ petition was taken up for motion on 27.10.2025 and taking into consideration the similarity in the issues, the instant writ petition was Page No.# 20/38 directed to be listed today along with WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025.
SUBMISSION MADE BY THE LEARNED COUNSELS FOR THE PARTIES:
32. Mr. Tanuz Kashyap, the learned counsel appearing on behalf of the Petitioner in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 submitted that in terms of Clause 4.3.B of the ITB read with Section 3 of the Bid Document, the technical bid of the Private Respondent ought to have been rejected on the ground of non-disclosure of the contract pertaining to the construction of the Inspection Bungalow cum Conference Hall (G+1) at Mangaldoi Bypass issued by the same authority. The learned counsel submitted that without the disclosure of the existing commitments, the Available Bid Capacity cannot be ascertained and in the instant case, had the Petitioner not intimated by raising objections, the Respondent Authorities would not have known of the existing commitments of the private Respondents. The learned counsel submitted that when the same authority had granted the contract for construction of the Inspection Bungalow at Mangaldoi, it is surprising as to how the said authority was not aware of the said existing commitments inasmuch as, the same authority had issued the notice to proceed. The learned counsel further submitted that the Respondent Authorities for reasons best known are trying their best to grant the contract to the Private Respondent and this aspect of the matter can be seen from the fact that a plea has been adopted to reject the objections on the ground that the Petitioner did not object within 7 (seven) days from the date of opening the technical bid. The plea so taken now that the Private Page No.# 21/38 Respondent after taking the existing commitments then also meets the Available Bid Capacity is an afterthought. The learned counsel further submitted that this is a case which will come within the ambit of fraudulent practice adopted by the Private Respondent having not disclosed vital documents which should have been disclosed for ascertaining what was the Available Bid Capacity. He therefore submitted that the rejection of the objections raised by the Petitioner itself amounts to malice in law for which the impugned actions on the part of the Respondent Authorities are required to be interfered with.
33. Mr. I. Alam the learned counsel who represents the Petitioner in WP(C) No.5969/2025 submitted that what was required in terms with Clause 4.7 of the Bid Document is the value of the existing commitments and ongoing works to be completed during the next 24 months. The Petitioner in terms of Section 2 of the Bid Document had duly mentioned the work which the Petitioner had ascertained would be completed within the next 24 months and had intentionally not mentioned the other work pertaining to construction of the Girls Hostel (G+2) at Janata College, Kabuganj on the ground that there was no certainty that the work would be completed within 24 months. The learned counsel submitted that though the Petitioner had been issued a notice to proceed dated 16.06.2025 in respect to the said work, but the physical progress of the said work have not been started on the ground of non-finalization of the architectural drawings and the site had not been handed over. The learned counsel further submitted that the Respondents herein were very much aware of this contract and then also had held that the Petitioner was technically responsive in terms with the Page No.# 22/38 technical evaluation carried out on 16.08.2025 which was subsequently uploaded on 21.08.2025. The learned counsel further submitted that thereupon also, the Respondent Authorities did not receive any objections from any quarters and opened the financial bid. The learned counsel submitted that on coming to learn that the Petitioner was the lowest bidder, these steps are being taken now almost after one month by issuance of a communication on 15.09.2025 alleging suppression of existing commitments. The learned counsel further submitted that when there was a notice being given asking the Petitioner to submit a reply, it was incumbent upon the Respondents to pass an order rather than go ahead with the cancellation of the tender and issuance of fresh tender.
34. Mr. B. Gogoi, the learned Additional Advocate General appearing on behalf of the Respondents submitted that though the WP(C) No.5163/2025, WP(C) No.5164/2025, WP(C) No.5165/2025 and WP(C) No.5969/2025 have been taken up together but the tendering authority in the case of WP(C) No.5163/2025, WP(C) No.5164/2025, WP(C) No.5165/2025 and WP(C) No.5969/2025 are different. He therefore submitted that each tendering authority has a different perspective while analyzing the terms and conditions of the Notice Inviting Tender. The learned Additional Advocate General, Assam further submitted that the Petitioner in the three writ petitions could not have filed the instant writ petitions agitating the grievance as regards the technical responsiveness of the Private Respondent on the ground that the objection was not filed within the period as stipulated in Clause 23.5 of the ITB. The learned Additional Advocate General, Assam further submitted that even assuming for argument sake, the Petitioner can Page No.# 23/38 be said to be personally aggrieved, then also the non-disclosure of the existing commitments by the Private Respondent did not materially change the Available Bid Capacity and as such, would not result in any difference had the Private Respondent even had disclosed the existing commitments.
Insofar as the other writ petition being WP(C) No.5969/2025 is concerned, the learned Additional Advocate General referring to Annexures 10 and 11 of the writ petition and submitted that the Petitioner herein having been issued a Letter of Acceptance and the notice to proceed with the work even prior to the submission of the tender on 28.07.2025, the non- mentioning of this existing commitments amounts to infraction to the mandate of Clause 4.7 of the ITB read with Section 2 of the Bid Document. He submitted that the non-disclosure of the existing commitments of the Petitioner amounts to suppression of material facts for which the Respondent Authorities have rightly rejected the explanation and gone ahead with a fresh tender process.
35. Mr. A. Chakraborty, the learned counsel who represents the Private Respondents in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 submitted that while submitting the bids, it completely escaped the attention of the Respondent No.4 about the contract pertaining to the construction of the Inspection Bungalow cum Conference Hall at Mangaldoi. He however submitted that this non-submission of the said would not have materially impacted the available big capacity inasmuch as the Available Bid Capacity of the Private Respondent was around Rs.41,00,00,000/- in terms with the formula mentioned in Clause 4.4 of the Page No.# 24/38 ITB and even subtracting the amount pertaining to the contract for construction of the Inspection Bungalow cum Conference Hall, the Private Respondents still could have more than Rs.40,00,00,000/-. He therefore submitted that as the Private Respondent is the lowest bidder, the question of interference with the tender process should not be made.
ANALYSIS AND DETERMINATION:
36. I have heard the learned counsels appearing on behalf of the parties and have given my anxious consideration to the materials on record including the records produced by the State Respondents in respect to all the packages.
37. In respect to the Notice Inviting Tender dated 21.06.2025 which is the subject matter of the three writ petitions being WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025, it is seen that the Private Respondent herein admittedly did not disclose the existing commitments. This Court also perused the records which have been produced by the learned Additional Advocate General in respect to the three packages which is the subject matter of the three writ petitions. In the technical evaluation so carried out, it is further seen that the tendering authority while arriving at the Available Bid Capacity did not take into account the existing commitments of the Private Respondent and it was only after the objections having been raised by the Petitioner about non-compliance with Clause 4.3B of the ITB read with Section 3 of the Bid Document that the Respondent Authorities took into consideration that the Private Respondent did not disclose the existing commitments.
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38. This Court further finds it very relevant to observe that on one hand, the Additional Advocate General appearing on behalf of the PWD Authorities posited that the Petitioner in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 could not have assailed the technical responsiveness of the Private Respondent on the ground that the Petitioner did not object within 7 (seven) days but on the other hand, the PWD Authority have deprived the Petitioner in WP(C) No.5969/2025 on the ground of not disclosing the second existing commitments. This Court further finds it very pertinent to observe that Clause 4.4 of the ITB of the Notice Inviting Tender dated 21.06.2025 and Clause 4.7 of the Notice Inviting Tender dated 24.06.2025 appears to be pari materia except the fact that in Clause 4.4 of the ITB in respect to the NIT dated 21.06.2025, the multiplication factor is 2.5, whereas in Clause 4.7 of the ITB of the Notice Inviting Tender dated 24.06.2025 the multiplication factor is 2.
39. The materials on record show that in the case of the Petitioner in WP(C) No. 5969/2025, even if the contract value of both the existing commitments are taken, then also the Petitioner has the Available Bid Capacity.
The above aspects therefore show that the same Department i.e. the PWD in its different Branches while applying the same conditions have used different yardsticks.
40. It may not be out of place now to further take note of Clause 4.3B of the ITB of the Notice Inviting Tender dated 21.06.2025 which categorically Page No.# 26/38 mandates that if the documents which are required to be submitted in terms with Section 3 of the bid document is not submitted, the bid would be non- responsive. Further to that, a perusal of Clause 1.4(b)(i) of Section 3 of the Bid Document in respect to the Notice Inviting Tender dated 21.06.2025 also mandates that the certificates from the Engineer In-charge of the rank of Executive Engineer or equivalent and also supply of original or certified copy of the certificate in physical form envelope is a requirement.
41. The question therefore arises as to whether this Court should exercise its powers of judicial review in the present facts of the cases.
42. In the case of Chief Constable of North Wales Police Vs. Evans reported in (1982) 3 All England Reports 141, the House of Lords observed that 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 authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court.
43. The Supreme Court in the case of Sterling Computers Limited Vs. M/s M&N Publications Limited and Others reported in (1993) 1 SCC 445 observed that if the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available, taking into account the interest of the State and the public, then the Court cannot act as an Appellate Authority by substituting its opinion in respect of selections made for entering into such contracts. The Supreme Court further observed in the said decision that once Page No.# 27/38 the procedure adopted by an Authority for the purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution of India, the Courts cannot ignore such actions saying that authorities concerned must have some latitude or liberty in contractual matters and any interference by the Court amounts to encroachment on the exclusive rights of the Executive to take such decisions.
44. In the case of B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. and Others reported in (2006) 11 SCC 548, the Supreme Court summarized the scope of judicial review and interference of the Superior Courts in matters of award of contracts. Paragraph Nos. 65 and 66 of the said judgment being relevant are reproduced herein under:
"65. We are not oblivious of the expansive role of the superior courts in judicial review.
66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarized as under:
(i) if there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be Page No.# 28/38 existing;
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
(vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;
(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint."
45. This Court also finds it pertinent to take note of the observations of the Supreme Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India and Others reported in (1979) 3 SCC 489 wherein the Supreme Court observed in unequivocal terms that the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance.
Page No.# 29/38
46. In the case of Municipal Corporation, Ujjain and Another Vs. BVG India Limited and Others reported in (2018) 5 SCC 462, the Supreme Court inter alia was dealing with the issue pertaining to the responsiveness to the tender and submissions. In the said case, the Respondent No.1 left out the column pertaining to information to be provided as regards issuance of show cause notice(s) blank. The Respondent No.1's bid was accordingly evaluated with 5 marks which was however increased by the learned High Court to 10. The Supreme Court while adjudicating the said issue observed that when in the tender, it was clearly stated that the tenderer was required to reveal the Show Cause Notices issued against it and despite the specific column pertaining to the same in the bid document, the Respondent No.1 kept it blank, the concerned tendering authorities were justified in awarding 5 marks and the learned High Court was not justified in increasing the marks to 10. Paragraph Nos. 55 and 56 being relevant is reproduced herein under:
"55. The technical expert, after an objective evaluation of the tender submitted by BVG India Limited, observed that BVG India Limited fell under the "average category". It noted thus:
(vi) Responsiveness to tender and submissions:
The tender submission by M/s BVG India is very poor, leaving many annexures unfilled up and referring as "information given separately". Not filling up even statutory and financial information in the prescribed formats.
Suppression of information regarding litigations (Annex.13) and track record of performance (Annex. 12). Casualness in description of approach and methodology. In view of the above, the tender gets marks for Average Page No.# 30/38 category i.e. 5.00 marks.
56. It was clearly stated in the NIT that the tenderer was required to reveal the show-cause notices against it. Despite the specific column pertaining to the same in the bid document, Respondent 1 had left the said column blank. Once there is a specific clause requiring the mentioning of the show-cause notices for the breach of contract, it was incumbent upon the tenderer to provide accurate information. As Respondent 1 has not done so, and has suppressed vital information, Respondent 2 has rightly allotted it 5 marks for the same. As mentioned supra, Respondent No.1 submitted an experience certificate issued by the PCMC in favour of one M/s BVG Kshitij Waste Management Services Pvt. Ltd.
No material is produced before the Court to show that M/s BVG Kshitij Waste Management Services Pvt. Ltd. is the same as BVG India Limited or that it is a consortium member. In light of specific averment in the bid document by Respondent 1 that there is no other consortium member which has participated in the tender process along with BVG India Limited, the experience certificate issued in favour of BVG Kshitij Waste Management Services Pvt. Ltd. cannot be relied upon to fulfil the eligibility criteria by BVG India Limited."
47. In the backdrop of the settled position of law, it is pertinent to observe that Clause 4.3B of the Instruction to the Bidders of the Notice Inviting Tender dated 21.06.2025 categorically mandated that there is a requirement for filing an affidavit in a stamp paper that the information furnished with the bid document is correct in all respects and also to enclose the certificates as defined in Section 3 of the Bid Document. It is also stipulated that the failure to submit the certificates/documents as specified shall make the bid non- responsive.
48. The Private Respondent had submitted the Bid Documents in respect Page No.# 31/38 to all the three packages without disclosing about the existing commitments regarding construction of the Inspection Bungalow cum Conference Hall (G+1) at Mangaldoi Bypass under contingency provision of Job No.15/AS/2021-22/234 under PWD Rangia NH Division Rangia in the State of Assam. There was also no disclosure of the same in the affidavit so filed. In the previous segments of this judgment, this Court had quoted Clause 1.4(b) of Section 3 to the Bid Document. A specific format have been prescribed for providing the information and the Private Respondent for reasons best known chose not to fill up the same. In this connection, if this Court now takes note of the judgment of the Supreme Court in the case of Municipal Corporation, Ujjain (supra) and the principles laid down therein and applying to the facts of the present case, it would be seen that when the bid documents categorically made it clear to provide such information in terms with Clause 4.3B of the ITB and that too by filing an affidavit and in the form mentioned in Clause 1.4(b) of Section 3 of the Bid Document, the Respondents upon coming to learn about such non-disclosure of the existing commitments as well as not providing the certificate from the Engineer In- charge along with the documents ought to have rejected the bid of the Private Respondent in all the three packages.
49. This Court have duly perused the records as was produced by Mr. B. Gogoi, the learned Additional Advocate General wherein, in the technical evaluation, it is being seen that while arriving at the value pertaining to the Available Bid Capacity, the existing commitments of the Private Respondent was not taken into consideration and in fact, this aspect is apparent from the very stand of the Respondent Authorities that they were not aware of till the Page No.# 32/38 Petitioner submitted the objection. It therefore appears that the reason for evaluating the Private Respondent as technically responsive was without consideration that the Private Respondent did not disclose the existing commitments. The present stand taken that even by taking the existing commitments of the Private Respondent, the said Respondent has the Available Bid Capacity is nothing but an afterthought thereby clearly brushing aside the terms of the tender document i.e. Clause 4.3B of the ITB and Clause 1.4(b) of Section 3 of the Bid Document. The Respondent Authorities further did not take into account the incorrect statement/representation made in the affidavit filed by the Private Respondent. It is also seen from the records that it is only before this Court that the Respondents have taken the stand that even if the existing commitments are taken then also the Private Respondent has the Available Bid Capacity. But the question is whether such actions on the part of the Respondent Authorities can be said to be fair and transparent.
50. This Court further takes note of the submission made by Mr. B. Gogoi, the learned Additional Advocate General as well as Mr. A. Chakraborty, the learned counsel who represents the Private Respondent that even if the said existing commitments would have been taken into consideration, then also the Private Respondent would have had the Available Bid Capacity. As stated above, this plea is not a part of the decision making process to hold the Private Respondent technically responsive. It is a plea taken before this Court. The rejection of the Petitioner's objection vide the communication dated 02.09.2025 also do not disclose such plea.
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51. Now let this Court further analyze the conduct of the Respondent PWD Authority by taking into account the facts in WP(C) No.5969/2025. In this case, it would be seen that the Petitioner was held to be technically responsive on 16.08.2025 and thereupon, the financial bids of the Petitioner along with another were opened. It was found that the Petitioner was the lowest bidder on 21.08.2025. No objections were raised by any bidder as would be seen from the records as regards the non-disclosure of the existing commitments by the Petitioner herein. However, on 15.09.2025, the Respondent PWD Authorities had raised the issue pertaining to suppression of the existing contract and thereupon cancelled the entire tender process.
52. Fairness and transparency in action are hallmarks of Article 14 of the Constitution guaranteeing equality before law and equal protection of law. The State cannot arbitrarily at its sweet will act. They are required to maintain certain standard as the State is a trustee of the public. When the State professes certain norms to be followed while inviting bids, the said norms are required to be followed and if deviated, such deviation should not affect the fairness or equality amongst bidders thereby giving undue advantage to one bidder over another. If such actions are resorted, it would affect the level playing field which would also infringe Article 14 of the Constitution.
53. Coming back to the facts, it would be seen that in the writ petitions being WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025, the terms contained in the Notice Inviting Tender dated 21.06.2025 have been flouted by the Respondent Authorities in order to accommodate the Page No.# 34/38 Private Respondent. However, in respect to a similar issue which is the subject matter of WP(C) No.5969/2025, the Respondents in the PWD had resorted to a contrary stand. The submission made by the Additional Advocate General that both are different offices under the PWD for which different yardsticks are applied does not appeal to this Court inasmuch as it is the general principle of law that no deviation is permissible to the express terms of the contract especially when those terms form the basis of equality amongst the bidders.
54. Another aspect which requires to be addressed is the submission that the private Respondent in the three writ petitions have quoted lower bid and as it would not be in the public interest to interfere. The said submission is misconceived for two reasons. First a technically non-responsive bidder's financial bid has no value and secondly, the bids amongst the Petitioner and Private Respondents were far below the contract value fixed by the PWD Authorities and difference between the Petitioner and the Private Respondent was minimal. Apart from that, if the money was the sole criterion dehors the requirement for fulfilling the conditions, the Petitioner's bid in WP(C) No.5969/2025 was lowest but then also the Respondent PWD Authorities cancelled the tender process and initiated fresh tender process.
55. From the above analysis, it is seen that the actions on the part of the PWD Authority to hold the Private Respondent in WP(C) No.5163/2025, WP(C) No.5164/2025 and WP(C) No.5165/2025 as technically responsive even after coming to learn about non-disclosure therefore smacks of arbitrariness, violates the mandate of fair treatment and thereby infringes Page No.# 35/38 Article 14 of the Constitution.
56. This Court further is of the view that the Petitioner in WP(C) No.5969/2025 having not disclosed all its existing commitments i.e. the contract pertaining to construction of Girls Hostel (G+2) at Janata College, Kabuganj have also violated the terms of Clause 4.7 of the ITB of the Notice Inviting Tender dated 24.06.2025 and as such, it is therefore the opinion of this Court that the Respondent Authorities were therefore justified in rejecting the bid of the petitioner in WP(C) No.5969/2025 and going for fresh tender.
CONCLUSION:
57. Accordingly all these four petition stands disposed of with the following observations and directions.
WP(C) No.5163/2025:
(i) The decision of the Technical Evaluation Committee dated 19.08.2025 to hold the Private Respondent No.4 as technically responsive in respect to the contract for maintenance works through STMC from Km 54/000 to Km 80/900 (Doulasal to Barpeta town section) on NH-427 (Total length = 26.90 Km) under PWD, Guwahati NH Division in the State of Assam is set aside and quashed.
(ii) The decision of the Bid Evaluation Committee dated 26.08.2025 Page No.# 36/38 wherein the bid of the Respondent No.4 was evaluated as L1 bid for the work maintenance works through STMC from Km 54/000 to Km 80/900 (Doulasal to Barpeta town section) on NH-427 (Total length = 26.90 Km) under PWD, Guwahati NH Division in the State of Assam is set aside and quashed.
(iii) The Respondents Authorities are given the liberty to take such course of action as deem fit in accordance with law.
WP(C) No.5164/2025:
(i) The decision of the Technical Evaluation Committee dated 19.08.2025 to hold the private Respondent No.4 as technically responsive in respect to the contract for Short Term Maintenance to NH-17(New)/NH-31(Old) for the year 2025-26 from (i) Km 829/000 to Km 844/000 (length = 15.000 Km) (ii) Km 858/000 to Km 879/000 (length = 21.000 Km) and (iii) Km 888/000 to Km 901/000 (length = 13.000 Km) (total length of the project = 49.000 Km) under Abhayapuri Construction Division, Abhayapuri in the State of Assam is set aside and quashed.
(ii) The decision of the Bid Evaluation Committee dated 26.08.2025 wherein the bid of the Respondent No.4 was evaluated as L1 bid for the work Short Term Maintenance to NH-17(New)/NH-31(Old) for the year 2025-26 from (i) Km 829/000 to Km 844/000 (length = 15.000 Km) (ii) Km 858/000 Page No.# 37/38 to Km 879/000 (length = 21.000 Km) and (iii) Km 888/000 to Km 901/000 (length = 13.000 Km) (total length of the project = 49.000 Km) under Abhayapuri Construction Division, Abhayapuri in the State of Assam is set aside and quashed.
(iii) The Respondents Authorities are given the liberty to take such course of action as deem fit in accordance with law.
WP(C) No.5165/2025:
(i) The decision of the technical evaluation committee dated 19.08.2025 to hold the private Respondent No.4 as technically responsive in respect to the contract for maintenance works through STMC for the year 2025-26 from Km 0/000 to Km 21/853 (Paikan to Bajengdoba section) on NH-217 (new)/NH-
51 (Old) (Total length = 21.853 Km.) under PWD, Guwahati NH Division in the State of Assam is set aside and quashed.
(ii) The decision of the Bid Evaluation Committee dated 26.08.2025 wherein the bid of the Respondent No.4 was evaluated as L1 bid for the work maintenance works through STMC for the year 2025-26 from Km 0/000 to Km 21/853 (Paikan to Bajengdoba section) on NH-217 (new)/NH-51 (Old) (Total length = 21.853 Km.) under PWD, Guwahati NH Division in the State of Assam is set aside and quashed.
(iii) The Respondents Authorities are given the liberty to take Page No.# 38/38 such course of action as deem fit in accordance with law.
WP(C) No.5969/2025:
(i) This Court does not find any merit in the writ petition for which the writ petition stands dismissed.
58. The records so produced are returned.
JUDGE Comparing Assistant