Ajay Kumar Sharma vs State Of H.P. And Others

Bipin Chander Negi, J

The respondents published a notice inviting bid on 21.5.2025 for construction of 125.00 mtr. Span Arch. Bridge at RD 42/410 on NH 154 A at place Keru, Distt. Chamba, HP alongwith Formation Cutting, Filling Protection Work, Metalling, Tarring, Road Side Drain & Road Furniture. The estimated cost of the project is Rs. 30.8586 crores and scheduled completion period is stipulated as 24 months.

In response to the said notice inviting bids, four bidders submitted their bids through the online process on 4.7.2025. The petitioner had also submitted his bid through the online process on 4.7.2025. Technical, evaluation of the bids was scheduled for 7.7.2025. As per schedule, the bids of all the bidders were technically evaluated by the evaluation committee on 7.7.2025. On technical evaluation of the bid of the petitioner, certain shortcomings were noticed. The petitioner was intimated by the respondents in this respect by way of an e-email dated 28.8.2025. In response to the e¬mail dated 28.8.2025, the petitioner submitted certain information vide e-email on 23.8.2025 and letter dated 30.8.2025.Thereafter, the meeting of the Technical Evaluation Committee was held in the office of respondent No. 2 on 11.9.2025, wherein the petitioner was held to be technically non-responsive(Annexure P-9 page 424 of the paper book).

Subsequent to the petitioner having been declared technically non-responsive, a representation was made by the petitioner vide letter dated 17.9.2025 (Annexure P-10), and the same was considered on 23.9.2025. Contentions raised in the representation were rejected, and it was reaffirmed that the bid of the petitioner was technically non-responsive. Minutes of the meeting dated 23.9.2025 in this regard have been placed on record at Page 576, Annexure R-3, appended along with the reply filed by respondents No. 1 & 2.

The rejection of the representation was communicated to the petitioner vide letter dated 13.10.2025 (Annexure P-15), Page 530 of the paper book.On the aforesaid two occasions i.e11.9.2025 and 23.9.2025 on evaluation of the bid of the petitioner he was declared as technically non-qualified in view of the provisions contained in Clause 2.2.2.2 (iii) (a) of the RFP. The same reads as follows;

2.2.2.2 Technical Capacity

(iii) For Stand-alone specialized projects:

(a) Major Bridges/ROB/Flyovers projects:

The sole Bidder or in case the Bidder being a Joint Venture, Lead member of Joint Venture shall have completed atleast one similar Major Bridge/ROB/Flyover project in the last 7. (seven) financial years preceding the Bid Due Date or till the Bid Due Date having span equal to or greater than 80% of the longest span or 100m, whichever is less of the structure proposed in this project and 40% of the length Major Bridge/ ROB/flyover or 2 km, whichever is less and also the cost of such similar project shall be alteast

(i) two similar completed works length not less than or equals to 25% each of cost of the Major Bridges/ROB/Flyovers Le

7.71 crore only (Rupees seven crore and seventy one lacs only)

Or

II. one similar completed work length not less than equals to 35% of cost of the Major Bridges/ROB/Flyovers, i.e 10.80 crore only (Rupees 10 crore and eighty lacs only)

For this purpose, a project shall be considered to be completed, if more than 90% of the value of work has been completed and such completed value of work is equal to or more than the above mentioned criteria.

Certificate(s) from the concerned client(s) shall be required for the same. In case the claimed project(s) are subcontracting/ JV project in such a case Approval from Govt. Authority/Client is required (restricted to allowable sub-contracting limit/ JV share in original contract). [D2] [Circular 29.04.2025)

Other than the petitioner, all the three bidders were declared technically qualified by the technical evaluation committee in its meeting held on 11.9.2025. The financial bids were scheduled to be opened on 23.9.2025. However, due to administrative reasons the opening of the financial bids was postponed to 21.10.2025. In the aforesaid backdrop the present writ petition has been filed wherein following reliefs have been prayed for:-

"A That an appropriate writ/order or direction may kindly be issued and the action of the respondents contained in Annexure P/15 and Annexure P/9 being arbitrary and illegal may kindly be set aside in the interest of justice.

B) That an appropriate writ/order or direction may kindly be issued to the respondents to consider the bid of the petitioner as technically qualified/responsive and further to consider the financial bid of the petitioner along with other qualified bidder for the construction of 125.00 mtr. Span Arch Bridge at RD 42/410 on NH 154 A (SH-125.00 mtr.. And any other relief which this Hon'ble Court may deem fit and proper in favour of petitioner may kindly be granted to the petitioner in the interest of justice".

In the present petition on 17.10.2025 after taking note of the specific grievance/contention of the petitioner, the following order was passed:-

"Inter-alia contends that the petitioner had bid for the 125.00 meters span Arch bridge at RD 42/410 on NH 154 A (SH-125.00 meters) and had claimed the experience of having constructed a bridge on river Beas, at HanogiKholaNala road which is stated to be 103.20 meters. The respondents however, vide communication dated 13.10.2025 (Annexure P-15) have come to the conclusion that the above experience was of 97.20 meters as per IRC-5-2015 clause 101.43. Accordingly, they have found that the requirement as such of the present bridge which was to be 80% of the longest span or 100 meters whichever is less, should be 97.90 meters and firm was found short by 0.70 meters and thus, technically non-qualified as per clause 2.2.2.2 (iii) (a). Counsel has stated that the proper span length of the work earlier awarded should have been taken into consideration.

Notice. Mr. Pranay Pratap Singh, learned Additional Advocate General, accepts notice for respondents No. 1 & 2 and Mr. Balram Sharma, learned Deputy Solicitor General of India, accepts the same for respondent No.3.

Keeping in view the above, let the financial bid of the petitioner be also considered subject to further orders. It is pointed out that Union of India has been wrongly arrayed as respondent through Engineer-cumRegional Officer and it should been arrayed as respondent as Secretary.

Ordered accordingly. Office to make necessary corrections. List on 04.11.2025."

In the case at hand "tender jurisdiction" of the High Court under Article 226 of the Constitution of India is sought to be invoked by a party dis-qualified during technical evaluation. The judicial review of such contractual matters has its own limitations. At the very outset a reference to the judgement of the apex court in Uflex Ltd. v. State of T.N., (2022) 1 SCC 165 wherein a word of caution qua interference in such matters has been pronounced would be appropriate. The relevant extract whereof reads as under:-

"The enlarged role of the Government in economic activity and its corresponding ability to give economic "largesse" was the bedrock of creating what is commonly called the "tender jurisdiction". The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India (hereinafter referred to as "the Constitution"), beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The public interest litigation ("PIL") jurisdiction is also invoked towards the same objective, an aspect normally deterred by the Court because this causes proxy litigation in purely contractual matters.

The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance.

We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, "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".

In order to demonstrate that the petitioner is technically qualified, the petitioner has attempted to interpret RFP Clause 2.2.2.2. (iii) (a) in the way and manner which suits the petitioner. Attention has also been invited to opinions sought from technical experts and placed on record by the petitioner. Suffice it to state that the author of the tender documents is the best person to understand and appreciate its requirement and interpret its documents. The same can only be interfered with when there is mala fide or perversity in the understanding or appreciation of the tender conditions. Interpretation of a tender document not acceptable to a constitutional Court per se is not a reason for interfering with the interpretation given. In this respect, reference can be made to (2016) 16 SCC 818 titled as Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and Another. Relevant para whereof reads as under:-

"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given".

Other than the aforesaid, technical evaluation or comparison by Courts is impermissible. In this respect, a reference can be made to the judgment of the Apex Court in (2016) 15 SCC 272 titled as Montecarlo Limited vs. National Thermal Power Corporation Limited. Relevant para whereof reads as under:

"24. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner's organization is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints".

Besides the aforesaid, where two interpretations are possible, the one given by the appropriate authority floating the tender is to be respected, as it is the said authority which is the best judge of its requirements. In this respect, a reference can be made to (2015) 17 SCC 804 titled as Afcons infrastructure Limited vs. Nagpur Metro Rail Corporation. Relevant extract whereof reads as follow:-.

"We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."

Moreover, Clause 2.2.2.2. (iii) (a) of the RFP is an essential condition of eligibility. With respect to the adherence to the essential conditions of the eligibility reference can gainfully be made to the pronouncement of the Apex Court in 1991 (3) SCC 273 titled as Poddar Steel Corporation vs. Ganesh Engineering Works. Relevant extract whereof reads as follow:-

"As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases."

In pursuance of the interim order dated 17.10.2025, the financial bid of the petitioner was opened. Admittedly, the petitioner was L-1. The same is evident from the comparative chart placed at Page 549 of the paper book. Admittedly, between L-1 and L-2, i.e., the petitioner and respondent No. 2 in the financial bid, there is a variance of approximately ₹2.82 crores.

Participation of the petitioner in the tender process was on account of an interim order passed by the Court. The petitioner in the case at hand did not fulfill the essential eligibility conditions and was, hence, disqualified during the technical evaluation. For the reasons detailed in paras-8 to 11 (supra), the petitioner cannot be permitted to further participate in the tender process . Reliance placed by the petitioner on M/s B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. and others, (2006) 11 SCC 548, is not tenable, as therein also it has been laid down that essential conditions stipulated in the tender must be adhered to.

In view of the above discussion, there is no merit in the writ petition. Accordingly, the same is dismissed, so also the pending miscellaneous application(s), if any.