Patna High Court
M/s Anirudh Sarswati ConstructionversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The Court set aside the technical qualification and financial bid decisions of respondent No.8, holding that the mandatory payment‑certificate requirement could not be waived and the authority’s actions were arbitrary.
Summary
The petitioner, M/s Anirudh Saraswati Construction, challenged the technical and financial bid decisions of the Rural Works Department that declared private respondent M/s R.K. Construction as technically qualified and as the lowest bidder (L1) for a government road project. The petitioner argued that R.K. Construction failed to submit the mandatory payment certificate required under Clause 4.4A(a) of the Combined Model Bidding Document (CMBD), a defect that could not be cured after the bid deadline. The Court examined the CMBD provisions, particularly Clauses 24.1‑24.4 (which prohibit post‑submission rectification of material defects) and Clause 25.1 (which only permits correction of non‑material deficiencies). Relying on precedents such as Central Coalfields Ltd. v. SLL‑SML, Banshidhar Construction v. Bharat Coking Coal Ltd., and W.B. State Electricity Board v. Patel Engineering, the Court held that the mandatory clause was not complied with and the authority could not relax it. Consequently, the Court set aside both the technical qualification and the financial bid decision in favour of R.K. Construction and allowed the writ petition.
Issues considered
- Whether a mandatory condition stipulated in a tender document can be waived or relaxed by the authority after bid submission.
- Whether Clause 25.1 of the CMBD permits curing a fundamental defect such as non‑submission of a mandatory payment certificate.
- Whether the technical qualification of respondent No.8 should be set aside for failure to submit the required payment certificate.
- Whether the financial bid decision declaring respondent No.8 as L1 is vitiated by the technical non‑compliance.
- Whether the writ remedies of certiorari and mandamus are appropriate in the present circumstances.
Subjects
- tender evaluation
- technical qualification
- mandatory document
- CMBD
- substantially responsive bid
- Article 14
- procurement law
- certiorari
- mandamus
- public works
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.883 of 2026
======================================================
M/s Anirudh Sarswati Construction a Partnership Firm, having its Office At
Azad Nagar (Sarswati Sadan), Ward No. 09, Madhepura, Bihar- 852113,
through its Partner, namely, Arvind Kumar, aged about 56 years (Male), Son
of Anirudh Prasad Yadav, Resident of Villajge- Sahugadh-2 Bhatu Tola, Ward
No. 7, Madhepura, P.O. and P.S. and District- Madhepura, Bihar- 852113.
... ... Petitioner
Versus
1. The State of Bihar through the Additional Chief Secretary, Rural Works
Department, Government of Bihar, 5th Floor, Visvesvaraya Bhawan, Nehru
Path, Patna, Bihar 800015.
2. The Additional Chief Secretary, Rural Works Department, Government of
Bihar, 5th Floor, Visvesvaraya Bhawan, Nehru Path, Patna, Bihar 800015.
3. The Engineer-in-Chief-Cum-Additional Commission-cum-Special Secretary,
Rural Works Department, Government of bihar, 5th Floor, Visvesvaraya
Bhawan, Nehru Path, Patna, Bihar 800015.
4. The Chief Engineer- 4 (Purnea) Rural Works Department, Government of
Bihar.
5. The Superintending Engineer, Work Circle Madhepura, Rural Works
Department, Government of Bihar.
6. The Executive Engineer, Work Circle Madhepura, Rural Works Department,
Government of Bihar.
7. The Nodal Officer, Mukhya Mantri Gramin Sadak Unnayan Yojana, Rural
Works Department, Government of Bihar.
8. M/s R.K. Construction (Bid ID- 625036), Plot No. 9, Bhuiyadih, P.O.-
Agrico, P.S.- Sitaramdera Jamshedpur Jharkhand- 831009 through its
Proprietor, namely, Rajender Shangari, Son of Late Jagdish Shangari.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Ms. Shrishti Singh, Advocate
Mr. Pranav Kumar, Advocate
For the State : Mr. Amish Kumar, AC to AG
For the Respondent No.8: Mr. Anand Kumar Ojha 1, Advocate
Mr. Sushil Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
Date : 24-03-2026
Heard learned counsel for the parties.
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
2/19
2. The following reliefs have been sought in the
present writ application:
“(i) To issue an appropriate writ, order, direction in the
nature of certiorari for quashing the revised technical
bid decision of the Committee headed by the Engineer-
in-Chief-cum-Additional Commissioner-cum-Special
Secretary, Rural Works Department, dated 02.01.2026
published through memo no. 32 dated 12.01.2026 in
relation to NIT No. RRSMP-11/2025-26 (Package no.
Madhepura/05) of the Rural Works Department,
Government of Bihar, to the extent that the respondent
no. 8 has been once again, declared as technically
qualified (Annexure-P/10, Pg. 71).
(ii) To issue an appropriate writ, order, direction in the
nature of certiorari for quashing the financial bid
decision dated 28.11.2025 in relation to NIT No.
RRSMP-11/2025-26 of the Rural Works Department,
Government of Bihar, to the extent that the private
respondent no.8, namely, M/s R.K. Construction has
been declared as L1 on the basis of incorrect technical
bid qualification (Annexure-P/5, Pg-58).
(iii) To issue an appropriate writ, order, direction in the
nature of mandamus commanding the respondents to
revise the financial bid and accordingly, declare the
petitioner as L1, as according to the financial bid
decision dated 28.11.2025, the petitioner is L2 but the
private respondent no. 8, namely, M/s R.K. Construction
has been wrongly declared as technically qualified and
consequently, as L1.
(iv) To issue an appropriate writ, order, direction in the
nature of certiorari for the consequential relief of
quashing the revised technical bid decision dated
25.11.2025 published through memo no. 3995 dated
28.11.2025 in relation to NIT No. RRSMP- 11/2025-26
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
3/19
of the Rural Works Department, Government of Bihar,
to the extent that the respondent no. 8 has been once
again, declared as technically qualified. (Annexure-P/4,
Pg53).
(v) To issue an appropriate writ, order, direction in the
nature of certiorari for the consequential relief of
quashing the technical bid decision dated 08.09.2025
published through memo no. 3338 dated 09.09.2025 in
relation to NIT No. RRSMP-11/2025-26 of the Rural
Works Department, Government of Bihar, to the extent
that the respondent no. 8 has been declared as
technically qualified. (Annexure-P/2, Pg. 50).
(vi) To issue an appropriate writ, order, direction in the
nature of certiorari for quashing any consequential
action taken pursuant to the impugned decision,
including quashing of any letter of award, agreements
entered with third party, if any.
(vii) To any other relief or reliefs for which the
petitioner is found to be entitled to in the facts and
circumstances of the case.”
3. The brief facts of the present case are that the
petitioner had participated in a tender process pursuant to Notice
Inviting Tender (NIT) bearing no. RRSMP-11/2025-26 dated
26.07.2025 issued by the Rural Works Department, Government
of Bihar. The petitioner submitted his bid for Package No.
Madhepura/05 and was declared technically qualified along
with other bidders, including the private respondent, M/s R.K.
Construction, vide decision dated 08.09.2025. However, the
petitioner submitted an objection dated 13.09.2025, against the
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
4/19
technical qualification of the private respondent, alleging that
the private respondent did not fulfil the mandatory criteria under
Clause 4.4A(a) of CMBD. The respondent department
considered the objection and passed an order dated 28.11.2025,
whereby the private respondent had again been declared
technically qualified. Another objection was submitted by the
petitioner vide letter dated 01.12.2025, challenging the technical
qualification of the private respondent on the ground of non-
conformity to Clause 4.4A(a) of CMBD.
4. Pursuant thereto, the petitioner approached this
court, and in CWJC No. 19719 of 2025, the respondent
authorities were directed to consider the representation of the
petitioner. The respondent department passed a reasoned order
dated 12.01.2026, affirming its earlier orders, whereby the
technical qualification of the private respondent has been
upheld.
5. Vide order dated 29.01.2026, notice was issued to
respondent no. 8. In pursuance thereof, Mr. Anand Kumar Ojha,
learned counsel, has entered appearance on behalf of respondent
no. 8 by filing Vakalatnama on 18.02.2026, which is taken on
record. However, till date, no counter affidavit has been filed on
behalf of respondent No.8.
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
5/19
6. Vide order dated 29.01.2026, this Court had
observed as under:
“3. It is not in dispute that the petitioner is one of
the technically qualified bidders. In the present writ
application, the petitioner has challenged the
technical bid decision whereby respondent No. 8 has
also been declared technically qualified."
4. It has been brought to the notice of this Court that
ITB 24.2 of the Combined Model Bidding Document
(CMBD) deals with the evaluation and comparison
of bids. The said ITB 24.2 defines a “substantially
responsive bid”, which is extracted hereunder
E. Evaluation and Comparison of Bids
ITB 24.2 A substantially responsive bid is one that fulfills the following
mandatory requirements of the Bidding Document:-
Sl. No. Mandatory requirement of the ITB Clause Reference of
Bidding Document Format
1 ATO Clause-
4.4A(a)
2 Similar Work Experience Clause-
Certificate 4.4A(c)
3 Existing Commitment and On- Clause- Section-III
going Works 4.2(m) Qualificatio
n
Information
Clause-
1.3.2(A)
4 Deleted
5 Bid Validity Clause Section-IV
16.1
6 Evidence of access to line(s) of Clause Section-IV
credit and availability of other 4.2(g)
financial resources/facilities
certified by banker
7 Undertaking to invest money Clause Section-IV
from own resources 4.4B(b)(iii)
8 Conditions relating to Joint Clause 4.3
Venture, where applicable and 4.4D
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
6/19
5. It has further been pointed out that Sl. No.-1 of the said ITB
refers to ATO Clause 4.4A(a), which reads as follows:
क 0 सं CMBD की कंडडिका पूरर मे CMBD प्रस्ताकरत प्ररधान
0 मे अंककत
प्ररधान
1. 4.4A(a) ----------- ------------------
Note:
1. ----
2. Payment Certificate of Required
civil Engineering work of any one
year (by which the bidder will be
qualified) should be attached as
mandatory.
7. Learned counsel for the petitioner submits that the
Clause 4.4A(a) of the CMBD, amended vide letter dated
14.07.2025, unequivocally mandates submission of a payment
certificate of the relevant financial year/qualifying year along
with the bid, and the same is integral to determine whether a bid
is ‘substantially responsive’ under Clause 24.2 of CMBD. It is
submitted that respondent no. 8 failed to furnish such certificate
at the time of submission of the bid and, therefore, could not
have been declared technically qualified.
8. Learned counsel for the petitioner further submits
that the said clause had been amended vide letter dated
14.07.2025, and since the present NIT had been published on
26.07.2025, the said amendment would be applicable for the
purposes of present NIT.
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
7/19
9. Learned counsel further submits that Clause 24.1 to
24.4 of the CMBD mandates that the determination of
responsiveness must be based solely on the contents of the bid
itself and any bid which is not substantially responsive is liable
to be rejected and cannot be subsequently made responsive by
curing material deficiencies. Clause 24.1 to 24.4 is reproduced
hereinbelow:
"24.1 The Engineer-in–chief-cum-Additional
Commissioner-cum-Special Secretary/ Engineer-in–
chief’s determination of a bid’s responsiveness is to
be based on the contents of the bid itself, as defined
in ITB10.
24.2 A substantially responsive bid is one that meets
the requirements of the Bidding Document without
material deviation, reservation, or omission. The
mandatory requirements for a substantially
responsive bid is mentioned in Bid Data Sheet. A
material deviation, reservation, or omission is one
that,
(a) if accepted, would
(i) Affect in any substantial way the scope, quality,
or performance of the Works specified in the
Contract; or
(ii) Limit in any substantial way, inconsistent with
the Bidding Document, the Engineer-in–chief-cum-
Additional Commissioner-cum-Special
Secretary/Engineer-in–chief’s rights or the Bidder’s
obligations under the proposed Contract; or
(b) If rectified, would unfairly affect the competitive
position of other Bidders presenting substantially
responsive bids.
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
8/19
24.3 The Engineer-in–chief-cum-Additional
Commissioner-cum-Special Secretary / Engineer-in–
chief’s shall examine the technical aspects of the bid
submitted in accordance with ITB 14.
24.4 If a bid is not substantially responsive to the
requirements of the Bidding Document, it shall be
rejected by the Engineer-in–chief-cum- Additional
Commissioner-cum-Special Secretary / Engineer
-in–chief’s and may not subsequently be made
responsive by correction of the material deviation,
reservation, or omission.”
10. Learned counsel for the State referring to
paragraphs 23 to 26 of the counter affidavit submits that the
Technical Bid Tender Committee, in its meeting dated
08.09.2025, declared all eligible bidders, including respondent
no. 8, as technically qualified based on the documents
submitted.
11. It is submitted that upon receipt of objection from
the petitioner, the department undertook verification of the civil
works and turnover details furnished by respondent no. 8 from
the concerned authorities, including TSUISL (Tata Steel Utilities
and Infrastructure Services Limited) and upon such verification,
found the bid capacity of respondent no. 8 to be in order.
Accordingly, in the re-meeting dated 25.11.2025, the technical
qualification of respondent no. 8 was reaffirmed and its
financial bid was opened, wherein it emerged as L1.
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
9/19
12. It is further submitted that Clause 25.1 of the
CMBD empowers the authority to seek additional documents to
rectify non-material non-conformities, and the documents
sought from respondent no. 8 were only for verification
purposes. It is thus submitted that the decision of the
respondents is in accordance with the tender conditions and
does not call for interference.
13. Per contra, learned counsel for the petitioner
submits that Clause 25.1 of the CMBD, relied upon by the
respondents, applies only to non-material non-conformities and
cannot be invoked to cure a fundamental defect such as non-
submission of a mandatory document. The action of the
respondents is thus arbitrary and violative of Article 14 of the
Constitution of India.
14. Learned counsel for the respondent No.8 has
adopted the arguments as advanced by the learned counsel for
the State.
15. The limited issue that arises for consideration is
whether a mandatory condition stipulated in the bid document
can be overlooked or relaxed by the authority concerned while
determining technical qualification of a bidder.
16. At the outset, it is well settled that the terms and
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
10/19
conditions of a tender document constitute the foundational
framework governing the bidding process and are binding on all
the participants as well as the authority issuing the tender. The
sanctity of such conditions, particularly those expressly
characterized as mandatory, cannot be diluted or relaxed in a
manner that would compromise fairness, transparency, and
equality amongst competing bidders. The Hon’ble Supreme
Court in Central Coalfields Ltd. v. SLL-SML (Joint Venture
Consortium) reported in (2016) 8 SCC 622, has observed that
while the employer is best suited to interpret tender conditions,
such discretion must be exercised uniformly and without
arbitrariness. The relevant part of the said order reads as
follows:
“47. ... Ordinarily, the soundness of the decision taken by
the employer ought not to be questioned but the decision-
making process can certainly be subject to judicial review.
The soundness of the decision may be questioned if it is
irrational or mala fide or intended to favour someone or a
decision “that no responsible authority acting reasonably
and in accordance with relevant law could have reached”
as held in Jagdish Mandal followed in Michigan Rubber.”
17. It is evident from the statements made in the writ
petition, and the counter affidavit, that the present NIT had been
published on 26.07.2025. An amendment in some clauses of the
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
11/19
CMBD was notified vide letter dated 14.07.2025, wherein the
relevant Clause 4.4A(a) of the CMBD was also amended. The
said amendment would find application in the present NIT, as
the amendment had been notified vide letter dated 14.07.2025,
and the present NIT has been published at a later date on
26.07.2025.
18. In the present case, the amended Clause 4.4A(a)
of the CMBD, as noticed by this Court in its earlier order dated
29.01.2026, unequivocally mandates submission of payment
certificate of requisite civil engineering work for a qualifying
year. The use of the term ‘mandatory’ leaves no scope for
ambiguity. The said requirement is intrinsically linked with
determination of eligibility and bid capacity and forms part of
the criteria for a ‘substantially responsive bid’ under Clause
24.2.
19. However, upon perusal of materials on record it is
evident that the payment certificate for the relevant financial
year/qualifying year had not been submitted by the private
respondent. Further, the department in its order dated
12.01.2026, has stated that only the ATO sheet, along with a
26AS certificate for the relevant financial year was attached
with the bid document. The submission of payment certificate
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
12/19
for the relevant financial year/qualifying year does not find any
mention in the impugned order. As such, it is evident that a
mandatory clause of the CMBD has not been fulfilled. The
relevant part of the order dated 12.01.2026 is reproduced
hereinbelow:
“ oLrqfLFkfr ;g gS fd fufonkdkj M/s. R.K. Construction }kjk%&
fufonk esa UDIN vk/kkfjr dqy jkf'k :0 11554-28189 yk[k dk Annual
Turnover Summary sheet layXu fd;k x;k gS] ftlij Civil Work dh jkf'k
dze la[;k&01 ls 09 ij vafdr gS ftldh dqy jkf'k :0 10666-94 yk[k vafdr gSA
v/kh{k.k vfHk;ark] xzkeh.k dk;Z foHkkx] dk;Z vapy&e/ksiqjk ds i=kad&886 ¼vuq0½]
fnukad&26-08-2025 }kjk bl fufonk dk rqyukRed fooj.kh eq[;ky; dks miyC/k
djk;k x;k Fkk ftlds lkFk lHkh 03 fufonkdkjksa dk 'kiFk&i= 26AS dh izfr lfgr
¼fnukad&20-08-2025] 20-08-2025] ,oa 22-08-2025 dk 'kiFk&i=½ Hkh layXu gS] rkfd
Civil Work dh jkf'k dk feyku fd;k tk ldsA
fnukad& 08-09-2025 dks laiUu rduhdh chM fufonk lfefr dh laiUu cSBd
esa bl fufonk esa Hkkx ysus okys fufonkdkjksa }kjk fufonk esa layXu fd;s x;s dkxtkrksa
ds vk/kkj ij U;wure vgrkZ iwjk djus okys (CMBD dh dafMdk 24-2½ lHkh
fufonkdkjksa dh fufonk dks rduhdh :i ls ;ksX; ?kkssf"kr fd;k x;kA rnksijkar
fufonkdkj MS Anirudh Saraswati Construction (Bid Id-626191) ls izkIr
ifjokn ds vkyksd esa fufonkdkj M/s. R.K. Construction }kjk fufonk esa lefiZr
Annual Turnover Summary sheet ds dze la[;k&01 ls 06 ij vafdr
Government Sector ls lacaf/kr Civil Work dh jkf'k ¼:0 2508-077 yk[k½ ds
vfrfjDr dze la[;k&07 ,oa 09 ij vafdr vf/kdre nks Civil Work dh jkf'k ds
lR;kiu gsrq lacaf/kr dk;kZy; dks eq[;ky; Lrj ls i= Hkstk x;kA mDr ds vkyksd
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
13/19
esa dze la[;k&09 ij vafdr vf/kdre Civil Work dh jkf'k :0 5971-66417 yk[k
ds lR;kiu ds laca/k esa lacaf/kr QeZ Tata Steel utilities and Infrastructure
Services Limited (TSUISL) }kjk ;g iqf"V fd;k x;k fd M/s. R.K.
Construction }kjk foRrh; o"kZ 2023&24 esa Annual Rate Contract (ARC)
for All kind of Civil Repair Job ls lacaf/kr Billed Value dh jkf'k :0 5827-
45660 yk[k gSA fufonkdkj M/s. R.K. Construction(Bid Id-625036) }kjk
foRrh; o"kZ 2023&24 esa fd;s x;s vf/kdre jkf'k okys Civil Work dh jkf'k ds
lR;kiuksijkUr vkdfyr Available Bid Capacity dh jkf'k bl fufonk dh jkf'k ls
vf/kd ik;k x;k] ftl dkj.k fnukad&25-11-2025 dks rduhdh chM fufonk lfefr dh
lEiUu iqucSZBd esa fufonkdkj M/s. R.K. Construction (Bid Id-625036) ds
rduhdh chM dks iqu% ;ksX; ?kksf"kr fd;k x;k ,oa iwoZ dk fu.kZ; ;Fkkor jgus ds
dkj.k dk;Zokgh Upload djus ds lkFk foRrh; chM [kksyus dk vkns'k fn;k x;kA
foRrh; chM esa fufonkdkj M/s. R.K. Construction(Bid Id-625036) }kjk
m)`r nj (-) 5-10 izfr'kr dks L1] fufonkdkj MS Anirudh Saraswati
Construction (Bid Id-626191) }kjk m)`r nj ¼&½ 1-88 izfr'kr dks L2 rFkk
fufonkdkj Diwakar Kumar (Bid Id-626404) }kjk m)`r nj 0-00 izfr'kr dks
L3 ik;s x;sA”
20. A reading of Clauses 24.1 to 24.4 of the CMBD
make it explicitly clear that the determination of responsiveness
must be based solely on the contents of the bid as submitted and
that a bid which is not substantially responsive cannot be
subsequently made responsive by curing a material omission.
Clause 24.4, in particular, prohibits any post-submission
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
14/19
rectification of a material deviation.
21. In such circumstances, and considering the
express provisions under CMBD, the reliance placed by the
respondents on Clause 25.1 of the CMBD is wholly misplaced.
The said provision permits the authority to seek
clarification/additional information only in respect of non-
material deficiencies and that too where the bid is otherwise
substantially responsive.
22. This position has been reiterated by the Hon’ble
Supreme Court in Banshidhar Construction Pvt. Ltd. v. Bharat
Coking Coal Ltd. reported in (2024) 10 SCC 273, wherein it has
been observed that a bidder cannot be permitted to cure a
fundamental defect in its bid after the last date of submission
and mandatory conditions cannot be waived or relaxed. The
relevant part of the said order reads as follows:
“20… This was the mandatory requirement of NIT,
the same being related to the qualification criteria
as also transpiring from Clause 2.2.5 of the RFB.
21. Admittedly, Respondent 8 had not submitted the
scanned copies of its Audited Annual Reports for the
last three financial years, at the time of
submitting/uploading the bid documents, before the
last date fixed i.e. 1-12-2023 and the same were
submitted on 17-4-2024 only when the clarification
was sought from Respondent 8, after the technical
bids were opened on 4-12-2023.
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
15/19
22…. there was no justification on the part of the
respondent authorities for accepting the technical
bid of Respondent 8, which clearly was not in
compliance with the same mandatory Clause 10 of
NIT. The respondent BCCL has miserably failed to
justify as to how the technical bid of Respondent 8
was accepted when it had not submitted the requisite
important documents related to the qualification
criteria as mentioned in Clause 10 of NIT.
23. A lame submission was made on behalf of the
respondent BCCL that the Tender Evaluation
Committee could call for the shortfall of documents
and could not allow replacement of the documents,
and that Respondent 8 was asked to submit the
shortfall documents only. We are neither impressed
nor can accept the said submissions. Further, apart
from the fact that the technical bid of Respondent 8
deserved to be rejected at the threshold for non-
compliance of Clause 10 of NIT, there was also no
legal and justifiable reason for rejecting the
technical bid of the appellant.
...
27. Thus, the said action of the respondent BCCL in
rejecting the technical bid of the appellant on
absolutely extraneous ground and accepting the
technical bid of Respondent 8 though submitted in
utter non-compliance of the mandatory requirement
of Clause 10 of NIT, and subsequently calling upon
Respondent 8 to furnish the shortfall of documents
after the opening of technical bids of the bidders,
was totally arbitrary and illegal.”
23. In W.B. State Electricity Board v. Patel
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
16/19
Engineering Co. Ltd. reported in (2001) 2 SCC 451, the
Hon’ble Supreme Court has observed that the terms of the
invitation to tender must be strictly adhered to and cannot be
deviated from, in favour of any bidder. The relevant part of the
said judgment reads as follows:
“24. It is essential to maintain the sanctity and integrity of
process of tender/bid and also award of a contract. The
appellant, Respondents 1 to 4 and Respondents 10 and 11
are all bound by the ITB which should be complied with
scrupulously. In a work of this nature and magnitude where
bidders who fulfil prequalification alone are invited to bid,
adherence to the instructions cannot be given a go-by by
branding it as a pedantic approach, otherwise it will
encourage and provide scope for discrimination,
arbitrariness and favouritism which are totally opposed to
the rule of law and our constitutional values. The very
purpose of issuing rules/instructions is to ensure their
enforcement lest the rule of law should be a casualty.
Relaxation or waiver of a rule or condition, unless so
provided under the ITB, by the State or its agencies (the
appellant) in favour of one bidder would create justifiable
doubts in the minds of other bidders, would impair the rule
of transparency and fairness and provide room for
manipulation to suit the whims of the State agencies in
picking and choosing a bidder for awarding contracts as in
the case of distributing bounty or charity. In our view such
approach should always be avoided. Where power to relax
or waive a rule or a condition exists under the rules, it has
to be done strictly in compliance with the rules. We have,
therefore, no hesitation in concluding that adherence to the
ITB or rules is the best principle to be followed, which is
also in the best public interest.”
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
17/19
24. Applying the aforesaid principles to the facts of
the present case, it is evident that the respondent no. 8 did not
furnish the mandatory payment certificate for the relevant year
along with its bid. This omission on part of the private
respondent would be relevant in determining the eligibility of
the bidder and cannot be treated as a minor procedural lapse. In
terms of Clause 24.4 of the CMBD, such a bid ought to have
been rejected as non-responsive.
25. Instead, the authorities undertook a post-bid
verification process and permitted respondent no. 8 to furnish
supporting documents. This effectively allowed supplementation
of mandatory documents of the bid after the cut-off date, which
is impermissible under the provisions of CMBD, and would
constitute as procedural irregularity on part of the respondent-
department. Such procedural irregularity would be non-curable
as it effectively determines the substantive right of the petitioner
and it essentially causes failure of justice.
26. The contention of the respondents that such
documents were sought merely for verification cannot be
accepted, as verification presupposes the existence of
foundational material in the bid itself. In the absence of the
mandatory document, the exercise undertaken by the
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
18/19
respondents amounts to curing a fundamental defect in the bid
of the private respondent. Such action confers an undue
advantage upon respondent no. 8 and disturbs the level playing
field among bidders, thereby violating the principle of equality
enshrined under Article 14 of the Constitution of India. The fact
that such exercise was undertaken only after objections were
raised, strengthens the argument that the bid was deficient at the
very initial stage.
27. In these circumstances, this Court is of the
considered opinion that the action of the respondents in
declaring respondent no. 8 as technically qualified, despite non-
submission of a mandatory document at the time of bid
submission, is clearly arbitrary, contrary to the tender
conditions, and legally unsustainable. Consequently, the
impugned decisions, whereby respondent no. 8 has been
declared technically qualified and thereafter as L1, cannot be
sustained in the eyes of law.
28. In view of the aforesaid discussion, order dated
12.01.2026, as contained in Annexure – P/10 is set aside.
Further, the financial bid decision dated 28.11.2025, as
contained in Annexure – P/5, to the extent that respondent No.8
has been declared as L1, is also set aside.
Patna High Court CWJC No.883 of 2026 dt.24-03-2026
19/19
29. Accordingly, the present writ application stands
allowed.
30. Pending application(s), if any, shall stand disposed
of.
(Sudhir Singh, J.)
(Shailendra Singh, J.)
Gaurav Kumar/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 06.04.2026
Transmission Date N.A.
Checking your session…