[Cites 7, Cited by 0]
Delhi High Court
M/S Hazoor Multi Projects Limited vs Union Of India & Anr on 6 April, 2026
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Manmeet Pritam Singh Arora
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 06.04.2026
+ W.P.(C) 3434/2026, CM APPL. 16499/2026
M/S HAZOOR MULTI PROJECTS LIMITED .....Petitioner
Through: Mr. Puneet Taneja, Sr. Advocate with
Mr. Amit Yadav and Mr. Manmohan
Singh Narula, Advocates.
Versus
UNION OF INDIA & ANR. .....Respondents
Through: Mr. Nishant Gautam CGSC with Mr.
Vardhman Kaushik, Ms. Kavya
Shukla, Mr. Vineet Negi, Mr. Vibhav
V. Nath, Ms. Theresa, Advocates with
Mr. Bipul Kumar, GP for R1/UOI
Mr. Sandeep Sethi, Sr. Advocate and
Mr. Kunal Tandon, Sr. Advocate with
Mr. Kapil Arora, Ms. Aditi Tambi,
Mr. Kartik Sharma, Ms. Natasha and
Ms. Shreni Taran, Advocates for R2.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
V. KAMESWAR RAO, J. (ORAL)
1. This writ petition has been filed with the following prayers:
a) Issue a writ of certiorari or any other appropriate writ,
order or any direction of like nature thereby quashing/
setting aside the Technical Evaluation Result dated
20.02.2026 whereby the Petitioner‟s bid has been declared
"Non-Responsive"; and/or
b) Issue a writ of certiorari or any other appropriate writ,
order or any direction of like nature thereby
quashing/setting aside the Financial Bid Result dated
12.03.2026, including the consequential declaration of M/s
J Infratech Limited as L-1 bidder, in so far as it excludes the
Petitioner from consideration;
c) Issue a writ of mandamus or any other appropriate writ,
order or any direction of like nature directing the
Respondent to consider the clarifications of the Petitioner
and open the Financial Bid of the Petitioner;
d) Issue a writ of mandamus or any other appropriate writ,
order or any direction of like nature thereby restraining the
Respondent from taking any further steps pursuant to the
financial bid result dated 12.03.2026, including issuance of
Letter of Acceptance, till the Petitioner‟s bid is
reconsidered;
2. The present dispute arises out of the tender invited by respondent
no.1/ Ministry of Road Transport & Highways (MoRTH) for construction of
road from 113.25 km to 160.75 km of the Huri-Taliha section of NH-913
(Frontier Highway) to Intermediate Lane on EPC mode in the State of
Arunachal Pradesh. Corrigendum was issued by the respondent no.1 on
01.09.2025 whereby clause 2.2.2.2(ii) was modified. Subsequent to which,
the petitioner submitted its bid.
3. It is the case of the petitioner as contented by Mr. Puneet Taneja,
learned Senior Advocate along with Mr. Amit Yadav that the petitioner is
aggrieved by the technical evaluation result dated 20.02.2026 whereby the
bid submitted by the petitioner has been arbitrarily declared as "Non-
Responsive" and also by the subsequent financial bid result dated
12.03.2026 wherein the petitioner has again been reflected as "Non-
Responsive" without due consideration of the clarifications submitted by the
petitioner vide emails dated 05.02.2026 and 25.02.2026. It is their case that
the respondent no.1 has alleged that the petitioner does not meet the
eligibility requirement stipulated under Clause 2.2.2.2(i) & (ii) of the
Request for Proposal (RFP). However, while issuing the aforesaid technical
evaluation result, the respondent no.1 itself called upon the petitioner to
furnish response/clarifications with respect to the declaration of "Non-
Responsiveness". In compliance to the aforesaid, the petitioner furnished
detailed replies along with supporting documents demonstrating that the
petitioner satisfies the eligibility criteria under the RFP. Even then the
respondent no.1 did not consider the aforesaid clarifications and documents
proceeded with the tender process and opened financial bids on 12.03.2026
wherein the bid of the respondent no.2 emerged as L-1.
4. As per Mr. Taneja, the petitioner satisfies the eligibility criteria under
Clause 2.2.2.2(i), which is the threshold technical capacity of
Rs.7,90,91,76,231/-. The petitioner has executed/received payment of
Rs.806.88 crores in the project Construction of Access Controlled Nagpur-
Mumbai Super Communication Expressway (Maharashtra Samrudhi
Mahamarg) in the state of Maharashtra on EPC mode for Package-11 from
502.698 km to 532.094 km (Section-Village Kokamthan to Village Derde
Korhale), District Ahmednagar (Pkg-11). He has drawn our attention to the
documents in support of the executed/receiving payment of Rs.806.88
crores.
5. According to him, Clause 2.2.2.2(ii) which stipulates either two
similar completed works costing not less than amount equal to 25% each of
estimated cost i.e. Rs.1,97,72,94,058/- or one similar completed work
costing not less than amount which equals to 35% each of estimated cost,
i.e. Rs.2,76,82,11,681/-. Mr. Taneja further argues that Clause 2.2.2.2(ii)
which is the criteria of hill road wherein one similar work of atleast 5 km
length involving formation building along with hill and valley side slope
protection work. Mr. Taneja has referred to „List of eligible projects for hill
road qualification‟ as annex IVA at Page 179 of the paper book wherein he
has referred to three projects which satisfies the criteria for hill road
qualification and length executed by the bidder in the hilly area. The details
of the same are as under:
6. Upon a reading of the same it can be seen that the Petitioner had
submitted the following details :
i. Construction of Access Controlled Nagpur-Mumbai Super
Communication Expressway (Maharashtra Samruddhi Mahamarg) in
the state of Maharashtra on EPC Mode for Package-11, from km
502.698 to km 532.094 (Section-Village Kokamthan to Village Derde
Korhale), District Ahmednagar.
ii. Construction of Access Controlled Nagpur-Mumbai Super
Communication Expressway (Hindu Hruday Samrat Balasaheb
Thakaray Maharashtra Samruddhi Mahamarg) in the state of
Maharashtra on EPC Mode-CP-13, from km 577+739 to km
623+3798 (Village Sonari to Village Taranganpada) in District
Nashik.
iii. Rehabilitation & Up-gradation to 2 Lane with Paved Shoulder/5
Lanning configuration of Wakan Pali Khopoli Road SH93 (New NH),
MPEW, AH47 (NH4) and NH66 (NH17) from km. 0/000 to 40/600in
the state of Maharashtra on EPC Mode.
7. Mr. Taneja has drawn our attention to the summary form which
comprises the petitioner‟s compliance submission as under:
8. The petitioner had also furnished the certificates issued by the
authorities giving details of Bill of Quantities (BOQ) items in respect of the
project i.e. Pkg-11 and Maharashtra Samrudhi Expressway (Pkg-13). The
scope of works executed include slope protection works, RCC retaining
walls, etc. which constitute integral components of Hill Slope Protection
(HSP) works. This further cements the claim of the petitioner that the
requirements under Clause 2.2.2.2(i) & (ii) are met.
9. On the issue of the petitioner being declared as "Non-Responsive"
vide Technical Evaluation Result dated 20.02.2026 project code „c‟ i.e. Pkg-
13 has been considered against similar work with 5 km hill slope protection
work and project code „a‟ & „b‟ has not been considered. He contended that
the petitioner satisfies the hill road qualification in all three project works
and the requirements of the present RFP stands satisfied.
10. Concerning the issue of threshold capacity of Rs.303.14 crores,
according to Mr. Taneja, the petitioner had informed the respondent no.1
with respect to the Nagpur-Mumbai Expressway wherein it was the official
sub-contractor for the contract issued to M/s. Gayatri Projects Ltd. This
coupled with the fact that the contract agreement allows the provision of
sub-contracting. The petitioner has annexed the sub-contract agreement
along with the BOQ items demonstrating the value of the work awarded to
the tune of Rs.303.14 crores to the petitioner. This was as on 03.01.2022
relating to Chainage from 521.60 km to Chainage 532.094 km. Later on
20.06.2022 the scope was enhanced from 502.698 km to 532.094 km
whereby further work of Rs.220.41 crores has also been given to the
petitioner. Then again on 14.02.2023, the scope of work was changed
whereby further work of Rs.346.56 crores was given to the petitioner, which
brought the total value of the awarded work to the petitioner to Rs.870.11
crores. The petitioner was also given the price escalation which brought the
value of the work allotted to the petitioner to Rs.922.01 crores out of which
the petitioner had executed work of Rs.806.88 crores in the five financial
years as certified by the auditors. It is his contention that the respondent no.1
has failed to consider the subsequent work orders issued in continuation of
the agreement as well as the auditor‟s certificate. All these documents were
submitted and formed part of the bid documents.
11. It is the case of Mr. Taneja that the petitioner had submitted a
representation seeking an opportunity to represent against the result of the
technical evaluation, which was done after taking note of the reasons for
declaration of Non-Responsiveness vide Technical Evaluation Result dated
20.02.2026. The said representation was accompanied with the certificate
dated 23.02.2026. The same is not a new document but rather a clarifying
certificate issued to provide more clarity and to re-affirm the fact and
credentials already forming part of the bid document. The said certificate
clearly stated that 12.398 km falls under hilly terrain and the work was
completely executed by the petitioner.
12. Mr. Taneja has contested the decision on the representation dated
05.02.2026 as being an unreasoned order. The respondent no.1 did not
consider the representation by terming the certificate dated 23.02.2026 as a
new document, without appreciating that the same clarifies and re-confirms
the information already submitted. On the issue of the Hill Road Criteria,
respondent no.1 had only considered the project code „c‟ for similar work
with 5 km HSP work under the Hill Criteria Qualification. The respondent
had also failed to consider the justification in response to the grounds of
„Non-Responsiveness‟, by stating the supporting certificate constitutes a
new document. The purpose of granting opportunity to submit a
representation is to clarify any issue that may have not been fully
appreciated by the Technical Evaluation Committee ("TEC"). If such an
evaluation is disregarded then the process becomes a mere formality.
13. He stated that if the contentions of the petitioner are considered in
perspective, it is likely to emerge as L-1 bidder as such the exclusion of the
petitioner is arbitrary and unreasonable. He has relied upon a judgment of
the Supreme Court in the case of Tata Cellular v. Union of India, (1994) 6
SCC 651 to state that even though the Courts must exercise judicial restraint
in tender matters but it was also held that the decision making process
remains fully amenable to judicial review and it would be open for the Court
to review the decision maker‟s evaluation of facts. He has referred to the
executed value of the petitioner‟s projects to be Rs.806.88 crores under
project code „a‟ which alone satisfies the threshold technical capacity of
Rs.790.91 crores. He has also relied on the said judgment to argue that the
rejection of the petitioner‟s bid was on hyper-technical grounds without
independent verification and constitutes unreasonableness as per the
Wednesbury Principles.
14. Reliance is also being placed on the judgment in the case of Smt. S.R.
Venkataraman v. Union of India, (1979) 2 SCC 491 wherein it was held
that an administrative order which is based on reasons of fact which do not
exist must be held to be an abuse of power. In the present case, he stated
that not only had the petitioner demonstrated technical capacity but also
completed hill road works with slope protection and the same is
conclusively contradicted by the official certificate issued by the Project
Authority.
15. Mr. Nishant Gautam, appearing on behalf of the respondent no.1, the
MoRTH stated that MoRTH had floated a tender on 11.07.2025 for
construction of NH-913 at an estimated cost of Rs.790.92 Crores excluding
Goods and Services Tax (GST). Corrigenda were issued on 01.09.2025 and
15.09.2025 modifying the clause 2.2.2.2(ii). The petitioner submitted its bid
in September 2025 claiming three works with project codes „a‟ „b‟ and „c‟
against eligible clauses 2.2.2.2(i) and 2.2.2.2(ii). The bidder sought
clarifications as to how the qualification criteria required as per clauses
2.2.2.2(i) and 2.2.2.2(ii) and the reply of the bidder dated 05.02.2026 was
deliberated upon by the Committee in its meeting dated 12.02.2026. On
20.02.2026 the TEC declared the petitioner „non-responsive‟ on two
independent grounds. After which the petitioner was granted seven days‟ to
represent and the said opportunity was availed by email dated 25.02.2026.
After giving due consideration to the representation MoRTH maintained its
stand on its finding that the petitioner‟s bid is non-responsive. It was then
the financial bids were opened on 12.03.2026 wherein the respondent no.2
emerged as L1.
16. Mr. Gautam stated that two grounds on which the petitioner bid was
declared non-responsive are both related to clauses 2.2.2.2(i) and 2.2.2.2(ii).
Ground 1 pertains to non-compliance of similar work criteria under clauses
2.2.2.2(ii), which when read with corrigendum dated 15.09.2025, the bidder
was required to demonstrate:-
a) Value threshold of one similar work equal or greater than
Rs.272.82 Crores or two similar work equal or greater than
Rs.197.73 Crores each; and
b) HSP (retaining wall/breast wall/gabion wall/Hydro seeding/soil
nailing /rock anchor) in a total length of 5 km in the said similar
work, i.e. within the very same work satisfying the value threshold.
Each similar work needed to comply with 5 km HSP works.
17. It is his contention that both works were conjunctive. The phrase „the
said similar work‟ for any cross-project aggregation of the 5 km HSP
requirement. The following table sets out the three projects submitted by the
petitioner and the reason why each of them failed to meet the prescribed
criteria:-
Project Work Completed value Why it falls
"a" Maharashtra Samruddhi Rs.749.03 Cr Original Certificate:
Expressway Package-11 Retaining Wall only
(MSRDC) 0.87 km (< 5 km).
Earthwork in
banking ≠ HSP.
Altered certificate
submitted post bid-
date -- inadmissible.
"b" Wakan-Pali-Kholpoli Rs.98.62 Cr Certificate silent on
Road, NH-548A HSP -- fails 5 km
condition outright,
irrespective of value.
"c" Maharashtra Samruddhi Rs.113.27 Cr 5 km HSP met -- but
Expressway Pkg-13 value far below
(MSRDC) Rs.197.73 Cr / Rs.
272.82 Cr threshold.
Failed value
condition.
18. As per Mr Gautam, project code „a‟ the original certificate of MSRDC
dated 15.09.2025 as submitted in original bid, records that the slope
protection by earth work in banking is 54.49 km and retaining wall is 0.87
km. The retaining wall was only the component that could qualify as HSP
and at 0.87 km it fell short of 5 km. The earth work in banking is not HSP
as it involved filling and compacting earth to form road embankment. It was
structurally distinct from HSP works (retaining wall/breast wall/gabion
wall/Hydro seeding/soil nailing /rock anchor) which protected the existing
hill slope from erosion and failure. The committee‟s exclusion of this
component was technically sound and is not perverse.
19. In the representation by email dated 25.02.2026, the petitioner had
submitted a second certificate also dated 15.09.2025 with two unexplained
alternations being the deletion of "earthwork in banking" and alternation of
the retaining wall component from 0.87 km to 8.70 km which is a ten fold
increase by transposition of digits. This document was not part of the
original bid and materially contradicted it. According to him, the law in this
regard, is well settled, that post bid date documents could not cure eligibility
deficiencies and documents contradicting original bid documents could not
be considered. As such, no project submitted by the petitioner satisfied both
the value and HSP requirement of clause 2.2.2.2(ii). Accordingly, the
declaration of non-responsiveness was fully justified.
20. The next objection taken by MoRTH as contended by Mr. Gautam, is
on the ground of non-compliance of threshold technical capacity clause
2.2.2.2(i). The said clause stipulates that the receipts from five eligible
projects are required in the last five financial years which exceed the
threshold technical capacity of Rs.790.92 Crores. In sub contracting cases,
clause 2.2.2.5(iv) restricted the value of the claimable amount to the
„approved sub-contract value‟ as approved by the authority which is the
Government client. Project „a‟ which is a sub-contract under M/s.Gayatri
Projects Limited, the petitioner executed project and claimed receipts of
Rs.806.88 Crores from this project whereas the sub-contract agreement
between client/MSRDC, M/s.Gayatri Projects Limited, and the petitioner
recorded a sub-contract value of only Rs.303.14 Crores.
21. As per Mr.Gutam, clause 2.2.2.5(iv) mandated a proof of the
authority‟s approval of the sub contract, i.e. approval from MSRDC and not
merely an inter se agreement between the private parties. No such document
from MSRDC was included in the original bid and the petitioner submitted a
purported MSRDC approval dated 23.02.2026 only at the representation
stage, which is post dated the bid and could not be considered. The
consequences, which followed under clause 2.2.2.5(iv) stated that since no
authority approval was furnished as part of the original bid the receipts
claimed by the petitioner from project code „a‟ were required to be restricted
to the sub-contract value of Rs.303.14 Crores, for which legal document was
present. On that basis, the petitioner‟s aggregate technical capacity fell short
of the required Rs.790.91 Crores and even on this ground, the finding of the
non-responsiveness was also justified.
22. On the aspect of whether the representation of the petitioner was not
considered, Mr Gautam submits that both the representations dated
05.02.2026 and 25.02.2026 were fully considered by the committee before
the financial bids were opened on 12.03.2026. Non-acceptance of the
petitioner‟s submission in this case does not amount non-consideration.
23. Mr.Gautam stated that even if, one were to assume that the altered
certificate is genuine the same was submitted beyond the bid date and
materially contradicted the original bid document. Hence, only the document
which form part of the original bid are governed under the evaluation and
the petitioner cannot be permitted to improve or supplement its bid after the
bid due date.
24. It is also the submission of Mr. Gautam that since the project is
situated in a hilly terrain there was not a substitute for demonstration of
specific HSP works evidenced by a certificate from the authority. The RFP
mandated a specific, quantified and certified 5 km threshold and not a
general characterisation of the terrain in which the project was located.
Accordingly, all 15 bids, which were received for NH-913 works in the
State of Arunachal Pradesh were evaluated on identical principles on
20.02.2026 and the petitioner has not in any way, been subjected to any
discriminatory treatment.
25. Mr. Sandeep Sethi and Mr. Kunal Tandon learned Senior Counsels
along with Mr. Kapil Arora and Ms. Aditi Tambi appearing for the
respondent no.2, which entity has emerged as L1 in the project tender has
supported the decision of MoRTH in declaring the petitioner as non-
responsive after having given them ample opportunity to be heard. Mr. Sethi
stated that even though clause 3.1.9 of the RFP does not require respondent
no.1 to provide any further opportunity to non-responsive bidders to submit
clarifications, once the technical evaluation result is declared, MoRTH still
provided another opportunity to the non-responsive bidders including the
petitioner vide the technical bid result. Even prior to 11.03.2026 the
petitioner had multiple opportunities to submit clarification/representation to
the respondent no.1 MoRTH.
26. Mr.Sethi has drawn our attention to clause 2.2.2.2 wherein the
technical requirement pertains to completion of 5 km of hill road and 5 km
hill and valley slide protection work in at least one similar work.
Additionally, he has also referred to the subsequent corrigenda dated
01.09.2025 and 15.09.2025 to state that the petitioner has not filed the latter
corrigendum before this Court. According to him, the petitioner purposefully
chose not to file the corrigendum dated 15.09.2025 as the same would
clearly demonstrate that the requirement under the bid was that the petitioner
should have completed of 5 km of HSP works whereas the bid submitted by
the petitioner did not fulfil this requirement.
27. The above clause and corrigenda stated that for the purpose of
meeting the technical eligibility under the RFP, three conditions must be
cumulatively satisfied, which are the following:-
i) The bidder ought to have received payments of more than
Rs.790.91 Crore (threshold technical capacity) over the past
five financial years for construction of eligible construction
work by itself or in a public-private partnership project.
ii) For computation of the threshold technical capacity the bidder
must complete either of the following: a) two similar
completed work not costing less than 25% each of the
threshold technical capacity i.e. Rs.197.72 Crores; or b) one
similar completed work costing not less than 35% i.e.
Rs.276.82 Crores; and
iii) Provided that in at least one of the aforesaid similar work, the
bidder must have completed HSP works of at least 5 km.
28. According to Mr.Sethi, in cases where the bidder has acted as a sub-
contractor, then the value of the above executed civil works for the purpose
of assessing the threshold technical capacity as well as the eligibility for
similar work, must be restricted only to the extent of allowable sub
contracting limit in the original contract. Therefore, if there are any
additions or modification in the contract, same are not be considered and it
is only the value under the original contract that should be considered for the
purpose of assessing the eligibility requirement. He stated that the above
conditions pertaining to similar works are concurrent in nature and this
condition along with the threshold technical capacity are required to be
cumulatively satisfied.
29. Vide email dated 30.01.2026, respondent no.1 MoRTH sent query in
relation to the technical bid submitted by the petitioner and the said query
clearly identifies that only the project code „c‟ with the completed value of
Rs.113.27 crores was considered against similar work with 5 km HSP work,
wherein notably similar work was less than 25%; whereas project code „a‟
and „b‟ do not demonstrate the completion of 5 km of HSP work.
Accordingly, the petitioner was asked to clarify how it met the criteria
clause 2.2.2.2(ii). Mr. Sethi, has referred to the petitioner‟s reply dated
05.02.2026 wherein it had admitted that the completion certificate for
project codes „a‟ and „b‟ do not explicitly state that 5 km of slope protection
is from projects executed in the hilly terrain. The petitioner had also
admitted that the original sub contract value for project code „a‟ was
Rs.303.14 Crores and had only increased in view of subsequent allotment of
additional work. It was thereafter, after having given the ample
opportunities to the petitioner that the respondent declared the petitioner as
non-responsive. Mr. Sethi, has also referred to the document titled „List of
eligible projects for hill road qualification‟ as annex IVA at Page 179 of the
paper book to state in the said document only project „c‟ has details of
relating to the length of different hill and valley protection work by the
petitioner and none of the other projects demonstrate the same. Even then,
the same does not satisfy the requirement of either 25% or 35% as per clause
2.2.2.2(ii).
30. It is the case of respondent no.2 that the petitioner while submitting
its letter dated 25.02.2026 has submitted a purported certificate from the
authority dated 23.02.2026 that the stretch of 12.398 km under project code
„a‟ falls under the hilly terrain. The said certificate is also accompanied by
another work done certificate dated 15.09.2025 which has been issued by the
Nagpur-Mumbai Super Communication Express Limited (NMSCEL) to
state that there has been a slope protection work of 54.49 km and also an
RCC retaining wall of 8.7 km. He stated that the certificate dated 05.02.2026
provided by the petitioner has been substituted with another certificate
mentioning only slope protection work which was submitted along with
their 25.02.2026 representation and the RCC retaining wall figures have also
been changed from 0.87 km to 8.7 km. He stated that this ground alone is
enough to dismiss this petition.
31. In this regard, Mr. Sethi has relied upon the following judgments for
the following propositions:
a) The judgment in the case of Tata Cellular v. Union of India,
(1994) 6 SCC 651 has been referred to state that the Courts do not
possess the expertise to correct the administrative decision and the
writ Courts ought not to sit as a court of appeal, but only review
the manner in which the decision was made;
b) In Tata Motors Ltd. v. Brihan Mumbai Electric Supply &
Transport Undertaking, (2023) 19 SCC 1 the Supreme Court had
held that a writ court ought to refrain itself from imposing its
decision over the decision of the employer as to whether or not to
accept the bid of a tenderer unless there is a patent illegality which
is pointed out;
c) As per the decision in the case of the N.G. Projects Ltd. v. Vinod
Kumar Jain, (2022) 6 SCC 127 it was held that an injunction or
interference in the tender process only leads to additional costs on
the public exchequer and is also against public interest; and
d) Lastly, he has also drawn our attention to the decision in the case
of Haffkine Bio-Pharmaceutical Corporation Ltd v. Nirlac
Chemicals, (2018) 12 SCC 790 to contend that the tender issuing
authority is the best judge of its own requirements and a party
whose claim is rejected may claim restitution if its bid is
technically qualified and wrongly rejected.
32. Mr. Taneja in his rejoinder submissions in the context of Clause
2.2.2.2(i) stated that the petitioner not only placed on record merely the
initial sub-contract agreement but also the subsequent work orders dated
20.06.2022 and 14.02.2023 which formally enhanced the scope of the work
along with the authority issued certificate. The same enhanced the aggregate
executed value of the project to Rs.806.88 crores. No reasonable evaluating
authority should read the sub-contract in isolation from the subsequent work
order which form part of the same contractual framework which had
expressly enhanced this Court and value. With regard to Clause 2.2.2.2 (ii),
since the executed value of work was Rs.806.88 crores under project code
„a‟ which is nearly three times the threshold limit of Rs.276.82 crores for
similar completed work. The TEC offered no rational basis for declining to
treat the petitioner at par with other bidders at the time of bid evaluation. As
on the issue of the Hill road qualification criteria, the respondent no.1,
MoRTH had itself accepted project code „c‟ Pkg-13 as qualifying for the hill
road criteria. Once the respondent no.1 had accepted Pkg-13, they could not
have refused to extend the same recognition to Pkg-11 which is a parallel
package on the same expressway corridor in terms of the Work Done
Certificate and a detailed authority certificate also records explicitly
execution of slope protection works and RCC retaining walls for 12.398 kms
of hilly terrain and the same goes against the principles laid in Tata Cellular
(supra).
33. The failure to undertake independent verification before rejecting the
official certificate as per Mr. Taneja amounts to denial of fair procedure.
The petitioner had submitted adequate documents in support of their claim
but the TEC did not consider the same and mechanically brushed them aside
the same. He stated the actions of the TEC are against the ratio laid down in
Tata Cellular (supra) and S.R. Venkataraman (supra).
34. It is also his case that the rejection of the clarificatory certificate as
being termed as a new document is an erroneous and unreasonable exercise
of power. The characterisation of the certificate dated 23.02.2026 as a „new
document‟ demonstrates the wrong committed by the TEC. The said
certificate does not introduce any new extraneous fact but merely clarifies
and formally certifies the hilly terrain and nature of the BOQ items were
already a part of the original bid document. The authority has wrongly
labelled this document as a new document and these actions are against the
principles as laid down in Tata Cellular (supra) and S.R. Venkataraman
(supra).
35. Lastly, he contended that the petitioner‟s bid as the undisputed record
is highly competitive and would have come up as the L-1 bid. The
acceptance of the higher bid while excluding the technically qualified bidder
results in an avoidable and substantial financial prejudice to the public
exchequer. In support of his arguments, he has relied upon the judgment in
the case of Tata Cellular (supra) to contend that the principles of Article 14
under the Constitution must be kept in view while refusing or accepting her
tender if the power of choice is exercised for any collateral purpose, the
same must be struck down.
ANALYSIS
36. Having heard the learned counsel for the parties and perused the
record, the issue which arise for consideration in this petition is whether the
decision of the respondent no. 1 to treat the bid of the petitioner as non-
responsive is justified.
37. The TEC declared the bid of the petitioner as non-responsive in its
meeting dated 20.02.2026. The two grounds on which the petitioner‟s bid
was declared as non-responsive are: (a) non-compliance with similar work
criteria [clause 2.2.2.2(ii)] and; (b) non-compliance with threshold technical
capacity [clause 2.2.2.2(i)].
38. In respect of ground no. 1 above, the bidder is required to
demonstrate:
a. Value Threshold i.e., One similar work of more than Rs. 272.82
crores or two similar works of more than Rs. 197.73 crores each
and;
b. completion of HSP in a total length of 5 kms in the said similar
work i.e., within very same work satisfying the value threshold.
Each similar work is needed to comply with 5 km HSP.
39. The case of the respondent no. 1 as canvassed by Mr. Gautam is that
both the conditions are conjunctive. The case of the respondents is also that
the petitioner has failed to meet the criteria in respect of any of the three
projects relied as upon by the petitioner.
i. Project a Original retaining wall only 0.87 km (less
than 5 km)
The petitioner submitted altered certificate,
which is inadmissible.
ii. Project b Certificate silent on HSP - fails 5 km
condition.
iii. Project c 5 km HSP met - but the value far below Rs.
197.73 crores / Rs. 272.82 crores threshold.
40. Insofar as the ground (ii) of non-compliance with the threshold
technical capacity is concerned, the case of the respondent no. 1 is that as
per clause 2.2.2.2(i), the receipts from eligible projects in the last five
financial years exceeds the threshold technical capacity of Rs. 790.91 crores.
It is their case that in sub-contracting cases clause 2.2.2.5(iv) restricted the
claimable amount to the "approved sub-contract value" as approved by the
authority.
41. It is also their case that the petitioner relied upon project (a)
Maharastra Samruddhi Expressway Package-11 wherein it was the sub-
contractor to M/s. Gayatri Projects Limited, which was prime contractor
with MSRDC. The petitioner claimed receipts of Rs. 806.88 crores from this
project whereas the petitioner recorded the sub-contract value of only Rs.
303.14 crores as against the requirement of Rs. 790.91 crores. The case of
the respondent no. 1 is also by stating that only documents forming part of
the original bid shall govern the evaluation.
42. Whereas Mr. Taneja‟s submission is that the respondent no. 1 itself
had called upon the petitioner to furnish response/clarification on the aspect
of non-responsiveness. It is in compliance thereof that the petitioner
furnished detailed replies and documents, which according to him were not
considered and the respondent no. 1 proceeded with the tender process and
opened the financial bids. Having noted the above submission of Mr.
Taneja, we are of the view that the issue of non-responsiveness has to be
considered and decided on the basis of the bid and the clarification given by
the petitioner along with the documents submitted along with the bid.
43. On the aspect of eligibility criteria under clause 2.2.2.2(i), which is a
threshold technical capacity of Rs. 790,91,76,231/-, the case of the petitioner
as canvassed by Mr. Taneja is that the petitioner has executed/received
payment of Rs. 806.88 crores in the project „a‟ above. According to him, the
sub-contract was initially for Rs. 303.14 crores, which contract was
enhanced by Rs. 220.41 crores (on 20.06.2022) and further enhanced by Rs.
346.56 crores (on 14.02.2023) and hence meet the criteria. The aforesaid
submission of Mr. Taneja is not at all appealing. This we say so because of
clauses 2.2.2.2(i) and 2.2.2.2(ii) which are reproduced hereunder:-
"(i) For demonstrating technical capacity and experience
(the "Technical Capacity"), the Bidder shall, over the past
[5 (five)]financial years preceding the Bid Due Date, have
received payments for construction of Eligible Project(s), or
has undertaken construction works by itself in a PPP
project, such that the sum total thereof, as further adjusted
in accordance with clause 2.2.2.5 (i) & (ii), is more than the
"Threshold Technical Capacity" mentioned as below:
Particular Amount (in Rs.) in Words
Threshold ₹7,90,91,76,231 Seven Hundred Ninety
Technical Crore Ninety One Lakh
Capacity Seventy Six Thousand Two
Hundred Thirty One
(ii) For normal Highway projects (including Major
Bridges/ROB/Flyovers/Tunnels):
Provided that at least either of the following:
(i) Two similar completed works costing not less than
amount equal to 25% each of estimated cost.
or
(ii) One similar completed work costing not less than
amount equals to 35% each of estimated cost
[Similar work cost as in table below] shall have been
completed from the Eligible Projects in Category 1 and/or
Category 3 specified in Clause 2.2.2.5. 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).
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 abovementioned criteria in the last 5 (five)
financial years preceding the Bid Due Date or till the Bid
Due Date. Eligible projects shall include following:
(a) Widening/reconstruction/up-gradation works on
NH/SH/Expressway or on any category of road taken up
under CRF, ISC/El, SARDP, LWE
(b) Widening/reconstruction/up-gradation works on MDRs
with loan assistance from multilateral agencies or on BOT
basis
(c) Widening/reconstruction/up-gradation work of roads in
Municipal corporation limits, construction of Bypasses
(d) Construction of stand-alone bridges, ROBs, tunnels
(e) Construction/reconstruction of linear projects like
airport runways
(f) Viaducts of Railways/Metro
(g) Container yard of ports
Particulars Amount (in Rs.) In Words
Two Similar ₹ 1,97,72,94.058 One Hundred Ninety
Work each Seven Crore Seventy
costing Two Lakh Ninety
Four Thousand Fifty
Eight
One Similar ₹ 2,76,82,11,681 Two Hundred
work costing Seventy Six Crore
Eighty Two Lakh
Eleven Thousand
Six Hundred Eighty
One
Provided further that at least 1 similar work shall have been
completed from eligible projects in Category 1 and/or
Category 3 specified in clause 2.2.2.5 that involved
construction of hill road in at least 5 km length having 2
lane carriageway configurations. For this purpose, the work
of formation building along with hill and valley side slope
protection work shall have been completed in 5 km length.
The details of project(s) clamed under Hill Road Criteria
shall be furnished as per Annexure-IVA of Appendix IA.
If any Major Bridge/ROB/Flyover/Tunnel is (are) part of the
project, then the Bidder shall necessarily demonstrate
additional experience in construction of Major
Bridge/ROBs/Flyovers/Tunnel in the last 7 (Seven) financial
years preceding the Bid Due Date or till the Bid Due Date.
i.e. shall have completed at least one similar Major
Bridge/ROB/Flyover/Tunnel of following sizes:
(a) In case, longest span of Bridge/ROB/flyover is less than
or equal to 60 m, no additional qualification is required
(b) When longest span is more than 60 m: 80% of the
longest span or 100 m, whichever is less, of the structure
proposed in this project and 40% of the length of Major
bridge/ROB/Flyover or 2km, whichever is less, of the
structure proposed in this project.
And in case of tunnel, if any, shall have completed
construction of at least one tunnel consisting of single or
twin tubes (including tunnel(s) for roads/Railway/Metro
rail/irrigation/hydro-electric projects etc.) having at least
(a) In case Tunnel is a part of project having length less
than or equal to 200 m, then no additional qualification is
required.
(b) when length of tunnel more than 200 m: 80% of the
cross-sectional area of proposed tunnel or two-lane
highway tunnel cross-sectional area, whichever is less and
40% length of the tunnel to be constructed (other than cut
and cover method) in this project or 2 km, whichever is
less."
(emphasis supplied)
44. The aforesaid contemplates the claimed project, if sub-contracted, the
approval from the client/Government authority is required (restricted to
allowable sub-contracting limit). In the case in hand, the sub-contract as
given to the petitioner by M/s. Gayatri Projects Limited, which was
approved by MSRDC was worth Rs. 303.14 crores and nothing more. The
enhanced sub-contracts of Rs. 220.41 croes and Rs. 346.56 crores granted to
the petitioner were not expressly approved by MSRDC and in this regard,
we agree with the submission of Mr. Gautam and Mr. Sethi that clause
2.2.2.5(iv) mandated a proof of the authority‟s approval of sub-contract i.e.,
approval from MSRDC (in this case) and not merely an inter se agreement
between the private parties. Mr. Gautam and Mr. Sethi are also right in
contending that no document has been filed by the petitioner on record in
that regard. So, it follows that the eligibility must be restricted only to the
original sub-contract agreement, which is admittedly of the value of Rs.
303.14 crores.
45. Since, the petitioner has failed to satisfy the mandatory criteria of
clause 2.2.2.2(i), its bid could not have proceeded to the evaluation under
clause 2.2.2.2(ii), however, since the respondent no. 1 has disqualified the
petitioner on this ground as well, we have examined the legality of the rival
submissions.
46. That apart Mr. Gautam and Mr. Sethi are also justified in stating that
apart from the aforesaid threshold technical capacity, the bidder has also to
show completion of either of the following similar works:-
a. two similar completed works costing not less than 25% each of
the threshold technical capacity i.e. Rs. 197.72 crores (approx.)
each or;
b. one similarly completed work consisting not less than 35 % of
the threshold technical capacity i.e. Rs. 276.82 crores.
47. In the present case, the completed projects (b) and (c) relied upon by
the petitioner admittedly fail to satisfy the aforesaid criteria as they are ex-
facie less than Rs. 197.72 crores and therefore cannot be considered as
similar work. This leaves the petitioner with only one completed project (a)
for establishing eligibility. However, the completed project (a) relied upon
by the petitioner fails to fulfil clause 2.2.2.2(ii) on the similar work criteria
as this project does not fulfil the requirement of completion of 5 km hill road
and valleys side slope protection work, as discussed hereunder.
48. Now, coming to the eligibility of completing the hill slope protection
in a total length of 5 km within the same work is concerned, the clause
2.2.2.2(ii) contemplates hill and valley side slope protection work has been
completed in 5 km length. The requirement pertaining to completion of 5 km
hill road and valley side slope protection work is atleast one similar work
was modified by way of corrigendum dated 01.09.2025 and later by another
corrigendum dated 15.09.2025. The corrigendum dated 15.09.2025 reads as
under:-
"Slope protection works viz. retaining wall/breast
wall/gabion wall/hydro seedings/soil nailing/rock anchor or
any other slope protection work shall have been completed
in a total length of 5 km in the said similar work" at para
2.2.2.2 (ii) may be read as "Hill Slope protection works viz.
retaining wall/gabion wall/hydro seeding/ soil nailing/ rock
anchor or any other slope protection works shall have been
completed in a total length of 5 km in the said similar
work."
49. The above shows requirement under the bid was that the petitioner
should have completed 5 km hill slope protection work, which requirement
has not been fulfilled by the petitioner.
50. We agree with the submission of Mr. Gautam and Mr. Sethi that RFP
mandated a specified quantified and certified, 5 km threshold and not a
general characterisation of terrain in which the project was located. Even
Mr. Sethi, by drawing our attention to clause 2.2.2.2 would highlight that the
technical requirement pertains to 5 km of hill road and hill and valley slide
protection work in atleast one similar work. From the aforesaid table at
paragraph 17 above, it is clear that insofar as project code „a‟ is concerned,
the retaining wall is only 0.87 km as submitted with the original bid.
51. The project code „a‟ record slope protection by earth work in banking
as 54.49 km. According to Mr. Gautam, the retaining wall was only the
component that could qualify as HSP and at 0.87 km it falls short of 5 km.
According to him, the earth work in banking is not HSP as it involves filling
and compacting earth to form road embankments. In other words, it is
structurally distinct from HSP work, which protects the existing hill slope
from erosion and failure. It may be stated that the petitioner had submitted a
second certificate dated 15.09.2025, which according to Mr. Gautam
contained unexplained alterations being the deletion of (earth work in
banking) and alteration of retaining wall component from 0.87 km to 8.70
km, which is a tenfold increase by transposition of digits. According to him,
this document, which the petitioner had produced was not part of the
original bid and materially contradicted it. We agree with the submission
that law in this regard is well settled that post bid date documents cannot
cure eligibility, deficiencies and documents contradicting original bid
documents as such could not be considered. The plea of Mr. Taneja that
clarifications were sought would not mean that very documents filed along
with the bid are sought to be replaced by new documents. The clarification
must necessarily be read in a manner that clarifications sought are in respect
of documents which had already been filed. We hereunder reproduce both
the documents which were produced by the petitioner along with the bid and
later as certificate dated 15.02.2026:
SHARMA
Signing Date:06.04.2026
19:18:01
52. The contradictions in the certificate pertaining to project (a) with
respect to the area of retaining wall, makes it a sufficient ground for the
tendering authority to not rely upon these certificates.
53. The respondent no. 1 has explained that project (c) though meets the 5
km hill slope protection work criteria, however, since the value of the said
project was Rs. 113.27 crores it fails to meet the minimum threshold criteria
of Rs. 197.73 crores or Rs. 272.82 crores (as applicable) set out in clause
2.2.2.2(ii). The petitioner has been unable to rebut the said submissions. We
are of the considered opinion that the tendering authority‟s interpretation
that value of similar work has to be Rs. 197.73 crores or Rs. 272.82 crores is
in-conformity with the tender conditions and therefore project (c) has been
rightly held to be ineligible for qualification.
54. One of the pleas of Mr. Taneja was that respondent no. 1 has without
considering the representation of the petitioner dated 25.02.2026 has
proceeded to open the tender whereas the case of respondent no. 1 as
canvassed by Mr. Gautam is that the said representation was considered
along with representation dated 05.02.2026 by the TEC before financial bids
were opened on 12.03.2026. We agree with the said submission, as
according to Mr. Gautam, the financial bids were opened on 12.03.2026,
which is surely much after the representation dated 15.02.2026 was
submitted and in any case, Mr. Taneja has not contradicted the submission
made by Mr. Gautam that the representation was decided before the
financial bids were opened. So, this plea of Mr. Taneja is also unmerited.
55. Mr. Taneja has relied upon two judgments in the case, which are one
in the case of Tata Cellular (supra) and S.R. Venkataraman (supra), of
which the former has also been relied on by Mr. Sethi. However, we must
accept the argument as advanced by Mr. Sethi that it is held in Tata Cellular
(supra) that writ Courts should not sit as a court of appeal but only act as a
reviewing authority overseeing the manner in which a decision is made. Mr.
Taneja has argued that although Courts must exercise judicial restraint in
tender matters but the decision making process is amenable to judicial
review. However, in the facts of this case, we do not find it fit to exercise the
said power of judicial review as respondent no.1 is justified in the manner it
has made the decision, treating the bid of the petitioner "non-responsive".
56. Insofar as the judgment in the case of S.R. Venkataraman (supra)
wherein it was held that an order which is based on non-existent facts must
be seen as an abuse of power is concerned, the said judgment has no
applicability in the facts of this case and also in view of our findings above.
57. Before parting with the case, we must also add that Mr. Sethi and Mr.
Tandon are justified in relying upon the judgments in the cases of Tata
Motors Ltd. (Supra), N.G. Projects Ltd. (Supra) and Haffkine Bio-
Pharmaceutical Corporation Ltd. (Supra) wherein the Supreme Court has
consistently held that Courts must practise great restraint in tender matters
before exercising their powers under Article 226 of the Constitution and
must not sit as a court of appeal to supplant its own decision over the
Tendering authority and the same only leads to delay and costs borne by the
public exchequer. Furthermore, it is clear that the tender issuing authority
has been held to be the best judge of its own requirement.
58. In view of our reasoning above, this petition is dismissed as being
devoid of merit along with the pending application which is dismissed as
having become infructuous.
V. KAMESWAR RAO, J
MANMEET PRITAM SINGH ARORA, J
APRIL 06, 2026/sr
