Orissa High Court
M/S. Mishra Infra Projects vs State Of Odisha on 4 September, 2025
AFR ORISSA HIGH COURT : CUTTACK
W.P.(C) No.23853 of 2025
In the matter of Applications under Articles 226 and 227 of
the Constitution of India
***
M/s. Mishra Infra Projects,
represented through its Partner,
Shri Abakash Mishra,
aged about 31 years,
C/O:Basanta Kumar Mishra
residing at Prasanna Bihar,
Sonepur, Subarnapur, Odisha ... Petitioner
-VERSUS-
1. State of Odisha, represented through
Commissioner-cum-Secretary, Works
Department, Govt. of Odisha,
Bhubaneswar, Dist:Khurda.
2. The Technical Evaluation Committee,
Presided by Engineer-in-Chief
(Civil-cum-Roads), Odisha,
Nirman Soudh, Bhubaneswar,
Dist: Khurda.
3. The Chief Engineer (Roads-II), Odisha,
Office of the Engineer in Chief
(Civil-cum-Roads), Nirman Soudh,
Bhubaneswar, Dist: Khurda.
4. Chief Engineer (Roads-1), Office of
The Engineer in Chief (Civil-cum-Roads),
Odisha, Nirman Soudh,
Bhubaneswar, Dist:Khurda.
5. Superintending Engineer, Sambalpur
(R & B) Division No.-II, Sambalpur,
At/PO/Dist: Sambalpur. ... Opposite parties
Counsel appeared for the parties:
For the Petitioner : Mr. Prabodha Chandra Nayak,
Advocate
For the Opposite Parties : Mr. Saswat Das,
Addl.Government Advocate
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
Date of Hearing : 04.09.2025 : Date of Judgment : 04.09.2025
J UDGMENT
HARISH TANDON, C.J.--
Pursuant to a Detailed Tender Call Notice (DTCN)
made and published on 10th April, 2025 for
construction of a work relating to "Improvement such
as Widening and Strengthening of Bhojpur-Jamankira
road from 0/000 km to 13/695 km in the district of
Sambalpur under the State Plan", the petitioner
offered his bid - online and furnished the bank
guarantee for Earnest Money Deposit (EMD).
2. The authority opened the bid at the technical
stage and found that the petitioner has not complied
with the terms and conditions of the said DTCN,
hence, such bid was rejected. The reason assigned can
be reasonably discern from the communication made
to the petitioner that an exemption was sought for in
depositing the EMD through Swift Transaction (ST) or
directly into the bank account of the authority and
such EMD was furnished through bank guarantee
which is not strictly in the terms and conditions
embodied in the said DTCN.
3. The petitioner has challenged the said decision
rendering it disqualified on the premise that Clause 34
(ii) of the "DTCN for road and bridge work" postulates
the submission of EMD through bank Guarantee
which cannot be said to be, not in conformity with the
terms and conditions of the said tender document. It is
further submitted that the screenshot of the
e-procurement application would further corroborate
such stand where a Clause is put whether the EMD is
deposited through Bank Guarantee (BG)/Swift
Transfer (ST) or the other mode. Thus, the petitioner
contends that the decision rejecting his bid being not
in conformity with the terms and conditions of the
DTCN is unsustainable and liable to be quashed and
set aside.
4. However, the State took a stand that the old age
practice of procurement of a competitive rate in the
public contract by dropping the bid document into a
box kept on the conspicuous part of the office of the
concerned department, has seen a radical change
because of the advancement of technology and all the
tenders are floated online to be submitted in such form
which mandates the transfer of the amount in the form
of an EMD through a Swift Transfer (ST)/electronic
transfer mode, and therefore, such clause is
indispensable. It is further submitted that the various
clauses of the DTCN would evince that the transfer of
amount on account of an EMD through electronic
mode is mandatory and the clause which the petitioner
intend to rely upon is not applicable at the stage of
evaluating the validity of the offer or the tender being
in strict compliance of the terms and conditions
embodied therein. In other words, it is sought to be
contended that Clause 34 of the DTCN for road and
bridge work has to be interpreted in the context in
which it is so used without overriding the other
clauses of the DTCN which are mandatory and
imperative in nature.
5. However, at this stage, the petitioner relies upon
a subsequent corrigendum No.32139 dated 16th
August, 2025 issued by the office of the Engineer-in-
Chief (Civil-cum-Roads), Odisha wherein the said
Clause 34 (ii) of the DTCN was modified to the extent
of deleting the portion existed at the time of floating
the tender which permitted the EMD to be submitted
in the form of a bank guarantee.
5.1. According to the learned counsel for the
petitioner, the moment a conscious decision is taken
by the authorities in deleting such portion, it leads to
an inescapable inference that such clause was
applicable even at the stage of submission of a bid by
an intending contractor.
5.2. Obviously, the said corrigendum was issued by
the authority much after the last date of submission of
the bid as well as the opening of the bid by the
competent authority. It invites a question whether the
authority can modify and/or delete any terms and
conditions of the tender document after the last date of
submission of the bid document or opening of the said
bid document. It is somewhat settled that the
authorities cannot change the "rule of game" after the
same is played. If the corrigendum is issued by
modifying and/or deleting any terms and conditions of
the tender which renders some of the contractors
ineligible to participate therein, the same is susceptible
to be interfered with as the bidder who was otherwise
eligible to participate in the tender shall not be
rendered ineligible by issuance of such corrigendum
subsequent to the last date of submission of the bid or
after the opening of the bid.
5.3. Taking such clue, we have to proceed in
interpreting the applicability of Clause 34 (ii) of the
DTCN in juxtaposition with the other clauses of the
tender document and to interpret harmoniously, so
that each clause runs intandem and does not make
any of such Clauses otiose or redundant. In the event
two clauses in a contract cannot be reconciled or
manifestly appear to run counter to each other, the
first and foremost duty is to interpret those clauses in
such way to make them workable and eradicate any
possibility of overriding and/or rendering any such
clause subsumed into the other. It is a cardinal
principle of interpretation of a contract that each
clause embodied in the contract has to be read in the
context it is so used and should not be segregated or
dissected from the context to have an overriding effect
on the other clauses.
5.4. Bearing in mind the aforementioned broad
principle governing the field of interpretation of a
contract, let us examine from the facts discerned from
the record whether Clause 34 (ii) of the DTCN can
operate by complementing the other clauses of the said
DTCN. The Court should also take into consideration
that if two clauses of the contract can be harmonised
to operate in a specified field, the other interpretation
which would render any of such clauses inoperative
should be eschewed.
6. Undeniably, the tender was floated on 10th April,
2025 inviting the bid from the intending contractor for
the work as mentioned hereinabove to be submitted by
5th May, 2025. It further postulates that the bid so
received shall be opened on the next date in the office
of the Engineer-in-Chief (Civil-cum-Roads), Odisha,
Unit-V, Bhubaneswar in presence of the bidders who
wished to attend. Apart from the check list appended
to the said DTCN, the details of the contract data was
also annexed thereto to be strictly observed and its
compliance should be ensured by every intending
bidder. The said document contained the procedure for
participation in online bidding, i.e., e-procurement,
wherein Clause 2 is relatable to the payment of
EMD/Bid Security and cost of the bid document. The
said Clause is reproduced as under:
"2. PAYMENT OF EMD/BID SECURITY AND COST
OF BID DOCUMENTS: The Bidder shall furnish, as
part of his Bid in shape of Bid security as
mentioned in the Contract Data. Non-submission of
bid security within the designated period shall
debar the bidder from participating in the on-line
bidding system and his portal registration shall be
cancelled. His name shall also be informed to the
registering authority for cancellation of his
registration.
2.1 The EMD or Bid Security payable along with the
bid is 1% of the estimated contract value, (ECV) or
as mentioned in the bid document.
2.2 Deleted.
2.3 The tender accepting authority will verify the
originals of all the scanned documents of the
successful lowest bidder only within 5 days of
opening of the tender (price bid). In the eventuality
of failure on the part of the lowest successful bidder
to procedure the original documents, he will be
debarred in future from participating in tender for 3
years and will be black listed by the competent
authority. In such as situation, successful L-2
bidder will be required to produce his original
documents for consideration of his tender at the
negotiated rate equal to L1 bidder.
2.4 Contractor exempted from payment of EMD will
be able to participate in the tender directly by
uploading documentary evidences towards his
eligibility for such exemption.
2.5 Government of Odisha has introduced e-
payment gateway in to the portal for payment of
cost of Bid and Bid Security Earnest Money Deposit.
The process of using e-payment gateway is
mentioned in the "Procedure for Electronic
receipt, accounting and reporting of Cost of
Tender Paper and Earnest Money Deposit on
submission of bids".
6.1. Clause 3 of the Procedure for Electronic Receipt,
Accounting and Reporting of the Cost of the Tender
Paper and Earnest Money Deposit at the time of
submitting the bid, makes it imperative on the bidders
to successfully remit their cost of the tender paper and
earnest money deposit to participate in the tender bid
process and the mode of making such payment is also
provided in Clauses 3, 4 and 5 of the same in the
following manner:
"3. Only those bidders who successfully remit their
Cost of Tender Paper and Earnest Money
Deposit on submission of bids would be eligible
to participate in the tender/bid process. The
bidders with pending or failure payment status
shall not be able to submit their bid. Tender inviting
authority, State Procurement Cell, NIC, the
designated Banks shall not be held responsible for
such pendency or failure.
4. Banking arrangement:
a) Designated Banks (SBI/ICICI Bank/HDFC Bank)
payment gateway are being integrated with e-
Procurement portal of Government of Odisha
(https://tendersodisha.gov.in)
b) The Designated Banks participating in
Electronic receipt, accounting and reporting of
Cost of Tender Paper and Earnest Money
Deposit on submission of bids will nominate a
Focal Point Branch called e-FPB, who is authorized
to collect and collate all e-Receipts. Each such
branch will act as the Receiving branch and Focal
Point Branch notwithstanding the fact that the
bidder might have debited his account in any of the
bank's branches while making payment.
5. Procedures of bid submission using electronic
payment of tender paper and EMD by bidder:
a) Log on to e-Procurement Portal: The bidders
have to log onto the Odisha e-Procurement portal
(https://tendersodisha.gov.in) using his/her digital
signature certificate and then search and then
select the required active tender from the "Search
Active Tender" option. Now, submit button can be
clicked against the selected tender so that it comes
to the "My Tenders" section.
(b) Uploading of prequalification/Technical/Fi
nancial bid: The bidders have to upload the
required prequalification/Technical/Financial bid,
as mentioned in the bidding document and in line
with Works Department office memorandum
no.7885, dt.23.07.2013.
c) Electronic payment of tender paper cost and
EMD: Then the bidders have to select and submit
the bank name as available in the payment options
i. A bidder shall make electronic payment using
his/her internet banking enabled account with
designated Banks or their aggregator banks.
ii. A bidder having account in other Banks can
make payment using NEFT/RTGS facility of
designated Banks.
Note: An affidavit by the bidder to the effect
that the e-payment through internet
banking/NEFT/RTGS from designated banks or
their aggregated banks has been made from
his own account.
Online NEFT/RTGS payment using internet
banking of the bank in which the bidder holds his
account, by adding the account number as
mentioned in the challan as an interbank
beneficiary.
d) Bid submission: Only after receipt of intimation
at the e-Procurement portal regarding successful
transaction by bidder the system will activate the
'Freeze Bid Submission' button to conclude the bid
submission process.
e) System generated acknowledgement receipt
for successful bid submission: System will
generate an acknowledgement receipt for successful
bid submission. The bidder should make a note of
'Bid ID' generated in the acknowledgement receipt
for tracking their bid status."
6.2. On a meaningful reading of the language
employed in the above quoted clause being an integral
part of the DTCN, there is no ambiguity in our mind
that the cost for the tender papers and the earnest
money deposit has to be made through online and any
infraction in this regard shall invite the rejection of the
bid by the Competent Authority. The clauses
appearing in the said DTCN as quoted hereinabove,
conveys a laudable intention of the authority that
while adopting the process of inviting the tender
through online mode, the documents in a physical
form are to be avoided. Even the payment through
online mode is required to be made by the contractor,
this is made mandatory condition of the DTCN. There
is no dissent on the part of the appearing counsel in
this regard, but they are at variance so far as the
applicability of the several clauses as mentioned
hereinabove in relation to the submission of the bid
under the said DTCN.
7. Before we proceed to interpret the applicability
and the nuances of the different clauses of DTCN, it
would be apposite and profitable to quote "Clause 34"
appearing in Detailed Tender Call Notice For Road and
Bridge Works, which runs thus:-
"34. (i) The bidder/tenderer whose bid has been
accepted will be notified of the award by the
Engineer-In-charge prior to expiration of the
validity period by cable, telex or facsimile
confirmed by registered letter. This letter
(hereinafter and in the conditions of Contract
called the "Letter of Acceptance") will state the
sum that the Engineer-In-charge will pay the
contractor in consideration of the execution,
completion and maintenance of the Works by the
contractor as prescribed by the contract
(Hereinafter and in the contract called the
"Contract Price").
(ii) The notification of award will constitute the
formation of the contract, subject only to the
furnishing of a performance security (initial
security Deposit) in form of N.S.C./Post Office
Savings Bank account/Post Office Time Deposit
Account/Kishan Vikas Patra/Bank Guarantee in
favour of the Divisional Officer from any
nationalized Scheduled Bank in India counter
guaranteed by its local Branch at
Bhubaneswar/ e-Bank Guarantee executed on
the National e-Governance Services Limited
(NeSL) Digital Document Execution Portal &
additional performance security as per clause
28 of DTCN & in other form which shall be 2% of
the value of the tendered amount & sign the
agreement in the PWD Form P1 of the fulfillment
of the contract in the office of the Executive
Engineer & payable at the place as specified in
the Contract Data or as directed. The
EMD/Initial security deposit/any other security
deposit may also be taken from the contractor in
form of N.S.C./Post Office Savings Bank
account/Post Office Time Deposit
Account/Kishan Vikas Patra/Bank Guarantee in
favour of the Divisional Officer from any
nationalized Scheduled Bank in India counter
guaranteed by its local Branch at
Bhubaneswar/e-Bank Guarantee executed on
the National e-Governance Services Limited
(NeSL) Digital Document Execution Portal. The
security deposit and the amount withheld
according to the provision of P1 agreement shall
be retained as security for the due fulfillment of
this contract & additional performance security
in accordance with the provisions of the
agreement."
7.1. The meaningful reading of Clause 34 more
particularly sub-clause (ii) at the first blush inculcate
a sense that it can be compartmentalized in two parts;
firstly, the submission of the performance guarantee in
the form of N.S.C./Post Office Savings Bank
account/Post Office Time Deposit Account/Kishan
Vikas Patra/Bank Guarantee in favour of the
Divisional Officer from any nationalized Scheduled
Bank in India counter guaranteed by its local Branch
at Bhubaneswar; and secondly, EMD/initial security
deposit/any other security deposit may also be taken
from the contractor in the manner as indicated in the
first compartment of the said section.
7.2. According to the petitioner, the second
component of the said clause is omnibus and operate
in general sense, and, therefore, if restrictive meaning
is assigned, that would frustrate the object and the
intention sublime the incorporation thereof.
7.3. On the other hand, the State submits that
Clause 34 has to be read in the context in which it is
so used and its applicability is restricted to the Stage
which is obviously the stage posterior to the
declaration of the successful bidder. It is sought to be
contended that the second compartment of the said
sub-clause (ii) of Clause 34 of the procedure part
remained in the document which at one point of time,
gains a significance, more particularly, when the
tender process used to be done in a physical manner.
After the adaptation of the technology, the
conventional and/or traditional way of inviting the
tender has seen a paradigm shift and all tender
processes are being conducted through online mode,
and, therefore, the clauses which are relatable to
online mode has a primacy over the clauses which by
passage of time and adaptation of the technology
becomes obsolete and/or inappropriate.
8. Such being the stand and the fact that the said
clause remained an integral part of the tender
document, let us examine whether the same runs in
conflict with earlier clause or may supplement them
instead of supplanting them. One of the cardinal
principles of interpretation of the contract is to read
the contract as a whole and not in a piecemeal
manner. The clauses contained in the contract have to
be interpreted in the context, in which it is so used.
The Court should avoid and/or stay away from
assigning any interpretation which the author of the
document did not perceive. Clause 34 has two sub-
clauses, wherein the first sub-clause manifestly
indicate that the bidder/tenderer whose bid has been
accepted will be notified of the award by the Engineer-
In-charge prior to the expiration of validity period by
cable, telex or facsimile confirmed by registered letter,
whereas sub-clause (ii) starts with the expression
"the notification of award will constitute the formation
of a contract, subject only to the furnishing of a
performance security (initial security Deposit) in form
of N.S.C./Post Office Savings Bank account/Post
Office Time Deposit Account/Kishan Vikas
Patra/Bank Guarantee in favour of the Divisional
Officer from any nationalized Scheduled Bank in India
counter guaranteed by its local Branch at
Bhubaneswar/e-Bank Guarantee executed on the
National e-Governance Services Limited (NeSL) Digital
Document Execution Portal & additional performance
security as per clause 28 of DTCN & in other form
which shall be 2% of the value of the tendered amount
& sign the agreement in the PWD Form P1 of the
fulfillment of the contract in the office of the Executive
Engineer & payable at the place as specified in the
Contract Data or as directed. The EMD/Initial security
deposit/any other security deposit may also be taken
from the contractor in form of N.S.C./Post Office
Savings Bank account/Post Office Time Deposit
Account/Kishan Vikas Patra/Bank Guarantee in
favour of the Divisional Officer from any nationalized
Scheduled Bank in India counter guaranteed by its
local Branch at Bhubaneswar/e-Bank Guarantee
executed on the National e-Governance Services
Limited (NeSL) Digital Document Execution Portal. The
security deposit and the amount withheld according to
the provision of P1 agreement shall be retained as
security for the due fulfillment of this contract &
additional performance security in accordance with
the provisions of the agreement."
8.1. Conjoint reading of the aforesaid sub-clause
exposits its applicability at the particular stage. Sub-
clause (i) makes imperative on the Engineer-In-charge
to notify the award by communicating with the bidder
and/or tenderer whose bid has been accepted and
sub-clause (ii) with such opening expression conveys
an intention that after notification of the award which
would constitute the formation of the contract, the
successful bidder/tenderer has to fulfill the conditions
as incorporated therein. The conditions so imposed in
aforementioned Clause 34 are applicable to the
tenderer/bidder whose bid has been accepted and not
at the stage of pre-acceptance of a bid. Any other
interpretation would frustrate the intention relating to
the notifying of the award. If the second component of
sub-clause (ii) of Clause 34 is interpreted to operate
independent of the notifying of an award, it would
frustrate the purpose of its operation in the specified
eventualities. The moment the expressions and/or the
words are used in a particular clause and in the event
the Court finds that such clause operates in a
specified situation and/or contingencies, the Court
should ascribe the meaning to the words and the
expression used therein keeping in mind the broader
context in which it is so used and should not dissect
and/or segregate a portion thereof to have its
applicability in other situations as well. The resultant
effect of the reading of the language used therein that
the said clause is applicable in the event of acceptance
of the bid submitted by the tenderer followed by the
notification of an award and therefore, the submission
of the EMD through bank guarantee as incorporated
in sub-clause (ii) of Clause 34 is applicable only after
the notification of an award by the Competent
Authority which culminated into a concluded contract
and cannot be applied in an adjunct manner as
sought to be projected by the petitioner before this
Court.
8.2. Though some of the grounds assigned by the
authority in the order rejecting the bid submitted by
the petitioner at the technical bid stage does not
appear to be proper as the petitioner never claimed for
exemption from submitting the earnest money deposit
but has furnished the bank guarantee for such EMD
taking aid from sub-clause (ii) of Clause 34 of the said
DTCN, therefore, such observations may not be in
commensurate with the terms of the DTCN. Since the
submission of the bank guarantee at the time of
offering the bid is not in conformity with the other
conditions of the DTCN, we do not find any infirmity
and/or illegality in the ultimate decision of the
authority in rejecting the bid of the petitioner at the
technical bid stage.
9. Accordingly, the writ petition stands disposed of.
No costs.
(HARISH TANDON)
CHIEF JUSTICE
(MURAHARI SRI RAMAN)
Signed by: BICHITRANANDA SAHOO
Location: Orissa High Court, Cuttack
Date: 08-Sep-2025 20:37:52
High Court of Orissa, Cuttack
The 4th September, 2025/Bichi/Aswini
