Patna High Court
Basant Kumar vs The State Of Bihar on 9 October, 2025
Author: P. B. Bajanthri
Bench: Alok Kumar Sinha, P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11886 of 2025
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Basant Kumar Son of Sri Ram Chandra Prasad Resident of Kailash Nagar,
Gali No.-1, Old G.T. Road, P.S.- Sasaram, District- Rohtas.
... ... Petitioner/s
Versus
1. The State of Bihar through Additional Chief Secretary, Rural Works
Department, Government of Bihar, Patna.
2. The Engineer- In- Chief, Rural Works Department, Government of Bihar,
Patna.
3. The Chief Engineer-2, Rural Works Department (Gaya), Government of
Bihar, Patna.
4. The Superintending Engineer, Work Circle- Sasaram, Rural Works
Department, Government of Bihar, Patna.
5. The Nodal Officer, MMGSUY, Rural Works Department, Government of
Bihar, Patna.
6. The Executive Engineer, Rural Works Department, Works Division-
Sasaram-1, District- Rohtas.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prabhat Ranjan, Adv.
Mr. Ansh Prasad, Adv.
Mr. Shubham Prakash, Adv.
For the Respondent/s : Mr. P.K. Shahi, Advocate General
Mr. Vikas Kumar, Adv.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR SINHA)
Date : 09-10-2025
Heard the parties.
2. The petitioner in the present writ application seeks the
following main relief:
"(i) Quashing of the decision of the
Technical Evaluation Committee as contained
in Memo No. 2469 dated 30.06.2025
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
2/34
(Annexure P/6) (uploaded on 01.07.2025) by
which mechanically differing with the report of
the jurisdictional Executive Engineer with
regard to the insufficient bid capacity of the
Respondent No. 6 and without assigning any
reason the technical bid of the Respondent No.
6 was declared to be responsive.
(ii) Quashing of the decision of the
Technical Evaluation Committee as contained
in Memo No. 2477 dated 01.07.2025
(Annexure P/7) by which in the absence of any
objection and on the same day on which the
earlier proceeding was uploaded, without
there being any chance in circumstance, the
technical evaluation committee has
reconvened its meeting and reiterated the
earlier decision with regard to the declaration
of responsiveness of the technical bid of
Respondent No. 6.
(iii) Quashing of the decision of the
Technical Bid Evaluation Committee bearing
Memo No. 2611 dated 14.07.2025 (Annexure
P/9) by which after financial bid evaluation,
the Respondents have re-evaluated the
technical bid of the Lowest Bidder (L-1) and
subsequently, declared his technical bid
responsive on account of insufficient bid
capacity, and entire tender has been
recommended to be canceled with the further
recommendation for re-advertisement for the
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
3/34
reason that the rates have been opened and the
confidentiality of the tender stands vitiated.
(iv) Directing the Respondents to
consider the Representation/ Request dated
16.05.2025
(Annexure P/10) wherein, the
petitioner has requested for award of work in
his favour as he was the 2nd Lowest Bidder
and has consented to complete the work at the
lowest evaluated price as quoted by L-1; and
(v) Restraining the Respondents
from giving effect to the decision contained in
Memo No. 2611 dated 14.07.2025 during the
pendency of the present writ application
and/or the without the leave of this Hon'ble
Court.
(vi) Quashing of the Short Notice
Inviting Tender No. RRRSMP-15/2025-26
dated 22.07.2025 signed by the Engineer In-
Chief and uploaded on 26.07.2025 by which
giving effect to the Impugned Order of
cancellation of the earlier tender, the work
which is the subject matter of the present writ
application has been re-advertised on the same
terms and conditions; and"
3. Learned counsel for the petitioner, while assailing the
impugned decisions of the Respondents, has set out the broad facts
and grounds upon which the present writ application rests. It is
submitted that the petitioner is a contractor registered in Class-I
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
under the Bihar Contractors Registration Rules, 2007 and has been
engaged in execution of various works on behalf of governmental
organizations.
4. The genesis of the controversy, as canvassed by the
petitioner, lies in the issuance of Notice Inviting Tender No.
RRRSMP-15/2024-25 dated 27.02.2025 for "Initial Rectification,
Minor Improvement, Surface Renewal, Construction of
Bridge/Drainage/Protection Work including Operation and
Management for the Rural Road Strengthening and Management
Program under the component of Mukhya Mantri Gramin Sadak
Unnayan Yojana (GEN) (MMGSUY)," with special reference to
Package No. RRRSMP/24-25 Sasaram-1/11 at Serial No. 1, the
total contract value being Rs. 3520.452 Lacs (Annexure: P/1).
5. It is submitted that altogether ten bidders, including
the petitioner, participated in the tender process. The Five-Member
Technical Bid Evaluation Committee, chaired by the Departmental
Engineer In-Chief, convened on 06.05.2025 for evaluation of
technical bids, and vide Memo No. 1643 dated 08.05.2025
(Annexure: P/1) declared seven bidders, including M/s Shanti
Construction, technically responsive, while three bidders were
declared non-responsive. An option was granted to file objections
within five working days. Exercising such option, the petitioner
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
filed a detailed objection on 16.05.2025 (Annexure: P/3) against
the declaration of technical eligibility of three bidders, namely,
M/s Shanti Construction, M/s Govind Madhav, and V.S.
Construction, inter alia contending that M/s Shanti Construction
lacked the requisite bid capacity.
6. It is urged that despite this objection, the Technical
Bid Evaluation Committee, upon re-convening on 10.06.2025,
vide Memo No. 2220 dated 12.06.2025 (Annexure: P/4), reiterated
its earlier decision without properly dealing with the contentions
raised. Once again, the petitioner was constrained to file another
affidavit-ed objection on 13.06.2025 (Annexure: P/5) specifically
pointing out insufficiency of bid capacity of M/s Shanti
Construction and requesting re-calculation after taking into
account works already allotted in Aurangabad Division. On the
basis of this objection, a report was called from the jurisdictional
Executive Engineer, who categorically reported that M/s Shanti
Construction lacked the requisite bid capacity. Notwithstanding
this, vide Memo No. 2469 dated 30.06.2025 (Annexure: P/6) , the
Technical Bid Evaluation Committee reiterated its earlier stand,
declaring the bid of M/s Shanti Construction technically
responsive without assigning any reason for disregarding the
Engineer's report. The said decision was followed by yet another
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
decision bearing Memo No. 2477 dated 01.07.2025 (Annexure:
P/7), passed in undue haste on the very day the earlier decision
was uploaded and without waiting for the objection period to
lapse.
7. Learned Counsel for the petitioner further submits
that on 05.07.2025, the financial bids were opened. M/s Shanti
Construction was declared as the lowest bidder (L-1) having
quoted 5.77% below the estimated rate, while the petitioner was
declared the second lowest bidder (L-2), having quoted 5.05%
below the estimated rate. The grievance of the petitioner, as urged
by learned counsel, is that surprisingly, after opening of financial
bids and declaration of the lowest bidder, the Committee, in the
absence of any objection, re-convened on 12.07.2025, this time
without one of its prominent members, and re-calculated the bid
capacity of M/s Shanti Construction. It was then found that the
said bidder did not, in fact, possess the requisite bid capacity, as
the petitioner had consistently maintained. Consequently, vide
Memo No. 2611 dated 14.07.2025 (Annexure: P/9), the Committee
decided to recommend cancellation of the tender and re-
advertisement of the work on the ground that confidentiality of
financial bids had already been compromised.
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
8. Aggrieved thereby, the petitioner vide
communication dated 16.07.2025 (Annexure P/10) expressed
willingness to execute the work at the L-1 rate quoted by M/s
Shanti Construction. The Respondents, however, declined to
consider such willingness and instead proceeded with their
decision to cancel the tender.
Learned counsel for the petitioner contends that the
impugned decisions contained in Memo Nos. 2469 dated
30.06.2025, 2477 dated 01.07.2025, and 2611 dated 14.07.2025
are wholly arbitrary, contrary to the established principles of
tender law, dehors the Standard Bidding Document, and vitiated
by non-application of mind. It is submitted that:
(i) The decisions of 30.06.2025 and 01.07.2025 are non-
speaking and contrary to the materials on record, particularly the
report of the Executive Engineer, which clearly held that M/s
Shanti Construction lacked bid capacity.
(ii) The decision dated 01.07.2025 was premature, being
passed without lapse of the objection period, and further suffers
from procedural irregularity due to absence of a key committee
member.
(iii) The decision dated 14.07.2025 is vitiated by the
principle of coram non judice and is without jurisdiction, inasmuch
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
as there is no provision in law for re-evaluating the technical bid
after the financial bid has been opened and the lowest bidder
declared.
(iv) The Respondents acted illegally in ignoring the
objections filed by the petitioner thrice, only to later accept the
same objections after financial bids had been opened, thereby
causing prejudice to the petitioner.
(v) Upon disqualification of the lowest bidder, the
Respondents ought to have invited the petitioner, being the second
lowest bidder, to express willingness to perform the work at the L-
1 rate. Instead, they arbitrarily recommended cancellation and re-
advertisement, which is against both settled practice and
departmental precedents (Memo No. 448 dated 05.05.2025 and
Memo No. 2206 dated 21.06.2025).
9. It is thus urged by the learned counsel for the
petitioner that the Respondents, by cancelling the tender process,
have sought to take advantage of their own wrong, to the detriment
of the petitioner. The decision also entails avoidable delay, re-
advertisement formalities, and cost escalation, all to the prejudice
of public interest. It is thus submitted that the relief sought by the
petitioner would not adversely affect the Respondents; rather, it
would serve the larger public interest by avoiding unnecessary
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
procedural duplication and ensuring timely execution of the
project. The learned counsel for the petitioner, therefore, prays for
quashing of the impugned decisions and for issuance of
appropriate directions to the Respondents to allot the work to the
petitioner at the L-1 rate quoted by M/s Shanti Construction.
10. Learned counsel for the respondents has filed a
detailed counter affidavit traversing the allegations made in the
writ application. It has been submitted at the very outset that the
impugned decisions of the Technical Bid Evaluation Committee
are in conformity with the Standard Bidding Document, the
governing provisions of the Notice Inviting Tender (NIT), and the
settled norms for disposal of tenders.
11. It is the stand of the respondents that pursuant to the
Notice Inviting Tender bearing No. RRRSMP-15/2024-25 dated
27.02.2025 in relation to the works under the Mukhya Mantri
Gramin Sadak Unnayan Yojana (MMGSUY), a total of ten bidders
including the petitioner had submitted their bids. The Technical
Bid Evaluation Committee, in its meeting dated 06.05.2025,
evaluated the technical bids and declared nine bidders, including
the petitioner, to be technically responsive, which was
communicated through Memo No. 1643 dated 08.05.2025
(Annexure: R/A).
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
12. Learned counsel for the respondents submits that
objections were thereafter filed by certain bidders including the
petitioner, and the same were duly considered by calling for
reports from the jurisdictional Executive Engineer. On the basis of
such reports, the Technical Bid Evaluation Committee re-convened
its meetings on 10.06.2025 and 27.06.2025 and reiterated its
findings, declaring the petitioner qualified, as reflected in Memo
Nos. 2220 dated 12.06.2025 and 2469 dated 30.06.2025
respectively.
It has further been submitted that upon noticing a defect
in the calculation of bid capacity of M/s Shanti Construction, the
Committee again re-convened on 01.07.2025 and issued Memo
No. 2477, reaffirming its earlier conclusions. The respondents
assert that the Committee acted within its jurisdiction in correcting
technical assessments and ensuring conformity with bid capacity
requirements. The financial bid was thereafter opened on
05.07.2025, wherein M/s Shanti Construction was declared as the
Lowest Bidder (L-1), while the petitioner was ranked second (L-
2). However, upon further scrutiny of the bid capacity of M/s
Shanti Construction, and after recalculation, it emerged that the
said bidder lacked the requisite capacity as the works already
allotted to it had substantially reduced its permissible capacity.
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
13. Learned counsel for the respondents submits that in
such circumstances, the Technical Bid Evaluation Committee, by
its meeting held on 12.07.2025, recommended cancellation of the
tender process and re-advertisement of the work, which decision
was communicated vide Memo No. 2611 dated 14.07.2025. The
said recommendation, it is urged, was made strictly in light of
Clause 33 of the NIT which reserves to the Engineer-in-Chief the
right to reject any or all bids and to cancel the bidding process at
any time prior to the award of contract without assigning any
reason. It is the stand of the respondents that once the financial
bids had been opened and the confidentiality of rates stood
compromised, there was no alternative available except to cancel
the tender and proceed for re-tendering. In such a situation,
awarding the work to the petitioner as L-2 could not have been
considered in the absence of any enabling provision in the
Standard Bidding Document or the NIT.
14. Learned counsel for the respondents has thus
emphasized that the grievance of the petitioner is misconceived
inasmuch as the petitioner's objections were duly considered on
multiple occasions, reports were called for and examined, and the
process was reviewed no less than five times before arriving at the
final decision. It is contended that the petitioner cannot seek
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
enforcement of a claim for award of contract as L-2 in the absence
of a statutory or contractual provision to that effect. It is thus urged
that the writ application is devoid of merit, as the decision
impugned has been taken in public interest, to preserve the
integrity of the tender process, and strictly in terms of the powers
reserved under the NIT.
ISSUES IN QUESTION:
1. Whether the decision of the Technical Bid Evaluation
Committee declaring the technical bid of Shanti Constructions as
responsive, despite the contrary report of the jurisdictional
Executive Engineer regarding insufficient bid capacity, suffers
from arbitrariness or non-application of mind?
2. Whether the subsequent re-evaluation and reiteration
of the decision of the Technical Bid Evaluation Committee on
01.07.2025, without any material change in circumstances, is
legally sustainable?
3. Whether the final decision of the Technical Bid
Evaluation Committee dated 14.07.2025, cancelling the entire
tender process on the ground of insufficient bid capacity of the
Lowest Bidder (L-1) and breach of confidentiality of the tender,
was in accordance with Clause 33 of the Notice Inviting Tender
(NIT)?
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
4. Whether the petitioner, being the second lowest
bidder and having expressed willingness to execute the work at the
rate quoted by the Lowest Bidder (L-1), has any enforceable legal
right to claim award of the contract in his favour?
5. Whether this Court, in exercise of its writ jurisdiction
under Article 226 of the Constitution of India, has the power to
interfere in the decisions of the Technical Bid Evaluation
Committee and the tendering authority, particularly in matters
involving evaluation of bid capacity, responsiveness, and
cancellation of tender?
FINDINGS:
Issue No.1: Whether the decision of the Technical Bid
Evaluation Committee declaring the technical bid of Shanti
Constructions as responsive, despite the contrary report of the
jurisdictional Executive Engineer regarding insufficient bid
capacity, suffers from arbitrariness or non-application of mind?
Having considered the materials on record, it is evident
that the jurisdictional Executive Engineer, by his report dated
26.06.2025, clearly pointed out that the bid capacity of Shanti
Construction was deficient in comparison to the requirement
prescribed under the Notice Inviting Tender. Notwithstanding the
said report, the Technical Bid Evaluation Committee, in its
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
meeting held on 30.06.2025, proceeded to declare the bid of Shanti
Construction as responsive, without recording any cogent reason
for differing with the findings of the Engineer. This Court finds it
difficult to hold such action as a proper exercise of discretion. The
absence of reasoning, particularly when an adverse report was
available on record, does reflect a degree of arbitrariness and non-
application of mind.
At the same time, the subsequent conduct of the
respondents cannot be overlooked. The Committee, upon further
scrutiny and calculation of bid capacity, ultimately found that
Shanti Construction did not meet the requisite bid capacity and,
accordingly, in its meeting dated 12.07.2025, recommended
cancellation of the entire tender, culminating in Memo No. 2611
dated 14.07.2025. Such cancellation was not only premised on the
insufficiency of bid capacity but also on the breach of
confidentiality of the financial bids already opened. In these
circumstances, the decision to re-tender the work stands as a
corrective measure.
It is settled law that the State or its instrumentalities are
entitled to cancel a tender process if the integrity of the process is
compromised, provided the action is not mala fide. In Michigan
Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216, the
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
Hon'ble Supreme Court held that in the matter of awarding
contracts, the authority has the right to decide whether to accept or
cancel bids, and interference is permissible only where the action
is patently arbitrary or intended to favour someone. Likewise, in
Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation
Ltd., (2016) 16 SCC 818, the Court reiterated that a tendering
authority is the best judge of its requirements and judicial review
must remain limited. In Montecarlo Ltd. v. NTPC Ltd., (2016) 15
SCC 272, it was held "that in the competitive commercial field in
the matter of award of contract through tender, the conditions
regarding bidder's expertise and technical capability and capacity
are decided by the experts"
Applying the above principles in the facts of the present
case, though the declaration of Shanti Construction's bid as
responsive on 30.06.2025 was not justified, the respondents, by
cancelling the tender and opting for re-tender, have rectified the
process. This subsequent corrective action militates against any
allegation of malafides or arbitrariness in the ultimate decision.
Accordingly, while the action of the Technical Bid
Evaluation Committee dated 30.06.2025 in declaring Shanti
Construction responsive cannot be sustained as a reasoned
decision, the later step of cancelling the tender and proceeding for
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
re-tender reflects fairness, transparency, and due compliance with
Clause 33 of the Notice Inviting Tender.
Issue No. 2. Whether the subsequent re-evaluation and
reiteration of the decision of the Technical Bid Evaluation
Committee on 01.07.2025, without any material change in
circumstances, is legally sustainable?
The record reflects that after the Technical Bid
Evaluation Committee declared Shanti Construction's technical
bid as responsive vide Memo No. 2469 dated 30.06.2025, the
Committee re-convened on 01.07.2025 and reiterated the earlier
decision through Memo No. 2477. It is pertinent to note that this
reiteration was undertaken on the same day the earlier decision
was uploaded and without any fresh objection, supplementary
report, or change in factual circumstances. The Executive
Engineer's report, which had pointed out that the bid capacity of
Shanti Construction was insufficient, was already available on
record, yet no further reasoned discussion was recorded in the
proceedings of 01.07.2025.
This Court observes that from a procedural standpoint,
the reiteration of the earlier decision without any new material
consideration cannot be said to constitute an exercise of
administrative discretion in its ideal form. The principles of
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
reasoned decision-making require that where an authority departs
from or differs with the recommendations of a subordinate officer,
particularly in matters such as technical evaluation of bids, such
divergence should be expressly recorded with reasons. In this case,
the Technical Bid Evaluation Committee did not indicate why the
Executive Engineer's report was not being accepted, nor did it
elucidate why the earlier decision required reiteration.
Applying the principles of arbitrariness, mala fide
conduct, or non-application of mind, the reiteration of order dated
01.07.2025, standing alone, may be viewed as procedurally flawed
because it did not adequately address the concerns raised by the
Executive Engineer and did not provide a reasoned basis for
repeating the earlier decision. But this could have been a matter of
judicial review when the tender process would have been
concluded declaring L1 as the successful bidder despite these
lapses. However, the Court also notes that this procedural lapse
was immediately rectified by the respondents. Upon further
scrutiny, including detailed calculation of Shanti Construction's
bid capacity and consideration of the breach of confidentiality
arising from the opening of financial bids, the Committee, in its
meeting dated 12.07.2025, and subsequently via Memo No. 2611
dated 14.07.2025, recommended cancellation of the tender and re-
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
advertisement. This subsequent corrective action demonstrates that
the respondents recognized the inadequacy of the earlier
procedural step and took appropriate measures to ensure fairness,
transparency, and integrity in the tendering process.
It is well established that the tendering authority has the
discretion to cancel a tender if it is found that the integrity of the
process is compromised, provided such discretion is exercised in
good faith. The principle that the authority inviting tenders is the
best judge of its requirements, and judicial interference is
warranted only in cases of malafide action or perversity has been
reiterated in a catena of judgments by the Hon'ble Apex Court.
In the present case, while the decision dated 01.07.2025
was not fully reasoned and arguably procedural impropriety
existed, the respondents have rectified the lapse by cancelling the
tender and initiating a fresh bidding process. This corrective step
effectively neutralizes any adverse effect arising from the
reiteration and upholds the overall fairness and legality of the
tender process. The Court is therefore satisfied that no prejudice
has been caused to the petitioner or to the other stakeholders, and
the respondents' final action ensures compliance with the
principles of natural justice, transparency, and reasoned decision-
making.
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
In conclusion, the reiteration of the decision on
01.07.2025, standing alone, is not fully sustainable as a reasoned
administrative action. However, in view of the corrective measures
taken by the respondents through cancellation and re-tendering of
the work, the lapse is rendered harmless, and the exercise of
discretion by the Technical Bid Evaluation Committee is validated
in the ultimate analysis.
Issue No. 3. Whether the final decision of the
Technical Bid Evaluation Committee dated 14.07.2025,
cancelling the entire tender process on the ground of insufficient
bid capacity of the Lowest Bidder (L-1) and breach of
confidentiality of the tender, was in accordance with Clause 33
of the Notice Inviting Tender (NIT)?
The record shows that after the financial bids were
opened on 05.07.2025, Shanti Construction was declared the
Lowest Bidder (L-1) with a quoted price 5.77% below the
estimated rate, while the petitioner was the 2nd lowest bidder.
Subsequent verification of the bid capacity of Shanti Construction
revealed that its total bid capacity, when adjusted for already
allotted works under Tender ID 139610 and Tender ID 139568,
was insufficient to undertake the tendered work of Rs. 3714.50482
lakhs. In addition, since the financial bids had already been
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
opened, the confidentiality of the tender process stood
compromised, as all bidders were now aware of the L-1 rates.
In view of these facts, the Technical Bid Evaluation
Committee, in its meeting dated 12.07.2025, and by Memo No.
2611 dated 14.07.2025, recommended cancellation of the tender
and re-advertisement of the work. The Committee acted under
Clause 33 of the Notice Inviting Tender, which explicitly provides:
"The Engineer in Chief-cum-Additional
Commissioner-cum-Special Secretary / Engineer
in Chief reserves the right to accept or reject any
bid and to cancel bidding process and reject all
bids, at any time prior to the award of the
contract without assigning any reason thereof."
Clause 33 clearly vests absolute discretion in the
tendering authority to cancel the tender even prior to award, and
such discretion can be exercised to maintain fairness, transparency,
and integrity in the process. The Committee's decision to cancel
the tender was based on two substantive grounds:
(i) insufficiency of bid capacity of the L-1 bidder, and
(ii) breach of confidentiality owing to prior opening of
financial bids.
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
Both grounds fall well within the ambit of Clause 33 and
are rational, objectively verifiable, and intended to safeguard the
tender process.
The law is well-settled that cancellation of a tender in
such circumstances is permissible and falls within the domain of
administrative discretion. In Afcons Infrastructure Ltd. v. Nagpur
Metro Rail Corporation Ltd (Supra), the Hon'ble Supreme Court
held that the tendering authority is the best judge of its
requirements and evaluation, and courts will interfere only in cases
of mala fide action, perversity, or manifest arbitrariness. Similarly,
in Michigan Rubber (India) Ltd. v. State of Karnataka (Supra), it
was held that the power to cancel a tender is an essential tool to
ensure probity in public procurement, and mere dissatisfaction of
bidders does not justify interference.
It is also noteworthy that the respondents conducted
multiple technical reviews, including calling for detailed reports
from the Executive Engineer, to ascertain the correctness of bid
capacities and technical eligibility. The decision to cancel the
tender, therefore, was not an arbitrary exercise but a considered
action following repeated technical assessments and a transparent
verification process.
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
In conclusion, the final decision dated 14.07.2025
cancelling the tender process on grounds of insufficient bid
capacity of the L-1 bidder and breach of confidentiality is legally
sustainable, exercised in accordance with Clause 33 of the NIT,
and reflects a lawful and prudent exercise of administrative
discretion to maintain fairness, transparency, and integrity in the
tender process.
Issue No. 4. Whether the petitioner, being the second
lowest bidder and having expressed willingness to execute the
work at the rate quoted by the Lowest Bidder (L-1), has any
enforceable legal right to claim award of the contract in his
favour?
The petitioner contends that, as the second lowest
bidder, he should have been awarded the work at the rate quoted
by the L-1 bidder, relying on the argument of logical sequencing
and fairness. It is, however, pertinent to note that the petitioner has
not specifically prayed for a declaration that he be treated as L-1 or
for an order awarding the contract to him in the present writ
application. The relief sought primarily challenges the decision of
the Technical Bid Evaluation Committee to cancel the tender and
does not include a direct claim for assignment of the contract.
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
From a legal standpoint, no bidder, including the second
lowest bidder, acquires an enforceable right to be awarded a
contract merely because the lowest bidder is subsequently found to
be technically non-responsive. The law on public procurement is
clear that the tendering authority retains discretion to accept or
reject any bid, and the right to cancel a tender, unless restricted by
statute or contract, cannot be circumvented by invoking the
position of the next lowest bidder. The relevant provisions in the
Notice Inviting Tender (Clause 33) expressly empower the
authority to cancel the tender without assigning any reason. There
is no provision mandating that in case of disqualification of the L-
1 bidder, the second lowest bidder must automatically be offered
the contract. Judicial precedents reinforce this principle. In the
case of W.B. State Electricity Board v. Patel Engineering Co.
Ltd. And Others (2001) 2 SCC 451, it was categorically held that:
"33. We may, however, clarify that the
appellant is not obliged to award contract to
any of the bidders at their quoted price
bid......"
In the present case, the petitioner's willingness to
execute the work at the L-1 rate, expressed in his communication
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
dated 16.07.2025, cannot override the explicit discretion of the
Technical Bid Evaluation Committee under Clause 33 of the NIT.
Also in a recent judgment by the Hon'ble Supreme
Court in the case of Prakash Asphaltings And Toll Highways
(India) Ltd. vs Mandeepa Enterprises & Ors Civil Appeal No.
11418 of 2025, the Hon'ble Apex Court has explicitly held:
"40. The above proposition has been
followed by another three-Judge Bench of this
Court in the recent case of Subodh Kumar
Singh Rathore Vs. Chief Executive Officer ,
when it examined the concept of public interest
in administrative decisions relating to award
of contracts. This Court held that even
assuming for a moment that there was
technical fault in the tender, which if rectified
had the possibility of generating more revenue,
the same by no stretch could be said to be a
cogent reason for concealing an already
existing tender. This Court highlighted the
importance of maintaining the sanctity of
tenders in governmental procurement
processes.
Public tenders are the cornerstone
of governmental procurement processes, being
competitive and ensuring fairness and
transparency in the allocation of public
resources. Public tenders are designed to
provide a level playing field for all potential
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
bidders, fostering an environment where
competition thrives. The integrity of this
process ensures that public projects and
resources are delivered efficiently and
effectively, benefiting the society at large.
Therefore, sanctity of public tenders and
contract is a fundamental principle that
underpins the stability and predictability of
legal and commercial relationships. Infact this
Court put in a word of caution that
considerations of public interest should not be
narrowly confined to financial aspect only.
41. Applying the above legal
principles to the facts of the present case, we
are of the view that the Division Bench of the
High Court clearly fell in error in directing
respondent No. 2 to 4 to allow rectification of
the financial bid of respondent No. 1 by
treating the amount offered by it as the per day
figure and on that basis to compute the total
amount for the entire contractual period of
1095 days. Such an exercise is clearly
impermissible having regard to the terms and
conditions of the contract which are required
to be understood on the anvil of this Court's
judgments.
The authority granted to the
tendering authority by clause 5B (v) of the
Instruction to Bidders cannot be stretched to
construe the price bid of respondent No. 1 as
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
the per day offer, contrary to the bid
declaration of respondent No. 1 itself, and
thereafter, on that basis to work out a new bid
amount for the entire contractual period
making it the highest. In the present case,
respondent No. 1 was not at all vigilant;
rather, it displayed a very casual approach. In
such circumstances, clause 5B(v) cannot be
invoked to resurrect the bid of respondent No.
1 to make it H1. Clause 5B(v) of the
Instruction to Bidders has to read conjointly
with clause 4(g) of the notice inviting
electronic bid."
[Emphasis Supplied]
Relying on the aforesaid principles, it would be pertinent
to say that any alteration in the Financial Bid already submitted
would not be permissible in the eyes of law. Therefore, the
willingness of the petitioner to work at the rate quoted by L1,
expressed in his communication dated 16.07.2025 is impermissible
in law. Merely a benefit to the public exchequer cannot be a reason
to ignore the established law and rules subject to which bids are
invited.
The respondents have acted within their authority in
cancelling the tender after assessing the bid capacities and the
breach of confidentiality. The petitioner's argument based on
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
"logical reasoning" does not translate into a legally enforceable
claim, especially since the writ does not seek a relief for direct
award of the contract in his favour. Courts have consistently held
that relief in writ jurisdiction must be strictly confined to the
reliefs claimed, and no additional entitlement can be read into the
application absent specific prayer.
Therefore, the petitioner has no enforceable legal right
to claim award of the contract merely on the basis of being the
second lowest bidder. The discretion to re-tender, or to cancel and
re-advertise, remains entirely with the respondents and is exercised
in accordance with law and the NIT provisions. The petitioner's
arguments, while logically appealing, do not give rise to any legal
entitlement enforceable in this Court.
Issue No. 5. Whether this Court, in exercise of its writ
jurisdiction under Article 226 of the Constitution of India, has
the power to interfere in the decisions of the Technical Bid
Evaluation Committee and the tendering authority, particularly
in matters involving evaluation of bid capacity, responsiveness,
and cancellation of tender?
It is well-settled that the writ jurisdiction under Article
226 of the Constitution of India is a powerful constitutional
remedy designed to protect fundamental rights and ensure legality,
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
fairness, and non-arbitrariness in administrative action. However,
the exercise of such jurisdiction in matters relating to public
procurement, tender evaluation, and contractual awards is
circumscribed by well-established principles of administrative law
and judicial restraint.
It is trite law that award of contracts, acceptance or
rejection of tenders, and cancellation or re-tendering of public
works are essentially commercial and administrative functions of
the State and its instrumentalities. The scope of judicial review in
such matters is narrow and circumscribed.
In Michigan Rubber (India) Ltd. v. State of Karnataka
(2012) 8 SCC 216, the Hon'ble Supreme Court held that the
Government must have freedom of contract and is entitled to
prescribe conditions ensuring competition and safeguarding public
interest. The Apex court observed that:
17) In Jagdish Mandal vs. State of Orissa and Others, (2007) 14
SCC 517, the following conclusion is relevant:
"22. Judicial review of administrative
action is intended to prevent arbitrariness,
irrationality, unreasonableness, bias and malafides.
Its purpose is to check whether choice or decision is
made "lawfully" and not to check whether choice or
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
decision is "sound". When the power of judicial
review is invoked in matters relating to tenders or
award of contracts, certain special features should
be borne in mind. A contract is a commercial
transaction. Evaluating tenders and awarding
contracts are essentially commercial functions.
Principles of equity and natural justice stay at a
distance. If the decision relating to award of contract
is bona fide and is in public interest, courts will not,
in exercise of power of judicial review, interfere even
if a procedural aberration or error in assessment or
prejudice to a tenderer, is made out. The power of
judicial review will not be permitted to be invoked to
protect private interest at the cost of public interest,
or to decide contractual disputes. The tenderer or
contractor with a grievance can always seek
damages in a civil court. Attempts by unsuccessful
tenderers with imaginary grievances, wounded pride
and business rivalry, to make mountains out of
molehills of some technical/procedural violation or
some prejudice to self, and persuade courts to
interfere by exercising power of judicial review,
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
should be resisted. Such interferences, either interim
or final, may hold up public works for years, or delay
relief and succour to thousands and millions and may
increase the project cost manifold. Therefore, a court
before interfering in tender or contractual matters in
exercise of power of judicial review, should pose to
itself the following questions:
(i) Whether the process adopted or
decision made by the authority is malafide or
intended to favour someone;
OR Whether the process adopted or
decision made is so arbitrary and irrational that the
court can say: "the decision is such that no
responsible authority acting reasonably and in
accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there
should be no interference under Article 226. Cases
involving blacklisting or imposition of penal
consequences on a tenderer/contractor or
distribution of State largesse (allotment of
sites/shops, grant of licences, dealerships and
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
franchises) stand on a different footing as they may
require a higher degree of fairness in action."
In the case of Tata Cellular vs. Union of India (1994) 6
SCC 651 , the Supreme Court has held that:
"94. (1) The modern trend points to
judicial restraint in administrative action.
(2) The court does not sit as a court of
appeal but merely reviews the manner in which the
decision was made.
(3) The court does not have the expertise to
correct the administrative decision. If a review of the
administrative decision is permitted it will be
substituting its own decision, without the necessary
expertise which itself may be fallible.
(4) The terms of the invitation to tender
cannot be open to judicial scrutiny because the
invitation to tender is in the realm of contract.
(5) The Government must have freedom of
contract and that permits a fair play in the joints as a
necessary concomitant for an administrative body
functioning in an administrative sphere or quasi-
administrative sphere. Hence, the Court has laid
down that the decision must not only be tested by the
application of Wednesbury principle of
reasonableness (including its other facts pointed out
above) but must be free from arbitrariness not
affected by bias or actuated by mala fides."
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
The respondents in the present case are statutory
authorities entrusted with the evaluation of technical bids,
financial bids, and overall tender administration under the
applicable rules and the Notice Inviting Tender (NIT). The law
recognizes that procurement processes are complex and often
involve technical assessments that are beyond the specialized
knowledge of the Court. Evaluation of bid capacity, calculation of
allotments, verification of eligibility, and determination of whether
confidentiality is compromised are inherently administrative and
technical functions. Courts are expected to ensure that the
authority has acted in good faith, followed due process, and
applied its mind, rather than substituting their own assessment of
technical matters.
In the present case, the respondents undertook multiple
rounds of technical scrutiny, reviewed reports of the Executive
Engineer, considered objections filed by the petitioner and other
bidders, and evaluated financial bids before ultimately cancelling
the tender pursuant to Clause 33 of the NIT. The actions of the
respondents indicate repeated application of mind and adherence
to principles of transparency, fairness, and procedural propriety.
There is no evidence of mala fide conduct, arbitrariness, or non-
application of mind that would justify judicial intervention.
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
Applying the above principles, the Court recognizes that
while it has the constitutional power to review administrative
decisions, such power is exercised sparingly in the context of
tender evaluation, and only when there is demonstrable
arbitrariness, mala fides, or violation of statutory norms. In the
instant matter, the respondents acted in a reasoned, transparent,
and fair manner, and the procedural steps taken demonstrate
application of mind and administrative prudence. Accordingly,
judicial interference under Article 226 is neither warranted nor
justified merely because the petitioner disagrees with the
evaluation or believes he should have been awarded the contract.
Therefore, this Court is satisfied that there is no
justiciable ground to interfere in the decision-making process of
the respondents in this matter.
15. In view of the foregoing discussion on the major
issues in question, it is apparent that the respondents have acted
within the bounds of their statutory authority in re-evaluating the
financial bids, and ultimately exercised their discretion to cancel
and re-advertise the tender in accordance with Clause 33 of the
Notice Inviting Tender. While certain procedural aspects, such as
repeated re-evaluation of the technical bid, may appear irregular,
these were corrective measures aimed at ensuring fairness and
Patna High Court CWJC No.11886 of 2025 dt.09-10-2025
transparency in the tender process. The petitioner, being the
second lowest bidder, does not possess any enforceable legal right
to claim award of the contract merely on the basis of his
willingness to match the L-1 rate. Moreover, in the absence of
mala fide action or manifest arbitrariness, this Court, in exercise of
its writ jurisdiction under Article 226 of the Constitution of India,
finds no justifiable ground to interfere with the considered
decisions of the Technical Bid Evaluation Committee and the
tendering authority.
16. Accordingly, the writ petition is devoid of merit and
is accordingly dismissed, while leaving the respondents free to
proceed with the re-tender process in accordance with law. All
pending I.As if any will be deemed to have been disposed of.
17. There shall be no order as to costs.
(P. B. Bajanthri, CJ)
(Alok Kumar Sinha, J)
Prakash Narayan
AFR/NAFR AFR
CAV DATE 24.09.2025
Uploading Date 09.10.2025
Transmission Date NA
