[Cites 12, Cited by 0]

Rajasthan High Court - Jodhpur

M/S. B.P. Choudhary Construction ... vs State Of Rajasthan on 4 December, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:51708]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                S.B. Civil Writ Petition No. 18118/2025

M/s.     B.P.   Choudhary       Construction           Company,      Through     Its
Proprietor B.p. Choudhary S/o Shri Daya Ram Ji, Aged About 60
Years, R/o Plot No. 3, Near Bishnoi Dharamshala, Shiv Mandir
Road, Ratanada, Jodhpur.
                                                                      ----Petitioner
                                      Versus
1.       State Of Rajasthan, Through The Principal Secretary,
         Public Works Department, Jaipur.
2.       The Chief Engineer (Crif), Public Works Department,
         Rajasthan, Jaipur.
3.       Additional Chief Engineer, Public Works Department,
         Zone-1, Jodhpur.
                                                                   ----Respondents


For Petitioner(s)           :     Mr. Vikas Balia, Sr. Advocate, assisted
                                  by Mr. Vivek Mathur and Mr.
                                  Khadyotan Gurjar
For Respondent(s)           :     Mr. Rajesh Pawar, Sr. Advocate-cum-
                                  AAG, assisted by Ms. Meenal Singhvi,
                                  Mr. Monal Chugh and
                                  Mr. Rakesh Sharma



                HON'BLE DR. JUSTICE NUPUR BHATI

Order

RESERVED ON: 13/11/2025 PRONOUNCED ON: 04/12/2025

1. The instant writ petition has been filed by the petitioner

under Article 226 of the Constitution of India, 1950 with the

following prayer:

"I. Issue an appropriate writ, order and direction in the nature of certiorari quashing/ setting aside any and all orders passed by the Respondents (including vide letter dated 09.09.2025) vide which the Petitioner's bid has been rejected and/or the subject Tender no. 10/2025-26 dated 19.06.2025 has been annulled;

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II. Issue an appropriate writ, order and direction in the nature of certiorari quashing/ setting aside any and all consequential actions (including but not limited to the letter dated 13.09.2025 issued by Respondent No. 3 i.e. Annexure-2) taken by the Respondents in furtherance of the rejection of the Petitioner's bid and/or annulment of the subject Tender no. 19.06.2025 (Annexure-3) 10/2025-26 dated (Annexure-

3).

III. Issue an appropriate writ, order and direction in the nature of certiorari quashing/ setting aside the fresh Notice Inviting Bid bearing ref. 23/2025-26 dated 10.09.2025 issued by the Respondents re-inviting the tender (Annexure - 1); IV. Issue an appropriate writ, order and direction in the nature of mandamus directing the Respondents to consider the bid submitted by the Petitioner for the subject Tender no. 10/2025-26 dated 19.06.2025 afresh;"

2. Briefly stated facts of the case are that the Petitioner is a

Class "AA" contractor registered with the Public Works

Department, Government of Rajasthan. The Petitioner participated

in the tender dated 19.06.2025 (Annex.3) for widening and

strengthening of the Merta-Khedapa via Gotan-Asop-

Paldiranavatan Road from Km 37/0 to 63/0 and 67/0 to 76/0 (SH-

86A) (Job No. CRIF/1059/RJ/2023-24) ("Tender") along with two

other bidders. At the technical stage, the Petitioner alone was

found responsive, and consequently emerged as the lowest bidder.

The remaining two bidders were rejected at the technical

evaluation stage. However, on 11.09.2025 (Annex.2), Respondent

No. 3 issued a letter informing the Petitioner that its Earnest

Money Deposit (EMD) was being returned as the Tender had been

cancelled pursuant to a decision of the Empowered Board and a

letter dated 09.09.2025 issued by Respondent No. 2. No reasons

for cancellation were communicated, nor copies of the relevant

orders were supplied. Even before issuing this letter, the

Respondents had already floated a fresh tender bearing reference

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No. 23/2025-26 on 10.09.2025 (Annex.1) for the identical scope

of work. The last date for submission of bids under the fresh

tender was 25.09.2025, which was opened on 26.09.2025.

3. The respondents have repeatedly floated successive tenders

for the very same work, without allowing any single tender

process to attain finality. Beginning with Tender No. 1 issued on

20.08.2023, which was cancelled on 06.10.2023 despite the

petitioner being the sole responsive bidder and having been called

for negotiations, the respondents thereafter issued Tender Nos. 2,

3 and 4, each of which was either cancelled or rendered

infructuous -whether due to the imposition of the Model Code of

Conduct or on account of procedural irregularities attributable

solely to the respondents. Subsequently, even after the petitioner

participated in Tender No. 5 (NIT No. 10/2025-26 dated

19.06.2025) and was again found to be the only responsive bidder

at both the technical and financial stages, with the Bid Evaluation

Committee formally recommending acceptance of his bid under

Rule 68 of the Rajasthan Transparency in Public Procurement

Rules,2013 (RTPP Rules, 2013). Thereafter, the respondents

abruptly cancelled Tender No. 5 (the subject matter of the present

writ petition) without assigning any reason whatsoever, in

violation of Section 26(3) of the Rajasthan Transparency in Public

Procurement Act, 2012 (RTPP Act, 2012). It reflects a continuing

pattern of discrimination, arbitrariness and violation of statutory

duties. The road project has consequently remained stalled for

over two years, causing public inconvenience, and which has

compelled the Petitioner to file present writ petition.

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4. Mr. Vikas Baliya, learned Senior Advocate assisted by Mr.

Vivek Mathur and Mr. Khadyotan Gurjar, representing the

petitioner, makes following submissions:-

(a) The respondents' decision to cancel the petitioner's bid is in

clear violation of Section 26(3) of the RTPP Act, 2012, which

mandates that any cancellation of procurement, along with the

reasons therefor, must be immediately communicated to all

participating bidders. In the present case, the respondents

cancelled the petitioner's bid on 09.09.2025, floated a fresh

tender the very next day on 10.09.2025, and returned the

petitioner's security deposit on 11.09.2025. The petitioner

thereafter filed the present writ petition challenging these actions.

Significantly, the reasons for cancellation were communicated to

the petitioner only on 19.09.2025--and that too, after the filing of

this writ petition. By failing to adhere to this statutory obligation,

the respondents have acted contrary to law and in breach of a

mandatory duty imposed upon them.

(b) The cancellation of the tender process is contrary to the

findings of the respondents' own Committee. The Bid Evaluation

Committee (Respondent No. 3) had issued a certificate (Annex.

10) to the petitioner-firm under Rule 68 of the RTPP Rules, 2013,

affirming that all competitive requirements, such as adequate

publicity, industry-friendly specifications, sufficient time for bid

preparation, and standard bidding conditions, were duly met.

Respondent No. 3 had also recommended acceptance of the

petitioner's bid as the sole responsive bid, fully compliant with

Rule 68(1)(a) to (e). The Committee had recorded its concurrence

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without noting any disagreement. In spite of these clear

certifications and recommendations, the respondents proceeded to

take a decision for annulment that runs contrary to the

assessment of their own expert Evaluation Committee.

factual report (Annex.11) to the State Government explaining the

reasons for acceptance of petitioner's bid. The report highlighted

that the petitioner alone qualified at the technical stage and

financial bid was 8.13% below the rates prescribed in BSR 2025.

Once such a factual report (Annex.11) was placed before the

competent authority, there was no valid basis to annul the tender.

(d) The respondents' reliance on the fact that the petitioner had

quoted 21.31% below the estimate in another tender is

misconceived, as that bid pertained to an entirely different district,

with different sections and applicable BSRs. Hence, the two rates

are not comparable.

(e) The rate quoted by the petitioner for the tender

(₹38,14,61,796.29) was reasonable by every measurable

standard. It was 3.17% lower than the estimated cost based on

BSR 2022, and 8.13% lower when compared with the BSR 2025

estimates. The respondents themselves had anticipated that bids

might be 5.94% above the schedule rate; therefore, the

petitioner's bid was effectively 14.07% lower than the

respondents' own expectation.

(f) That even assuming the respondents believed the rate to be

high, the proper course would have been to invite the petitioner

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for negotiations, as permissible under rule 69 of RTPP rules, 2013

and which had been done by the respondents in previous tenders

including instances where single bidders were called for

negotiations.

(g) Though, the procuring entity has the right to accept or reject

any or all bids while invoking Rule 72 of the Rules of 2013,

however, the said right cannot be exercised in an arbitrary

manner, as the respondents, though, have recorded the reasons,

however, the reasons have been communicated at a very belated

stage i.e. on 19.09.2025 vide email.

(h) There was no "lack of competition," as three bidders had

participated, and the petitioner became the sole responsive bidder

only because the others were disqualified on account of

documentation defects. Rule 68(1) and the circular dated

28.08.2024 allow acceptance of a single responsive bid where the

tender has been widely advertised, participation is open, and the

quoted rate is reasonable.

(i) There was no instance of 'low participation' in the tendering

process, as the tender remained open for a substantial period of

49 days, providing ample opportunity for bidders to participate.

Moreover, the RTPP Act does not mandate any minimum

participation requirement. Accordingly, cancelling the tender

repeatedly on the alleged ground of low participation is unjustified

and contrary to the public interest.

(j) Regarding the issue of 'rate trend,' the petitioner's bid is

3.17% below the schedule rate, whereas the State's own estimate

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is 5.94% above it. Moreover, comparisons with rates from other

tenders are unreliable due to differences in location and the varied

nature of the bids submitted.

5. In support of his contentions, learned Senior Counsel

representing the petitioner, placed reliance on the judgments

rendered by the Hon'ble Supreme Court in the case of Union of

India & Others v. Dinesh Engineering (2001) 8 SCC 491 and

Subodh Kumar Singh Rathore v. Chief Executive Officer &

Ors., 2024 INSC 486, as well as the judgment of the Delhi High

Court in Insituform Pipeline Rehabilitation Pvt. Ltd. v. New

Delhi Municipal Council, 2022 SCC OnLine Del 73.

6. Conversely, Mr. Rajesh Pawar, Sr. Advocate cum-AAG,

representing the respondents, makes following submissions:-

(a) A plain reading of Section 26 of the Act of 2012 makes it

evident that the decision of the procuring entity to cancel the

procurement, along with the reasons for such decision, is required

to be communicated to all bidders. In compliance with this

requirement, the respondents, vide letter dated 11.09.2025

(Annex.2), refunded the security deposit (EMD) of the petitioner

and informed it of the cancellation of the procurement process,

and the reasons for such cancellation were subsequently

communicated via email on 19.09.2025 (Annex.1 filed along with

additional affidavit by the petitioner).

(b) Neither the Act of 2012 nor the Rules of 2013 impose any

obligation upon the procuring entity to communicate the reasons

for cancellation prior to the issuance of a fresh tender.

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reject any bid, and in view of Condition No. 15 of the tender as

well as Rule 72 of the Rules of 2013, there exists no requirement

to communicate reasons for cancellation of the petitioner's bid as

a precondition to issuing a fresh tender. Even assuming the

reasons for cancellation had been communicated before issuance

of the new e-tender, no right accrued to the petitioner that could

restrain the authorities from proceeding with a fresh procurement

process.

(d) He places reliance on Rule 78 of the Rules of 2013, which

provides that once a procurement process has been cancelled, the

same cannot be reopened; however, the said prohibition does not

extend to initiating a new procurement process for the same

subject matter. Therefore, the action of the respondents in issuing

a fresh tender is strictly in accordance with the statutory

framework and does not confer any enforceable right upon the

petitioner to challenge the same.

(e) Learned AAG places reliance on the judgments of the Hon'ble

Supreme Court in Silppi Constructions Contractors v. Union

of India, SLP (Civil) Nos. 13802-13805 of 2019, and of this

Court in Mahadev Stone Crusher v. State of Rajasthan, S.B.

Civil Writ Petition No. 17666/2024, and M/s Shree Sidhi

Industries v. Rajasthan State Ganganagar Sugar Mills Ltd.,

S.B. Civil Writ Petition No. 21807/2018. On the strength of

his submissions and these judgments, learned AAG submits that

the writ petition being devoid of merit, deserves to be dismissed.

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7. I have heard and considered the submissions advanced at

Bar by the learned counsel representing the parties and have gone

through the material available on record as well as the judgments

cited.

8. This Court discerns that the petitioner's case hinges on three

cardinal contentions. Primarily, the respondents purportedly

annulled the tender dated 19.06.2025 (Annex.3) sans furnishing

cogent reasons for such recission, and concurrently promulgated a

fresh tender for identical works, thereby infringing Section 26(3)

of the Rajasthan Transparency in Public Procurement Act, 2012

("RTPP Act"), which mandates immediate communication of the

cancellation decision and underlying rationale to all participating

bidders. Secondly, the respondents ostensibly disregarded the

substantive factual report tendered by the Bid Evaluation

Committee (Respondent No.3) (Annex.11), which unequivocally

advocated acceptance of the petitioner's bid. Thirdly, the

petitioner posits that, notwithstanding any perceived escalation in

bid rates, the respondents were duty-bound to solicit negotiations

--a practice consistently adhered to in analogous precedents--and

that the recurrent annulments, bereft of bona fide justification,

constitute arbitrariness repugnant to Article 14 of the Constitution.

9. Turning to the petitioner's inaugural contention in regard to

the ostensibly uncommunicated recission of the tender

proceedings, this Court observes that intimation was duly

extended to the petitioner via communication dated 11.09.2025

(Annex.2), concomitant with refund of its earnest money deposit

(EMD), occurring proximate to the issuance of a successor tender

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on 10.09.2025 (Annex.1). Indisputably, the petitioner was

informed about the annulment of the tender through electronic

mail on 19.09.2025 (Annex.1 appended to the supplemental

affidavit), albeit subsequent to institution of the instant writ

petition. For adjudication hereof, this Court invokes Rule 72 of the

RTPP Rules, 2013, vesting the procuring entity with discretion to

accept or reject bids, alongside Condition No.15 enshrined in the

Notice Inviting Tender (NIT) dated 19.06.2025 (Annex.3), which

circumscribes such authority whilst enjoining procedural rectitude.

Rule 72 of the Rules of 2013 as well as the Condition No.15 of the

NIT, reads as under:

Rule 72 of the Rules of 2013:

"72. Procuring entity's right to accept or reject any or all bids- The Procuring entity reserves the right to accept or reject any bid, and to annul the bidding process and reject all bids at any time prior to award of contract, without thereby incurring any liability to the bidders. Reasons for doing so shall be recorded in writing."

Condition No.15:

"15. किसी भी निविदा को स्वीकार करने एवं बिना कारण बताये निरस्त करने के समस्त अधिकार सक्षम अधिकारी के पास सुरक्षित है।"

A plain reading of Rule 72 of the Rajasthan Transparency in Public

Procurement Rules, 2013 ("RTPP Rules") evinces that the

procuring entity retains unfettered discretion to reject any bid or

annul the bidding process prior to contract award, subject to the

imperative of documenting the rationale therefore in writing.

10. This Court holds that the respondents, acting within the

statutory ambit delineated by Rule 72 and Condition No. 15 of the

Notice Inviting Tender ("NIT"), lawfully exercised their prerogative

to rescind the bidding process antecedent to any contract conferral

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upon the petitioner; moreover, the respondents duly recorded the

grounds for such annulment, as manifested in the communication

dated 19.09.2025.

11. Substantive merit inheres in the respondents' submission that

neither the RTPP Act, 2012 nor the RTPP Rules, 2013 impose any

obligation to disseminate the reasons of cancellation antecedent to

promulgation of a successor tender for cognate works. The

petitioner adduced no cogent evidence of prejudice occasioned by

the post-tender notification of annulment rationale vis-à-vis the

fresh tender dated 10.09.2025 (Annex.1). Pursuant to Rule 78 of

the RTPP Rules, 2013, annulment of a procurement process

precludes it from reopening, yet this proscription does not

interdict initiation of a de novo tender for the selfsame subject

matter. The relevant rule reads as under:-

"78. Cancellation of procurement process.- If any procurement process has been cancelled, it shall not be reopened but it shall not prevent the procuring entity from initiating a new procurement process for the same subject matter of procurement, if required."

12. Section 26 of RTPP Act,2012 empowers the procurement

entity to cancel the procurement process. The same is reproduced

here:-

"26. Cancellation of the procurement process.-

(1) A procuring entity may, for reasons to be recorded in writing, cancel the process of procurement initiated by it -

(a) at any time prior to the acceptance of the successful bid;

or (b) after the successful bid is accepted in accordance with sub-sections (4) and (5).

(2) The procuring entity shall not open any bids or proposals after taking a decision to cancel the procurement and shall return such unopened bids or proposals.

(3) The decision of the procuring entity to cancel the procurement and reasons for such decision shall be

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immediately communicated to all bidders that participated in the procurement process.

(4) If the bidder whose bid has been accepted as successful fails to sign any written procurement contract as required, or fails to provide any required security for the performance of the contract, the procuring entity may cancel the procurement process.

(5) If a bidder is convicted of any offence under this Act, the procuring entity may-

(a) cancel the relevant procurement process if the bid of the convicted bidder has been declared as successful but no procurement contract has been entered into;

(b) rescind the relevant contract or forfeit the payment of all or a part of the contract value if the procurement contract has been entered into between the procuring entity and the convicted bidder."

This court finds that as per requirement of Section 26 of the RTPP

Act, 2012, the recording of reasons in writing is a sine-qua-non

before cancellation of procurement and the same has been

complied with in the present case. Vide letter dated 11.09.2025

(Annex.2), the respondents refunded the petitioner's earnest

money deposit (EMD), constituting prima facie intimation of the

tender (an3 ) annulment; the substantive rationale therefore was

subsequently disseminated via electronic mail on 19.09.2025.

Neither the RTPP Act nor the concomitant Rules, 2013 stipulate

any rigid chronology for conveyance of such reasons, thereby

obviating any infraction of Rule 72 by the respondents. Pertinently,

EMD refund transpired on 11.09.2025, annulment notification on

19.09.2025, and the fresh Notice Inviting Tender ("NIT") issued on

10.09.2025 (Annex.1), rendering the communication neither

dilatory nor prejudicial. The application window for the successor

NIT spanned 12.09.2025 to 25.09.2025, affording the petitioner,

apprised of annulment grounds on 19.09.2025, ample opportunity

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to participate in the subsequent tender. Thus, respondents have

substantially adhered to the exigency of decision dissemination.

13. Now, adverting to the second contention, namely that Rule 68

of the Rules of 2013 could not have been ignored by the

respondents once the Bid Evaluation Committee had approved the

petitioner's bid as eligible, this Court finds it appropriate to

reproduce the relevant Rule 68 for proper appreciation. Rule 68

reads as under:-

"68. Lack of competition.-

(1) A situation may arise where, if after evaluation of bids the bid evaluation committee may end-up with one responsive bid only, in such situation, the bid evaluation committee should check as to whether while floating the Notice Inviting Bids all necessary requirements to encourage competition like standard bid conditions, industry friendly specifications, wide publicity, sufficient time for formulation of bids, etc. were fulfilled. If not, the Notice Inviting Bids should be refloated after rectifying deficiencies. The bid process shall be considered valid even if there is one responsive bid, provided that-

(a) the bid is technically qualified;

(b) the price quoted by the bidder is assessed to be reasonable;

(c) the bid is unconditional and complete in all respects;

(d) there are no obvious indicators of cartelisation amongst bidders; and

(e) the bidder is qualified as per the provisions of section 7 (2) The bid evaluation committee shall prepare a justification note for approval of the procuring entity, clearly including views of the accounts/finance member of the committee. (3) The procuring entity competent to decide a procurement case, as per delegation of financial powers, shall decide as to whether to sanction the single bid or re-invite bids after recording its reasons for doing so.

(4) If a decision to re invite the bids is taken, market assessment shall be carried out for estimation of market depth, eligibility criteria and cost estimate."

14. A bare perusal of Rule 68 makes it evident that although the

Bid Evaluation Committee is required to prepare a justification

note and record its recommendations, the competent authority to

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either sanction a single bid or to re-invite bids vests exclusively

with the procuring entity. Such competent authority, must exercise

its right upon due application of mind and by recording reasons for

the decision taken. In the present case, though the Bid Evaluation

Committee (Respondent No. 3) submitted its factual and

justification report, the competent procuring entity, in exercise of

its statutory powers under Section 26 of the Act of 2012 and the

rule 72 of the Rules of 2013, resolved to annul the procurement

process. This decision, as reflected in the minutes of the meeting

dated 09.09.2025 (Annex. AA/1 filed along with the additional

affidavit by the respondent), was founded on the grounds of lack

of competition, low participation, and the prevailing rate trends

which indicated that the rate quoted by the petitioner was

significantly higher when compared to bids received in various

tenders for similar nature of work (Annex.R/2). The action of the

respondents, therefore, stands in strict conformity with the

statutory provisions and falls squarely within the domain of the

powers conferred upon the procuring entity.

15. With regard to the petitioner's third contention that the

respondents ought to have invited it for negotiations, as allegedly

done in certain previous tenders, this Court finds the said

argument to be untenable. The scheme of the RTPP Act, 2012 and

the Rules of 2013 does not confer any vested right upon a bidder

to be called for negotiations, nor does it impose any mandatory

obligation upon the procuring entity to conduct negotiations in

every case where a single responsive bid is received. The decision

whether or not to resort to negotiations is a matter of discretion,

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to be exercised by the procuring entity based on the nature of the

procurement, prevailing market conditions, rate trends, and

overall public interest. Mere instances of negotiations having been

undertaken in past tenders do not create a legal precedent or

legitimate expectation compelling the respondents to adopt the

same course in the present case, particularly when the competent

authority had, upon evaluation of the prevailing circumstances,

concluded that cancellation and re-invitation of bids was the more

appropriate and prudent course of action. Rule 69 of the RTPP

Rules of 2013 is reproduced hereunder:

"69. Negotiations.- (1) Except in case of procurement by method of single source procurement or procurement by competitive negotiations, to the extent possible, no negotiations shall be conducted after the pre-bid stage. All clarifications needed to be sought shall be sought in the pre- bid stage itself.

(2) Negotiations may, however, be undertaken only with the lowest or most advantageous bidder under the following circumstances-

(a) when ring prices have been quoted by the bidders for the subject matter of procurement; or

(b) when the rates quoted vary considerably and considered much higher than the prevailing market rates.

(3) The bid evaluation committee shall have full powers to undertake negotiations. Detailed reasons and results of negotiations shall be recorded in the proceedings.

(4) The lowest or most advantageous bidder shall be informed in writing either through messenger or by registered letter and email (if available). A minimum time of seven days shall be given for calling negotiations. In case of urgency the bid time evaluation committee, after recording reasons, may reduce the time, provided the lowest or most advantageous bidder has received the intimation and consented to regarding holding of negotiations.

(5) Negotiations shall not make the original offer made by the bidder inoperative. The bid evaluation committee shall have option to consider the original offer in case the bidder decides to increase rates originally quoted or imposes any new terms or conditions.

(6) In case of non-satisfactory achievement of rates from lowest or most advantageous bidder, the bid evaluation

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committee may choose to make a written counter offer to the lowest or most advantageous bidder and if this is not accepted by him, the committee may decide to reject and re-

invite bids or to make the same counter-offer first to the second lowest or most advantageous bidder, then to the third lowest or most advantageous bidder and so on in the order of their initial standing and work / supply order be awarded to the bidder who accepts the counter-offer. This procedure should be used in exceptional cases only.

(7) In case the rates even after the negotiations are considered very high, fresh bids shall be invited."

16. This Court, in Mahadev Stone Crusher v. State of

Rajasthan, S.B. Civil Writ Petition No. 17666/2024, has

categorically held that the mere fact of being declared the lowest

bidder does not, by itself, confer any vested right upon a bidder to

claim award of the contract. The relevant paragraph is reproduced

reads as under:-

"15.3. Thus, the respondents vide order dated 13.10.2024 (Annex.R/2) rejected the bids received for construction of road in six out of eight sites for which NIT dated 30.08.2024 (Annex.2) was issued namely Package No. RJ-14-01, RJ-14- 02, RJ-14-03, RJ-14-04, RJ-14-05 and RJ-14-06 in PWD Division, Simalwara, and the reason recorded therein for the rejection of the bids in respect to the above-mentioned six sites was that the rates quoted by the bidders in respect to the above mentioned packages were much higher than the ones quoted in other two packages arising out of the same NIT (Annex.2). Thus, according to Rule 72202418 of the RTPP Rules the respondents were well within the statutory realm to reject the bid of the petitioner as the contract was not awarded to the petitioner and the requirement for recording of reason for rejection as stipulated under Rule 72 of the RTPP Rules was complied with. Morover, this court in Kuldeep Lodhawat v. Rajasthan State Industrial Development and Investment Corporation Ltd. [S.B. Civil Writ Petition no.1423/2021], has observed that the highest bidder does not have a vested right and no right crystallizes in his favour merely upon being declared as the highest bidder and the decision of the authority to accept or reject a bid is a mere performance of executive function and the correctness of its conclusion is not open to judicial review unless the decision making process is unfair or action of the State is violative of Article 14 or such decision falls foul of the mandatory provisions of law. The relevant paragraphs of the aforesaid judgment is as under:

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"18. This Court observes that it is always for the authority to decide whether the price offered in an auction is adequate or not, and acceptance or rejection of a bid, is mere performance of an executive function. The correctness of its conclusion is not open to judicial review unless the decision making process is unfair or the action of the State or its instrumentality is violative of Article 14 or has failed to adhere to the mandatory provisions of law which the petitioner has not been able to demonstrate before this court from the material placed on record in the instant case. 19. This Court further observes that the bidder if has been declared as a highest bidder does not have a vested right and no right crystallizes in his favour merely upon being declared as the highest bidder. The petitioner company was not alloted the land in question and much prior to such allotment the bid was cancelled by the respondent. There can be no iota of doubt that the respondent reserve right tocancel the bid if there is any cogent reason for the same. The petitioner has failed to point out the particular right which was created in his favour prior to the cancellation of bid."

Similarly, in the present case, it was upon the respondents to decide whether to accept or reject the bid of the petitioner and merely being declared as the lowest bidder did not vest any right in the petitioner so as to award the work order to it. Therefore, the contention of the petitioner that being the lowest bidder it was entitled to be awarded the work order is devoid of any merit."

17. In a catena of judgments, Hon'ble Apex Court has laid down

the principles with regard to judicial review in contractual matters.

With regard to the limited scope of judicial review in contractual

matters, the Hon'ble Supreme Court in Tata Cellular v. Union of

India : (1994) 6 SCC 651, laid down the governing principles.

The Court emphasized that interference is justified only where the

action is arbitrary, unreasonable, mala fide, or in violation of

statutory or constitutional mandates. The relevant paragraph from

the said judgment is reproduced hereunder:-

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"xxxxxxx

85. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.

xxxxxx"

In the present case, this court does not find the action of

respondents, by which they have annulled the bid of the petitioner

to be arbitrary, unjust and unreasonable.

18. In light of the settled legal position, this Court is of the

considered view that the authority issuing the tender is the best

judge of its own requirements, and the discretion to accept or

reject a bid vests exclusively with the procuring agency. Judicial

review under Article 226 does not permit this Court to sit as an

appellate authority over such contractual decisions, nor to

substitute its own opinion for that of the competent expert body,

so long as the decision-making process is fair, reasonable, and

free from arbitrariness. In the present case, this court does not

find any violation of statutory mandate, procedural impropriety,

mala fides, or arbitrariness. The respondents have taken the

decision to cancel the impugned tender in public interest, citing

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low participation, lack of adequate competition, and prevailing rate

trends which were significantly lower than the rate quoted by the

petitioner (Annex.R/2 copies of the lowest rates in similar work of

tenders).Out of the three participating bidders, two failed to

qualify at the technical stage, resulting in the petitioner being the

sole responsive bidder. In such circumstances, this Court finds no

ground to warrant interference in the exercise of its extraordinary

jurisdiction under Article 226 of the Constitution.

19. The Hon'ble Supreme Court, in the case of State of

Jharkhand & Ors. v. M/S CWE-SOMA Consortium: (2016)

14 SCC 172, held that the State's decision to cancel a tender and

invite fresh bids is neither arbitrary nor unreasonable, particularly

where only a single responsive bid is available. The Court affirmed

that, in such circumstances, the State is justified in annulment of

the tender process in order to promote healthy competition and

secure the best value in the public interest. Relevant para of the

aforesaid judgment is reproduced here:-

"13. The appellant-state was well within its rights to reject the bid without assigning any reason thereof. This is apparent from clause 24 of NIT and clause 32.1 of SBD which reads as under:-

"Clause 24 of NIT: "Authority reserves the right to reject any or all of the tender(s) received without assigning any reason thereof." Clause 32.1 of SBD: "...the Employer reserves the right to accept or reject any Bid to cancel the bidding process and reject all bids, at any time prior to award of Contract, without thereby incurring any liability to the affected Bidder or Bidders or any obligation to infarm the affected Bidder or Bidders of the grounds for the Employer's action."

In terms of the above clause 24 of NIT and clause 32.1 of SBD, though Government has the right to cancel the tender without assigning any reason, appellant-state did assign a cogent and acceptable reason of lack of adequate competition to cancel the tender and invite a fresh tender. The High

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Court, in our view, did not keep in view the above clauses and right of the government to cancel the tender.

14. The State derives its power to enter into a contract under Article 298 of the Constitution of India and has the right to decide whether to enter into a contract with a person or not subject only to the requirement of reasonableness under Article 14 of the Constitution of India. In the case in hand, in view of lack of real competition, the state found it advisable not to proceed with the tender with only one responsive bid available before it. When there was only one tenderer, in order to make the tender more competitive, the tender committee decided to cancel the tender and invited a fresh tender and the decision of the appellant did not suffer from any arbitrariness or unreasonableness."

20. Thus, it is clear from the aforesaid that the decision of

respondents regarding annulling the tender process, cannot be

said to be arbitrary or dehor the provisions of the RTPP Act of

2012 and subsequently, the rules made thereunder in 2013.

21. Accordingly, the instant writ petition lacks merit and is

dismissed. Stay application as well as all other pending

application(s), if any, also stand dismissed.

(DR. NUPUR BHATI),J

/Devesh/-

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