Page No.# 1/11 GAHC010100432025 2025:GAU-AS:6191 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2563/2025 SHREE GAUTAM CONSTRUCTION COMNPANY LIMITED A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT 4TH FLOOR, AMAZE TOWER, A.T. ROAD, OPPOSITE PAN BAZAR OVER BRIDGE, BEAT NO. 14, PALTAN BAZAR, GUWAHATI- 781001, ASSAM AND IS REP. BY ONE OF ITS DIRECTOR SHRI ROHIT KUMAR SINGHI, SON OF SHRI UMED KUMAR SINGHI, R/O. HOUSE NO. 24, BYE LANE NO. 6, TARUN NAGAR, DISPUR- 781005, GUWAHATI IN THE DIST. OF KAMRUP(M), ASSAM. VERSUS THE UNION OF INDIA AND 7 ORS REP. BY THE SECRETARY, MINISTRY OF JAL SHAKTI, DEPT. OF WATER RESOURCES, RD AND GR, BRAHMAPUTRA BOARD, MAJULI DIVISION, KAMALABARI, MAJULI. 2:THE BRAHMAPUTRA BOARD REP. BY THE GENERAL MANAGER BRAHMAPUTRA BOARD BAISISTHA GUWAHATI- 29. 3:THE CHIEF ENGINEER - I BRAHMAPUTRA BOARD BAISISTHA GUWAHATI- 29. 4:THE DEPUTY FINANCIAL ADVISER BRAHMAPUTRA BOARD BAISISTHA GUWAHATI- 29. 5:THE SUPERINTENDING ENGINEER Page No.# 2/11 UPPER BRAHMAPUTRA CIRCLE BRAHMAPUTRA BOARD JORHAT. 6:THE EXECUTIVE ENGINEER MAJULI DIVISION BRAHMAPUTRA BOARD MAJULI. 7:TARUN DUTTA COLLEGE ROAD KHELMATI P.O. AND P.S. NORTH LAKHIMPUR ASSAM. 8:BRAHMAPUTRA INFRASTRUCTURE LIMITED 4TH FLOOR ROYAL PLAZA OPPOSITE APOLLO HOSPITAL CHRISTIAN BASTI GUWAHATI ASSAM Advocate for the Petitioner : MR G N SAHEWALLA, MR M SAHEWALLA,MS T J SAHEWALLA,MS. S. TODI Advocate for the Respondent : DY.S.G.I., BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER 19.05.2025 Heard Mr. G.N. Sahewalla, learned Sr. counsel for the petitioner, assisted by Mr. M. Sahewalla. Also heard Mr. R.K.D. Choudhury, learned Dy. S.G.I. appearing for the respondent Nos.1-6. No one appears for the respondent Nos.7-8, as no notice had been issued to the respondent Nos.7-8. 2. The petitioner is aggrieved with the rejection of it’s Technical Bid on the ground that the petitioner has failed to comply with Annexure-20A.13.2 Clause Page No.# 3/11 2(i) of the bid document, which required a bidder to submit Bidder’s Performance Certificate for any 2 (two) works completed in the last 3 (three) years, ending the previous day of the last date of submission of the bid. The respondents had rejected the petitioner’s Technical Bid on the ground that the petitioner had submitted only one Performance Certificate, instead of two. 3. The petitioner has taken this Court through the five documents which the petitioner had allegedly submitted along with it’s bid, wherein two of the works were shown to have been completed within 3 (three) years from the last date of submission of bids. They are- (1) Construction and Upgrading of River Works along the Buridehing River to reduce river erosion risks Package-2 Lot-4. Dibrugarh, Assam and (2) Rehabilitation including river training works of Bridge No. 427/1 on NH-52(New NH No.15) over River Gai under Annual Plan for the year 2019-20 under PWD Nagaon NH Division in the State of Assam under EPC mode. (Job No.-015/AS/2019-20/205)” 4. The petitioner’s counsel submits that as the Executive Engineer, Dibrugarh Water Resources Division, Dibrugarh has issued the Work Completion Certificate in respect of the above two contract works, wherein the petitioner’s performance is reflected, there was no justification on the part of the respondent authorities to reject the petitioner’s Technical Bid, as the petitioner had complied with Annexure-20A.13.2 Clause 2(i) of the bid document. He accordingly submits that the meeting minutes of the 3rd meeting of the Tender Evaluation Committee (TEC) held on 08.05.2025, in so far it relates to the petitioner’s technical bid being rejected should be set aside. 5. Mr. R.K.D. Choudhury, learned Dy. S.G.I. submits that a careful reading of Annexure-20A.13.2 Clause 2(i) of the bid document would show what is Page No.# 4/11 required of the bidders. He submits that the submission of two Work Completion Certificates in the last 3 years ending the previous day of the last date of submission of bids is not the main issue, but a bidder’s “performance” in respect of the completed works is the information required by the State respondents. He submits that the petitioner has only submitted the petitioner’s “performance” in respect of only one work, i.e., “Construction and Upgrading of River Works along the Buridehing River to reduce river erosion risks Package-2 Lot-4. Dibrugarh, Assam”. He submits that the petitioner’s completion certificate dated 30.11.2022 with respect to the contract work pertaining to “Rehabilitation including river training works of Bridge No. 427/1 on NH-52(New NH No.15) over River Gai under Annual Plan for the year 2019-20 under PWD Nagaon NH Division in the State of Assam under EPC mode. (Job No.-015/AS/2019-20/205)” does not show the bidder’s “performance”, as required by the bid document. He also submits that not only the petitioner but the technical bid of another bidder, i.e., Starcon Infra Projects India Private Ltd., had been rejected due to the same reason as the petitioner’s case. 6. Mr. R.K.D. Choudhury, learned Dy. S.G.I. further submits that the financial bids of the two valid tenderers have been opened and Letter of Acceptance has been issued to one Tarun Dutta, i.e., respondent No.7. 7. I have heard the learned counsels for the parties. 8. The issue to be decided is whether the work completion certificate dated 30.11.2022 submitted by the petitioner can be said to be a bidder’s “performance”, as required under Annexure-20A.13.2 Clause 2(i) of the bid document. 9. The extract of the meeting minutes of the 3rd meeting of the Tender Page No.# 5/11 Evaluation Committee (TEC) held on 08.05.2025 pertaining to the petitioner is reproduced hereinbelow as follows:- “B. The following bidder has failed as per the Terms and conditions of NIT mentioned against each bidder. 1. Shree Gautam Construction Company Ltd., 4th floor, Amaze Tower, A.T. Road opposite Pan Bazar overbridge, Beat no. 14, Paltan Bazar, Guwahati-781001. Work Experience: Based on documents submitted by the bidder, it is found that the bidder has submitted work experience document for Work: 1. Improvement and Upgradation of SH-2 (amounting to Rs. 50.458 Crore) including Guide bund & river training works amounting to Rs. 46.83 Crore. Eligible as per Annexure 23 Clause 1.a.(i) One similar works costing not less than 80% of the estimated cost put to tender. However the bidder has failed to comply with the following requirements: 1. Annexure-20A.13.2 Clause. 2) (i) of bid document as per which the bidder is required to submit bidder's performance certificate for any-two works completed in the last 3 years ending previous day of last day of submission of this bid/tender certified by an officer not below the rank of Executive Engineer/Project Manager or equivalent in Form-D. The bidder has submitted only 1 (One) performance certificate. The TEC recommends to reject the technical bid due to non- compliance of the clause mentioned above.” 10. Annexure-20A.13.2 Clause 2(i) of the bid document is reproduced hereinbelow as follows:- “i. The bidder's performance for any two-works completed in the last 3 Page No.# 6/11 years ending previous day of last day of submission of this bid/tender should be certified by an officer not below the rank of an Executive Engineer/Project Manager or equivalent in Form-D. (Scanned copy of performance report to be uploaded).” 11. A perusal of the Annexure-20A.13.2 Clause 2(i) of the bid document clearly goes to show that the bidder’s “performance” in two works completed within the last three years from the last date of submission of bids, had to be submitted in the bid by a tenderer. In fact, Annexure-20A.13.2 Clause 2(i) of the bid document requires a scanned copy of the “performance report” to be uploaded. As such, it is quite apparent that the “performance report” is the basic requirement required in terms of Annexure-20A.13.2 Clause 2(i) of the bid document. 12. The Work Completion Certificate submitted by the petitioner in respect of the work “Construction and Upgrading of River Works along the Buridehing River to reduce river erosion risks Package-2 Lot-4. Dibrugarh, Assam” has provided the following parameters under which the petitioner’s performance has been judged, which is reproduced hereinbelow as follows:- “(i)Quality of Work (indicate grading) :Very Good Comments on the capabilities of the Contractor (a) Technical Proficiency :Very Good (b) Financial Soundness :Very Good (c) Mobilisation of adequate T& P : Very Good (d) Mobilisation of manpower : Good (e) General behaviour : Good This Certificate is issued as per the specific request of the contractor for tender Page No.# 7/11 purpose only and shall not be used for any other purpose.” 13. However, the Work Completion Certificate dated 30.11.2022 for the work “Rehabilitation including river training works of Bridge No. 427/1 on NH-52(New NH No.15) over River Gai under Annual Plan for the year 2019-20 under PWD Nagaon NH Division in the State of Assam under EPC mode. (Job No.- 015/AS/2019-20/205)” does not have any “performance report” on specific particulars/parameters, when compared with the earlier Work Completion Certificate. The Work Completion Certificate dated 30.11.2022 only states “The work has been completed in all respect as per specification and provisions and to the satisfaction of the Deptt.” 14. The petitioner has also annexed the Work Performance Certificate dated 03.12.2019 in respect of the work “Improvement and Upgradation of SH-2 (Beki Bridge to Jania Bazar from Ch 49000 M to Ch 53900 M) in Barpeta District under ASRP”, which provides the performance of the petitioner/bidder, which states as follows:- “(i)Quality of Work (indicate grading) :Very Good Comments on the capabilities of the Contractor (a) Technical Proficiency : Very Good (b) Financial Soundness : Very Good (c) Mobilisation of adequate T& P : Very Good (d) Mobilisation of manpower : Good (e) General behaviour : Good This Certificate is issued as per the specific request of the contractor for tender purpose.” However, the above Work Performance Certificate dated 03.12.2019 does Page No.# 8/11 not come within the provisions of Annexure-20A.13.2 Clause 2(i) of the bid document and the same has been submitted by the petitioner in respect of a different Clause of the bid document. 15. In the case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corpn. Ltd., reported in (2016) 16 SCC 818, the Supreme Court held “that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” 16. In the case of Silppi Constructions Contractors Vs. Union of India, reported in (2020) 16 SCC 489, the Supreme Court has held in paragraph 20 as follows:- “20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or Page No.# 9/11 perversity. With this approach in mind we shall deal with the present case.” 17. The Supreme Court in the two cases of Afcons Infrastructure Ltd. (Supra) and Silppi Constructions Contractors(supra), has held that the owner or employer of a project may give an interpretation to the tender document that is not acceptable to the Constitutional Courts, but that by itself is not a reason for interfering with the interpretation given. The Supreme Court has further stated that the authority floating the tender is the best Judge of its requirements and as to how a tender document has to be interpreted. If two interpretations are possible, then the interpretation of the author must be accepted. The Supreme Court has further held that Courts need to exercise restraint while considering contract/tender matters and there must be an overwhelming public interest to justify judicial intervention. 18. In view of the fact that the State respondents are the author of the terms and conditions of the tender and they have come to a finding that there is no Work Performance Certificate in relation to “Rehabilitation including river training works of Bridge No. 427/1 on NH-52(New NH No.15) over River Gai under Annual Plan for the year 2019-20 under PWD Nagaon NH Division in the State of Assam under EPC mode. (Job No.-015/AS/2019-20/205)”, inasmuch as, no parameters have been laid down in the Work Completion Certificate dated 30.11.2022, vis-a-vis, the other Work Completion Certificates, as mentioned in the foregoing paragraphs, this Court not being a Court of appeal and not having the necessary expertise in such matters, cannot substitute it’s own views with that of the experts in the field. Further, a perusal of the meeting minutes dated 08.05.2025 shows that another bidder, Starcon Infra Projects India Private Ltd. had it’s Technical Bid rejected, on the same ground as that of the petitioner. Page No.# 10/11 19. The requirement of the State respondents and the interpretation as to what is required in relation to a term and condition of the tender document, is best known to the author of the same. When the State respondents have required the performance of a bidder to be provided and the same had been done by the petitioner in one Work Completion Certificate, there was no reason for the petitioner not to have submitted the second Work Completion Certificate in the same manner as it had done in the earlier document. As such, this Court does not have any reason to come to a different reasoning than that of the author of the tender. Exercise of power of judicial review in a contract/tender matter can be done if the approach of the State respondents is arbitrary or mala fide or is meant to favour some bidder. However, where a decision is taken in consonance with the language of the tender document and subserves the purpose for which the tender is floated, this Court would have to restrain itself from interfering with the same, especially when there is no arbitrariness shown, keeping in view the decisions of the Supreme Court. The author of a tender has to be allowed to carry out the purpose for which Annexure-20A.13.2 Clause 2(i) of the bid document has been put in the tender. The reasons for putting the same which is be scrutinized by technical experts should not be tinkered with, just because a different interpretation or understanding of the tender conditions/documents may be possible or can be made. Thus, this Court does not find any ground to interfere with the decision taken by the respondent authorities, especially, when the decision of the State respondents do not appear to be unreasonable and as it is not discriminatory. There is also nothing to show that the decision taken by the respondents is against public interest or has been made with the object of favouring a particular bidder. 20. In view of the reasons stated above, this Court does not find any ground Page No.# 11/11 to exercise it’s discretion in the present case. The writ petition is accordingly dismissed. JUDGE Comparing Assistant