HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case No.:- WP(C) No. 2135/2025 CM No. 4872/2025 Garg and Garg Co. 366, Giani Zail Singh Nagar, Ropar (Pb) Through its Partner Avinash Kumar, aged 63 years S/o Sh. Amrit Lal Gupta. …..Petitioner(s) Through: Mr. Pranav Kohli, Sr. Advocate with Mr. Farhan Mirza, Advocate. Vs 1. Union Territory of Ladakh, Through Principal Secretary, Department of Public Works Leh Ladakh. 2. Chief Engineer, Public Works Department (PMGSY) UT of Ladakh. 3. Executive Engineer, Public Works Department (PMGSY) UT of Ladakh. 4. SGF Infra Pvt. Ltd., 4, Gurah Bakshi Nagar, Jammu. 5. Mahir Constructions Co. Amardeep Construction (JV) Lane No. 3, Umarabad, Near City Hospital, Bhatindi, Jammu. 6. Ashok Kumar Constructions, Karan Nagar, Udhampur-182101. .…. Respondent(s) Through: Mr. Vishal Sharma, DSGI for R-1 to 3. Mr. Rahul Pant, Sr. Advocate with Mr. Dhruv Pant, Advocate for R-4. Sr. No. 116 2 WP(C) No. 2135/2025 Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 08.08.2025 1. The petitioner, in the instant petition, has challenged the decision dated 16.07.2022 of Technical Evaluation Committee read with decision dated 22.07.2025 relating to financial bid whereby the petitioner’s bid has been treated as „non- responsive‟ and the bids submitted by the respondents No. 4 to 6 have been treated as „responsive‟. 2. Briefly stated case of the petitioner is that it had responded to e-NIT dated 21.05.2025 issued by the official respondents for construction of motorable bridge from Burma to Samoor Sand Dune including the road work in district Leh. The total cost of the project was Rs. 51,58,76,655.90/-. Out of the aforesaid cost of the project, the cost component of the road work was Rs. 12.34 crores. 3. The petitioner is stated to have submitted its bid on 25.06.2025 enclosing all the requisite documents including specifications and drawings. On 16.07.2025, the technical bids were opened by the official respondents and the members of the Committee constituted for evaluation of the technical bids, after scrutiny of the documents, submitted its report 3 WP(C) No. 2135/2025 dated 16.07.2025 wherein the bid of the petitioner was treated as „non-responsive‟ on the ground that the requisite documents as per Standard Bid Document (SBD) conditions have not been submitted. 4. The official respondents granted two days’ time in raising objections to the technical evaluation and accordingly, the petitioner, vide communication dated 17.07.2025, clarified to the official respondents that all the documents relating to metrology and design have been enclosed with the tender documents and as such, the reason assigned for rejecting the bid of the petitioner is not available to the official respondents. As a matter of caution, the petitioner again addressed another communication on 17.07.2025 and re-submitted the documents, which it had submitted along with the bid. In spite of this, the official respondents did not respond, which prompted the petitioner to file a representation to the official respondents on 23.07.2025. 5. On 24.07.2025, the official respondents addressed a communication to the petitioner in which they attempted to clarify the justification for treating its bid as „non-responsive‟. The petitioner again approached the official respondents on 25.07.2025 but in the meantime the financial bids of the private respondents were opened despite the said respondents 4 WP(C) No. 2135/2025 being ineligible. Accordingly, the decision pertaining to opening of financial bids of private respondents was uploaded on 28.07.2025. 6. The petitioner has challenged the impugned action of the official respondents on the ground that the petitioner has been arbitrarily and unreasonably disqualified from technical bid from participating in the financial bid on the grounds, which are not tenable. 7. It has been contended that petitioner had submitted all the requisite documents including, drawings, designs and metrology with its bid and as such, the contention of the official respondents that the petitioner had failed to submit these documents is not factually correct. 8. It has been further contended that private respondents particularly respondent No. 4, who has emerged as L-1 after opening of the financial bid was not technically qualified to participate in the tender because it did not fulfill the criteria mentioned in clause 4.4(A) of the Standard Bidding Document (hereinafter to be referred to as „SBD‟) inasmuch as it had not the experience of performing similar work over the last five years and it did not meet the criteria of similar work as laid down in the said clause. Similar objection has been raised by 5 WP(C) No. 2135/2025 the petitioner with regard to the eligibility of respondents No. 5 and 6. 9. Notice of the petition was issued only to the respondents No. 1 to 4 in the first instance because respondents No. 5 and 6 have lost to respondent No. 4 in the financial bid and it is respondent No. 4 who has emerged as L-1 after the opening of the financial bids. 10. Mr. Vishal Sharma, learned DSGI, entered appearance on behalf of the respondents No. 1 to 3 but having regard to the paucity of time, no reply could be filed by him. However, he did produce the relevant record for the perusal of the Court. So far as respondent No. 4 is concerned, it has filed a short affidavit in answer to the contentions raised in the writ petition. 11. Respondent No. 4, in its reply, has submitted that the petitioner had failed to upload Annual Turnover Certificate for financial year 2024-2025 and it did not upload the balance sheet for the said financial year in terms of Clause-4.2(B) & (C) of the SBD. It has been further submitted that the petitioner did not upload the document relating to methodology along with its bid, which was mandatory and that it had only submitted construction programme in the form of CPM Chart 6 WP(C) No. 2135/2025 (Critical Path Method Chart), GAD and Quality Assurance Plan without submitting the document relating to methodology which is a separate and independent document. 12. It has also been contended that the petitioner has not fulfilled the requirement of Clause 7.1(E) of SBD, according to which, it was obliged to furnish the qualification and experience of the design consultant along with the design. 13. Regarding the contention of the petitioner that private respondents did not fulfill the criteria, as prescribed in Clause- 4(A) of the SBD, it has been submitted the said Clause has been interpreted by the official respondents in a manner so as to take total cost of steel bridges executed in single allotment for assessing the cost factor and the same yardstick has been applied by the official respondents in the case of all the bidders including the petitioner, therefore, the petitioner cannot have any grouse with regard to the interpretation of Clause 4(A) of SBD that has been given by the official respondents, the authors of the tender in the present case. 14. I have heard learned counsel for the parties and I have also gone through the material on record as well as the record produced by the official respondents. 7 WP(C) No. 2135/2025 15. Before proceeding to determine merits of the contentions raised by the petitioner in the present petition, it is necessary to understand the scope of judicial interference in the matters relating to the conditions, particularly those relating to interpretation of clauses of the bid document pertaining to eligibility criteria. The Supreme Court has repeatedly evolved the principle that scope of judicial review is very limited in such cases and the same has to be exercised only to prevent arbitrariness or favouritism. 16. In ‘Tata Cellulor Vs. Union of India‟, reported as 1994 (6) SCC 651, the Supreme Court of India has held that there would be no infringement of Article 14 of the Constitution of India if the Government tried to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power unless the power is exercised for any collateral purpose. The Court observed that the scope of judicial review is confined to only three aspects given as under: (i) Whether there was any illegality in the decision which would imply whether the decision making authority has understood correctly the law that regulates its decision making power and whether it has given effect to it; (ii) Whether there was any irrationality in the decision taken by the authority implying thereby whether the decision is so outrageous in its defiance of logic or of accepted moral 8 WP(C) No. 2135/2025 standards that no sensible person who had applied his mind to the question to be decided whatever arrived at and (iii) Whether there was any procedural impropriety committed by the decision making authority while arriving at the decision. 17. The Supreme Court of India went on to formulate the principles governing judicial review in the following words: (i) The modern trend points to judicial restraint in administrative action. (ii) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (iii) 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. iv) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (iv) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere. However, 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. 9 WP(C) No. 2135/2025 (vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 18. In Galaxy Transport Agencies v. New J.K.Roadways, 2020 SCC Online SC 1035, the Supreme Court disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment. After referring to the various decisions, the Supreme Court stated the following legal principles: “14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. V. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818: (AIR 2016 SC 4305), this Court held: “15. We may add 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 10 WP(C) No. 2135/2025 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.” 19. In Silppi Constructions Contractors v. Union of India, 2019 SCC Online SC 1133, the Supreme Court after considering its earlier judgments on the issue, held as under: “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 realize 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 perversity. With this approach in mind we shall deal with the present case.” 11 WP(C) No. 2135/2025 20. Relying upon the afore said judgment in the case of M/s Agmatel India Pvt. Ltd. V. M/s Resoursys Telecom, AIR 2022 SC 1103, the Supreme Court observed as under: “17. The above mentioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or sub-serving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the Constitutional Court, that, by itself, would not be a reason for interfering with the interpretation given.” 21. From the foregoing enunciation of the law on the subject, it is clear that the Court has to constantly keep in mind that it does not sit in appeal over the soundness of the decision. What can be examined by the Court is only as to whether the decision making process was fair, reasonable and transparent. It has been further emphasized that the Courts ought to exercise judicial restraint where the decision is bona fide with no perceptible injury to public interest. It is also clear that the owner of a project who has authored the tender document, is the best person who can interpret its documents. The authority which floats the tender is the best judge who can 12 WP(C) No. 2135/2025 state as to how the documents have to be interpreted and what are its requirements. The Court cannot sit in appeal as an expert either to undertake interpretation of the terms of the tender documents or to sit in the judgment as to what should be the criteria of the eligibility. These are all matters within the domain of the authority issuing the tenders. 22. Reverting back to the facts of the present case, the petitioner contends that private respondents were not technically eligible to participate in the process because they did not fulfill the criteria laid down in Clause 4.4(A) of SBD. According to the petitioner, a bidder, in order to qualify, was required to have completed one steel girder motorable bridge with a bridge component value of Rs. 12.34 crore and completed bridge should have minimum span of 80 percent of long span or 100 meters. According to the petitioner, in the instant case, the private respondents did not qualify the said criteria as instead of having the experience of completing steel girder motorable bridge of the aforesaid value and aforesaid span, they had submitted the certificate, according to which, they were meeting the aforesaid criteria by combination of more than one bridge. 23. In order to determine the merits of the aforesaid submission made by learned Senior Counsel appearing for the petitioner, it 13 WP(C) No. 2135/2025 would be necessary to have a look to clause 4.4(A) of SBD, which is reproduced as under: “To qualify for award of the Contract, each bidder should have in the last 5 years completed as under: 1. Must have completed one steel girder motorable bridge with a bridge component value 12.34 cr. 1/3 Bridge value. The completed bridge shall a minimum span of 80% of long span or 100 Mtrs whichever is less i.e., 56.0 Mtrs; 2. Must have completed one road project value 4.86 Cr. (1/3 Road Value). The following criteria shall meet through one single project with both component or two separate projects completed for each Bridge/Roads work.” 24. At the first blush, a perusal of the afore-quoted clause of SBD tends to support the contention of learned Senior Counsel appearing for the petitioner. However, it seems that the official respondents have interpreted the aforesaid clause in a manner so as to take the combined cost and span of more than one bridge in a single project for determining the eligibility of a tenderer. In fact, it appears that the official respondents have adopted the same yardstick in respect of all the bidders including the petitioner while applying the criteria laid down in afore-quoted clause. The certificate submitted by the petitioner for fulfilling the criteria mentioned in the aforesaid 14 WP(C) No. 2135/2025 clause is also in respect of construction of more than one bridge in a single project. Thus, the decision of the official respondents in adopting the same yardstick while interpreting afore-quoted clause in the case of the bidders cannot be termed as either arbitrary or irrational in any manner. 25. In view of the legal position as discussed hereinbefore, it is not open to this Court to sit in appeal over the interpretation given by the author of the tender document to afore-quoted clause. The contention of the petitioner that respondent No. 4 was not qualified to participate in the tender on account of non-fulfillment of criteria mentioned in Clause 4.4(A) of the SBD is, therefore, without any merit. 26. That takes us to the main issue on the basis of which the bid of the petitioner has been rejected at the technical evaluation stage. According to the official respondents, the petitioner did not submit other required documents including metrology and design. Though in the technical evaluation sheet in column (15), the word „metrology‟ has been mentioned but it appears to be a typographical error. Instead of typing out the word „methodology‟, word ‘metrology‟ has been typed out in column (15) of the sheet. Thus, the case of the official respondents is that the petitioner did not submit other documents including methodoloy and design. The deficiencies 15 WP(C) No. 2135/2025 pointed out by official respondents for rejecting the bid of the petitioner include non-submission of Annual Turnover Certificate of 2024-2025, non-submission of document relating to methodology and non-fulfillment of the requirement of clause 7.1(E) of SBD by not furnishing the qualification and experience of the design consultant. 27. In the above context, learned Senior Counsel appearing for the petitioner has submitted that a bidder was only required to fulfill the criteria of minimum turnover after taking average three years turnover for the last five years and in the case of petitioner it had qualified the said criteria inasmuch as it has average turnover of Rs. 14880.61 crores for the three years out of last five years which was much above the criteria fixed under clause 4.2(B) of SBD. 28. There is no doubt to the fact that the petitioner was having average turnover of three years which exceeded the requisite criteria laid down under SBD. However, as per corrigendum dated 05.06.2025 to e-NIT dated 05.06.2025, a bidder was required to submit Annual Turnover Certificate from Chartered Accountant for the last five financial years (2020-21, 2021-22, 2022-23, 2023-24 and 2024-25). Admittedly, in the present case, the Annual Turnover Certificate for the financial year 2024-25 had not been submitted by the petitioner along with 16 WP(C) No. 2135/2025 its bid document. Once it was specifically provided in the conditions of the tender that a bidder has to submit Annual Turnover Certificate from Chartered Accountant for a particular financial year and the said condition has not been fulfilled, it cannot be stated that the bidder by qualifying the criteria of average minimum turnover for three years has fulfilled the said condition. 29. Submission of Annual Turnover Certificate for the latest financial year appears to be a mandatory condition for the reason that an employer with a view to have an idea about the latest financial status of a tenderer is necessarily required to have the Annual Turnover Certificate of a bidder for the relevant year. Decision of an employer to exclude a bidder who has not submitted latest Annual Turnover Certificate along with his bid cannot be termed as irrational or unreasonable. 30. The other factor on which the technical bid of the petitioner has been rejected is non-submission of document relating to methodology. In this regard, learned Senior Counsel for the petitioner has submitted that along with its bid document the petitioner had submitted CPM Chart, Quality Assurance Plan and GAD as also the design, which is clearly reflected in the bid document submitted. It has been submitted that the 17 WP(C) No. 2135/2025 aforesaid aspect of the matter was clarified to the official respondents by the petitioner in terms of its communication dated 17.07.2025. Copies of these documents have also been placed on record by the petitioner. 31. A perusal of the documents placed on record by the petitioner, which according to it, were submitted with the bid, would reveal that these documents include CPM Chart for construction, Quality Assurance Plan and design. The document relating to methodology does not form part of the material which the petitioner had submitted along with its bid nor has the said document been placed on record by the petitioner along with its writ petition. 32. Learned Senior Counsel appearing for the petitioner has contended that methodology consists of Quality Assurance Plan, GAD and once these documents had been furnished by the petitioner along with its bid, there was no reason for the official respondents to reject its bid. 33. I am afraid the argument advanced by learned Senior Counsel appearing for the petitioner in this regard cannot be accepted for the reason that the methodology is a separate and independent document. The said document relates to the explanation regarding the entire process including technique 18 WP(C) No. 2135/2025 resources and execution parameters of activities involved in the execution of work. None of these aspects are covered under CPM Chart, Quality Assurance Plan or the design. The petitioner, it seems, has failed to provide document relating to methodology along with its bid which was required to be submitted along with the bid. The same is clearly laid down in Clause 4.2 (J) of SBD. 34. Another information, which is missing from the bid of the petitioner is evidence with regard to experience of the design consultant who has prepared the design. As per Clause 7.1(E) of the SBD, the design consultant responsible for designing the bridge must have designed and completed at least three number of bridges of similar span or higher spans with similar specification. It further provides that the bidding contractor has to furnish sufficient evidence in this regard along with other documents and the designs along with detailed working drawings vetted from NIT or any other IIT. In the instant case, the design submitted by the petitioner does not contain aforesaid information with regard to the design consultant. 35. Learned Senior Counsel appearing for the petitioner has submitted that Clause 7.1(E) of the SBD would come into operation only after the allotment of contract and the same would not come into operation at the bidding stage. In this 19 WP(C) No. 2135/2025 regard, the learned Senior Counsel appearing for the petitioner has referred to clause 7.1(C) of SBD which provides for submission of detailed design of the bridge within ten days from the date of issue of allotment order. It has been contended that because clause 7.1(E) follows clause 7.1(C) as such it has to be inferred that it would come into operation only after the allotment of the contract. 36. The contention of the learned Senior Counsel appearing for the petitioner cannot be accepted for the reason that in clause 7.1(E), it has been clearly laid down that bidding contractor shall furnish sufficient evidence with regard to experience of the design consultant whereas in clause 7.1(C) it has been made clear that design of the bridge shall be submitted after the issuance of allotment to the firm. In Clause 7.1(C) the expression used is ‘firm’ whereas in clause 7.1(E) the expression used is ‘bidding contractor’. This makes it clear that clause 7.1(E) comes into operation at the time of bidding whereas clause 7.1(C) comes into operation after the allotment of contract to the firm. Thus, the petitioner by not furnishing information as required under Clause 7.1(E) of SBD exposed itself to rejection of its bid on account of violation of the terms of said Clause. 20 WP(C) No. 2135/2025 37. Lastly it has been argued by learned Senior Counsel for the petitioner that after the opening of the financial bids, it has come to the fore that the financial bid of the petitioner is Rs. 4.59 crores less than the rate quoted by the respondent No. 4 who has been declared as L-1. Therefore, in the interest of public revenue also it would be prudent to award the tender in favour of the petitioner. 38. In the above context, it is to be noted that the Supreme Court of India in Raunaq International Vs. IVR construction Ltd reported as (1999) 1 SCC 492 has held that price may not always be the sole criterion for awarding a contract. It has been further held that evaluation committee is appointed to evaluate offers and the said committee in view of its special knowledge plays a decisive role in deciding which is the best offer. The Supreme Court has further observed that price offered is only one of the criteria and not the only criteria. Therefore, merely because the petitioner had quoted a lesser price than the price quoted by respondent No. 4 does not entitle it to allotment of contract once the expert committee has found that it is not technically qualified. This Court cannot sit in appeal over the decision taken by the Tender Evaluation Committee particularly when there are no 21 WP(C) No. 2135/2025 allegations of favouritism or malafides against the members of the Technical Evaluation committee. 39. For what has been discussed hereinbefore, I do not find any merit in this petition. The same is, accordingly, dismissed. (SANJAY DHAR) JUDGE JAMMU 08.08.2025 Naresh/Secy. Whether order is speaking: Yes Whether order is reportable: Yes … Naresh Kumar 2025.08.12 18:29 I attest to the accuracy and integrity of this document