HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case: WP (C) No. 2295/2025 CM No. 5310/2025 CAV No. 1913/2025 Jatinder Dhingra …..Petitioner Through: Mr. Aditya Grover, Advocate (Through virtual mode) Vs National Highway Authority of India and others .…. Respondents Through: Mr. Vipan Gandotra, Advocate for R-1 to 3. Mr. D. C. Raina, Sr. Advocate with Mr. Rohan Nanda, Advocate for R-4. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 22.08.2025 1. The petitioner, through the medium of the present petition, has challenged the technical evaluation dated 12.08.2025 in respect of e-NIT No. NHAI/RO-JMU/PIU-SGR/2025-26/1 dated 20.05.2025. 2. Issue notice to the respondents. Mr. Vipan Gandotra, Advocate accepts notice on behalf of the respondents No. 1 to 3 and Mr. Rohan Nanda, Advocate who is on caveat, accepts notice on behalf of the respondent No. 4. 3. I have heard learned counsel for the parties and I have also gone through the record of the case. 4. As per the case of the petitioner, pursuant to e-NIT No. NHAI/RO-JMU/PIU-SGR/2025-26/1 dated 20.05.2025, Sr. No. 110 2 WP(C) No. 2295/2025 which pertains to “Supply, Installation and Maintenance of W-Beam metal crash barrier and anti-glare devices on Srinagar to Banihal section of NH-44 from Km. 220.700 to Km. 286.110 in Union Territory of Jammu and Kashmir”, the petitioner is stated to have submitted his bid within the stipulated period on 14.06.2025. 5. It has been submitted by the petitioner that the official respondents carried out technical evaluation of all the bids and declared the result of technical evaluation on 23.06.2025 whereby the bid of the petitioner was held to be ‘non-responsive’ on the solitary ground of manpower while terming the said bid as ‘responsive’ in respect of all other parameters. It has been further submitted that the official respondents sought clarification from the petitioner and other non-responsive bidders in respect of the defects pointed out in the technical evaluation report dated 23.06.2025 to which the petitioner is stated to have responded vide communication dated 26.06.2025 by demonstrating that he has already submitted the material in respect of the manpower parameter at page 86-93 of the bid document. 6. It has been submitted that the official respondents conducted another technical evaluation on 12.08.2025 in which the petitioner has been declared as ‘non-responsive’ on fresh parameters viz that the bidder does not meet the 3 WP(C) No. 2295/2025 minimum eligibility criteria as per Clause 4.4 B (ii) of RFP as also due to the reason that M/s Utkarsh India Limited has denied confirmation of OEM authorization letter, hence also non-responsive under Clause 4.4 B (b) read with Clause 4.4. B (b) (iii) of Appendix of bid of RFP. 7. The petitioner has challenged the impugned action of the official respondents on the ground that the official respondents have conducted two technical evaluations which is impermissible in law. It has been contended that in the instant case, the official respondents have conducted first technical evaluation of the bids on 23.06.2025 and thereafter conducted fresh technical evaluation on 12.08.2025, which is under challenge in the present writ petition. 8. It has also been contended that Clause 4.4 B (ii) does not exist in the RFP at all, as such, reference to the said clause in the impugned technical evaluation clearly shows non- application of mind on the part of the official respondents. It has been contended that once the petitioner was declared as ‘responsive’ in respect of parameters excepting the parameter of manpower, it was not open to the official respondents to include another parameter relating to authorization by OEM in the second round of technical evaluation. It has been further contended that the official respondents have rejected most of the bids on the ground of 4 WP(C) No. 2295/2025 non-authorization by OEM M/s Utkarsh India Limited, which clearly demonstrates malafides at their hands. 9. Before dealing with the merits of the issues raised by the petitioner, it would be apt to notice the legal position as regards the scope and power of the Court in interfering with matters relating to tender. The Supreme Court has, in the case of ‘Tata Motors Limited Vs. The Brihan Mumbai Electric Supply and Transport Undertaking (best) and Ors’, 2023 SCC Online SC 671, analyzed the legal position in this regard after surveying its previous precedents on the subject. Paras 50 and 55 to 57 of the judgment are relevant to the context and the same are reproduced as under: “50. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of 5 WP(C) No. 2295/2025 us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. (See: Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489). 55. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three- Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679. 56. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be 6 WP(C) No. 2295/2025 fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. 57. As observed by this Court in Jagdish Mandal v. State of Orissa and Others, reported in (2007) 14 SCC 517, that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. 10. From the foregoing analysis of the legal position on the subject, it is manifest that ordinarily a court should not interfere in matters regarding tender or contract. The court has to exercise its powers under Article 226 of the Constitution of India with circumspection and even if there are some procedural lapses, the courts should not interfere in such matters unless there is manifest arbitrariness or 7 WP(C) No. 2295/2025 irrationality committed by an employer. In such cases, the courts have to set off its hands from such matters. 11. With the aforesaid legal position in mind, let us now advert to the contentions raised by learned counsel appearing for the petitioner for impugning the action of the official respondents. The first ground urged by learned counsel for the petitioner is that official respondents have conducted two technical evaluations which is not permissible in law. 12. In the above context, if we have a look at the technical evaluation dated 23.06.2025, it is clearly mentioned in the result pertaining to said evaluation that the same is preliminary technical evaluation meaning thereby that technical evaluation of the bids was not finalized by the official respondents when they declared the result of the preliminary technical evaluation on 23.06.2025. A plain reading of the impugned technical evaluation dated 12.08.2025 makes the things more clear. It is clearly mentioned in the said technical evaluation that the same is the result of final technical evaluation, which has been arrived at subsequent to uploading of preliminary result of evaluation and receipt of representations from the bidders. Thus, when we take into consideration both the technical evaluations dated 23.06.2025 and 12.08.2025, one comes to an irresistible conclusion that the initial technical evaluation was preliminary in nature wherafter the representations of 8 WP(C) No. 2295/2025 the bidders were considered and final result was arrived at in terms of impugned final technical evaluation result dated 12.08.2025. The contention of the learned counsel for the petitioner in this regard is, therefore, misconceived. 13. The other contention that has been raised by learned counsel for the petitioner is that in the preliminary technical evaluation, the petitioner was declared ‘responsive’ in respect of parameters excepting the parameter relating to manpower, therefore, in the final result of the technical evaluation, he could not have been declared as ‘non- responsive’ in respect of a parameter which did not find mention in the preliminary technical evaluation. 14. The record tends to show that in the preliminary technical evaluation result, the petitioner was shown ‘responsive’ in respect of the parameter relating to authorization from OEM but in the impugned final technical evaluation result, he has been found ‘non-responsive’ in respect of this parameter as well. 15. In order to clarify this position, learned counsel for the official respondents has submitted that during the process for evaluation of the bids, the certificates of authorization issued by OEMs were got verified from the relevant OEMs and upon receipt of report of verification relating to the authenticity of certificates issued by OEM M/s Utkarsh India Limited (respondent No. 6), it was conveyed to the 9 WP(C) No. 2295/2025 official respondents through email dated 30.06.2025 that the said company is presently aligned only with respondents No. 4, 5 and one M/s Ceigall India Limited. Thus, the said OEM did not confirm the authenticity of authorization certificate issued by it in favour of the petitioner. A copy of the communication has been produced by the learned counsel, which is taken on record. 16. From the above, it is clear that after holding the preliminary technical evaluation of the bids and during the process of scrutinizing the bids for final technical evaluation, the official respondents received the aforesaid information from the OEM of the petitioner (respondent No. 6) and this aspect of the matter has not been disputed by learned counsel for the petitioner during the course of arguments nor is there any pleading in the writ petition to contradict this position. 17. As per Clause 4.4 B (b) (iii) of the Bid document, a bidder has to annex authorization from the OEM as stated in appendix to ITB. In terms of Clause 4.4B (b) (iii) of appendix to bid, the bidder has to have authorization letter from OEM of Supply of W-Beam Metal Crash Barrier from any vendor whose source approval has been accorded on at least three NHAI projects. It further provides that bids submitted without OEM are to be outrightly rejected. 18. Respondent No. 6-M/s Utkarsh India Limited is admittedly a vendor whose source approval has been accorded in NHAI 10 WP(C) No. 2295/2025 projects and the petitioner had, along with his bid, submitted authorization letter from respondent No. 6. However, the authenticity of the same has not been confirmed by respondent No. 6 in terms of email dated 30.06.2025. Thus, the condition mentioned in clause 4.4 B(b) (iii) of RFP read with Clause 4.4 B (b) (iii) of appendix to the bid has not been fulfilled by the petitioner which, in terms of the aforesaid clause, entails outright rejection of the bid. 19. Another contention which has been raised by learned counsel for the petitioner is that in the impugned final technical evaluation, it is mentioned that the petitioner does not meet the minimum eligibility criteria as per Clause 4.4 B (ii) of RFP and in fact there is no such clause existing in the RFP. The learned counsel is correct in his submission that no such clause exists in RFP but a closer look at the conditions of RFP reveals that it appears to be a mere typographical error inasmuch as the official respondents have referred to Clause 4.4 B(ii) of RFP instead of referring to Clause 4.4 B (b) (ii) of RFP. The said clause pertains to availability for the work of personnel with qualification and experience for the project. The deficiency on account of the said parameter was pointed out to the petitioner in the preliminary technical evaluation also. 11 WP(C) No. 2295/2025 20. Merely because there has been a typographical error in referring to the relevant clause of RFP in the final technical evaluation result does not make the impugned action of the official respondents irrational and arbitrary. As has been already discussed hereinbefore, a mere aberration in the procedure or some accidental slip or typographical error in mentioning the relevant clause in the technical evaluation result cannot form a basis for scrapping the whole tendering process. 21. Even otherwise, the petitioner had the knowledge of the fact that there was a deficiency in the parameter of manpower in his bid. As already stated it was pointed out to the petitioner vide preliminary technical evaluation result, whereafter he had responded by making a representation to the official respondents. The deficiency pointed out by the official respondents at the time of initial technical evaluation of the bid was that the petitioner had not annexed experience certificates of the manpower mentioned in his bid document. It seems that after pointing out this deficiency, the petitioner submitted fresh documents with the official respondents, which could not have been accepted by the respondents in terms of Clause 20.2 of RFP. So, the petitioner was already knowing that his bid document was deficient on this parameter and, therefore, merely because there was some typographical error in making reference to 12 WP(C) No. 2295/2025 the relevant clause of RFP in the final technical evaluation result, the same has not caused any serious prejudice to the petitioner. 22. Lastly, it has been contended by learned counsel for the petitioner that the act of non-authentication of OEM certificates by respondent No. 6 smacks of malafides and it amounts to cartelization. I am afraid the petitioner has not given any specific details on this aspect of the matter. In fact, respondent No. 6, vide its email dated 30.05.2025, has verified the OEM certificate of not only respondent No. 4 but it has also authenticated certificates issued in favour of two more tenderers viz respondent No. 5 and one M/s Ceigall India Limited. Therefore, the contention of the petitioner in this regard is without any substance. 23. For the foregoing discussion, I do not find any merit in this petition. The same is, accordingly, dismissed. (SANJAY DHAR) JUDGE JAMMU 22.08.2025 Naresh/Secy. Whether order is speaking: Yes Whether order is reportable: Yes Naresh Kumar 2025.08.28 13:55 I attest to the accuracy and integrity of this document