HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 2527/2025 Reserved on:- 16.09.2025 Pronounced on :- 25.09.2025 M/s S.S Joint Venture …..Appellants Through: Mr. Pranav Kohli, Sr. Advocate with Mr. Arun Dev Singh, Advocate. Vs UT of J&K and anr. .…. Respondents Through: Mr. Ravinder Gupta, AAG CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1. The petitioner, through the medium of present petition has challenged Technical Evaluation Result dated 01.09.2025 issued by the respondent No. 2 whereby, the bid submitted by the petitioner in pursuance to e-NIT No. 05 of 2025-26 dated 11.06.2025 has been rejected and at the same time, the bid submitted by respondent Nos. 3 & 4 has been declared as “Responsive”. A further direction restraining the official respondents from opening the Financial Bids and allotting work to the private respondents has also been sought. 2. It appears that respondent No. 2 has issued e-NIT No. 5 of 2025-26 dated 11.06.2025 for balance work of construction of new Legislature Complex at Jammu with advertised cost of Rs. 126.64 crores. The petitioner as well as private respondent Nos. 3 & 4 submitted their bids in response to the aforesaid e-NIT. Sr. No. 90 2 WP(C) No. 2582/2025 3. According to the petitioner, it has submitted all the requisite documents as per the eligibility criteria and has fulfilled all the prescribed conditions for participation in the tender. Respondent No. 2 after evaluating the bids of the participants has issued the impugned Technical Evaluation Result dated 01.09.2025 whereby, the bid submitted by the petitioner has been rejected, whereas, the bid submitted by the private respondents has been declared as “Responsive”. The bid of the petitioner, it seems has been rejected for having violated Clauses 1.2 and 1.9 of Qualification Criteria of SBD on the grounds that the petitioner has failed to submit/upload turnover certificates for the financial years 2017-18, 2018-19 and 2019-20 and besides this the partner of the petitioner has failed to submit/upload ITRs for the financial years, 2017-18 and 2018-19. 4. The petitioner has challenged the aforesaid action of respondent No. 2 on the grounds that even though the petitioner has failed to upload Turnover certificate for the financial years, 2017-18, 2018-19 and 2019-20 still then, because it has achieved the minimum financial turnover on execution of civil works during one, out of the last seven financial years (not less than 50% of the value of the advertised work), therefore, it fulfills the criteria laid down in Clause 4.5.1 of the SBD. It has been further been submitted that individual ITRs of 07 years and ITRs of the Firm for the last 4 years have also been uploaded by the 3 WP(C) No. 2582/2025 petitioner but despite this, respondent No. 2 has rejected the bid. It has been contended that the petitioner despite being Class-A contractor has been illegally ousted from the tender process in the technical bid. 5. Regarding bid of respondent No. 3, the petitioner has contended that the completion certificate related to A.V Works amounting to Rs. 14 crores that has been uploaded by respondent No. 3 reveals that in the supporting purchase orders, the unit price has been removed by the said respondent in a clandestine manner. Same is the position regarding the bid submitted by respondent No. 4. It has been contended that the official respondents could not have declared the bids of respondent Nos. 3 & 4 as “Responsive” in the absence of complete purchase orders reflecting the unit prices. It has been alleged that the official respondents intend to give preferential edge to respondent Nos. 3 & 4 which is clear from the manner in which bid of the petitioner has been rejected. 6. It has been further contended that the official respondents could not have relaxed any condition of the bid nor they could have called for additional information from the private respondents particularly when the similar treatment has not been given to the petitioner, who has been discriminated against. 7. Mr. Ravinder Gupta, learned Sr. AAG was requested to produce the record relating to the evaluation of technical bids 4 WP(C) No. 2582/2025 before this Court for its perusal. The relevant record has been produced before this Court. 8. I have heard learned Senior counsel appearing for the petitioner and I have also heard Mr. Ravinder Gupta, learned AAG for the official respondents. The record produced by the official respondents has also been perused. 9. 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 tenders. The Supreme Court has repeatedly held that scope of judicial review in matters relating to tenders is very limited and the same has to be exercised only to prevent arbitrariness or favouritism. 10. In ‘Tata Cellulor Vs. Union of India’, reported as 1994 (6) SCC 651, the Supreme 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 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. 5 WP(C) No. 2582/2025 11. 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. (vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 13. 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 6 WP(C) No. 2582/2025 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.” 14. 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. 15. In the light of the aforesaid legal position, let us now advert to the facts of the present case. If we have a look at the Technical Evaluation Result, the petitioner has been declared as Non Responsive on the following grounds:- “1. The bidders fails to upload Turnover certificate for the Financial Year 2017-18, 2019-20 & 2019-20 for Lead Partner and Turnover 7 WP(C) No. 2582/2025 certificate for Financial Year 2017-18 & 2018-19 for 2nd JV partner thus violates clause 1.2 of qualification criteria of SBD. 2. ITR for the Financial Year 2017-18 & 2018-19 not uploaded for 2nd JV Partner thus violates clause 1.9 of qualification criteria of SBD” 16. It is admitted case of the petitioner that it did not upload the Turnover certificate for the Financial year, 2017-18, 2018-19 and 2019-20 for Lead Partner and Turnover Certificate for Financial Year, 2017-18 & 2018-19 for 2nd JV partner. 17. As per Clause 1.2 of the Standard Bidding Document (SBD), a bidder was required to submit/upload financial turnover certificate specified for Civil Engineering Works only for the last seven Financial years (2017-18 to 2023-24) duly certified by Chartered Accountant in compliance with Clause 4.5.1 of the SBD so as to establish that the bidder has achieved a minimum financial turnover on execution of Civil Engineering Works during anyone of the last seven financial years (2017-18 to 2023-24) not less than 50% of the value of the advertised work. To make the things more clear, Clause 1.2 of SBD is reproduced as under:- “1.2 The bidder must submit/upload financial turnover certificate specified for Civil Engineering Works only of the last seven Financial years (2017-18 to 2023-24) duly certified by Chartered Accountant bearing UDIN properly in compliance with Clause 4.5.1 of the SBD so as to establish that the bidder has achieved a minimum financial turnover on execution of Civil Engineering 8 WP(C) No. 2582/2025 Works (defined as billing for works in progress or completed in all classes of Civil Engineering construction works only) during anyone of the last seven financial years (2017-18 to 2023-24) not less than 50% of the value of the advertised work. The information supplied in this connection should be duly certified by a Chartered Accountant with UDIN.” 18. The contention of learned Senior counsel for the petitioner is that turnover certificates for the years, 2017-18 to 2023-24 were to be uploaded/submitted in order to establish that the bidder has achieved a minimum financial turnover on execution of Civil Engineering Works during any one of the last seven financial years not less than 50 percent of the value of the advertised work and this was demonstrated by the petitioner from the financial turnover certificates uploaded by it which related to the Financial years 2020-21 to 2024-25. According to learned Senior counsel for the petitioner, once it was established from the turnover certificates submitted by the petitioner that it had achieved minimum financial turnover in compliance with Clause 4.5.1 of SBD, there was no reason for the official respondents to declare his bid “Non Responsive”. Same argument has been advanced by learned Senior counsel for the petitioner in respect of non- furnishing of ITRs for the financial years 2017-18 and 2018-19 which is a requirement provided under Clause 1.9 of the Qualification Criteria of SBD according to which ITRs for the last 9 WP(C) No. 2582/2025 seven Financial Years i.e. from 2017-18 to 2023-24 have to be submitted by the bidder. 19. In the above context, it is to be noted that it is an admitted position that as per Clause 1.2 of Qualification Criteria given in SBD, a bidder was required to upload turnover certificates for the financial years 2017-18 to 2023-24, whereas, as per Clause 1.9 of Qualification Criteria given in SBD, the bidder was required to upload ITRs for the financial years 2017-18 to 2023-24. It is also an admitted position that the bid of the petitioners was deficient in turnover certificates for financial years 2017-18, 2018-19 and 2019-20 whereas, ITRs of the JV partner for the financial years 2017-18 and 2018-19 were also found lacking. The contention of the petitioner is that even without these documents, it had placed on record alongwith its bid sufficient material to establish that the petitioner as fulfilling the criteria of minimum financial turnover as prescribed under Clause 4.5.1 of the SBD. Even if it is assumed that the petitioner was fulfilling the criteria of minimum turnover during any one of the last seven financial years, still then the requirement of submitting/uploading turnover certificates/ITRs for the period between the financial years 2017-18 to 2019-20 cannot be taken as superfluous. 20. The Supreme Court in the case of Ramana Dayaram Shetty Vs. The International Airport Authority of India and ors; (1979) 3 SCC has held that the words used in the tender 10 WP(C) No. 2582/2025 documents cannot be ignored or treated as redundant or superfluous. They must be given meaning and their necessary significance. Thus, once, it is laid down in the qualification criteria prescribed by an employer that financial turnover certificates and ITRs for particular years are to be uploaded by a bidder, this Court cannot rewrite the terms & conditions laid down in the SBD so as to undertake a judicial review of the logic behind prescribing such a requirement. The same is impermissible in law. 21. The reason behind asking for turnover certificates/ITRs from bidders for a period ranging over seven or even more financial years is not only to ascertain as to whether the bidder has achieved minimum prescribed financial turnover in a particular year but also to ascertain the financial stability of the bidder. It is always open to an employer to ask for financial `statements spreading over several years so as to ascertain the financial stability of the bidder. Such a requirement cannot be termed as irrational or unnecessary. Thus, the decision of respondent No. 2 in rejecting the bid of the petitioner despite fulfillment of minimum eligibility criteria in terms of Clause 4.5.1 of the SBD cannot be termed as arbitrary. 22. It has been contended by learned Senior counsel appearing for the petitioner that as per clause 1.1.1 (viii) (b) of Chapter-I of Manual for Procurement of Works issued by Government of India, 11 WP(C) No. 2582/2025 Ministry of Finance, instructions have been issued to procuring entities to see that matters like turnover and financial strength do not result in unreasonable exclusion of eligible Class-I Local Suppliers/Class II Local Supplier, as such, the non-furnishing of turnover certificates/ITRs could not have been made a basis for rejection of bid of the petitioner. In this regard, it is to be noted that the petitioner is neither Class-I nor Class-II local supplier within the meaning of Clauses (viii) and (ix) falling under the head “Procurement Glossary” of the aforestated Manual. Thus, the Clause 1.1.1 (vii) (b) of the Manual cannot be made applicable to the case of the petitioner. 23. Another contention that has been raised by learned Senior counsel appearing for the petitioner is that in the purchase orders supporting the completion certificates submitted by respondent Nos. 3 & 4, the unit price and the amount of rate is not mentioned so as to establish that the said respondents meet the eligibility criteria. 24. In the above context, it is to be noted that it is correct that respondent Nos. 4 & 5 have not, in the purchase orders uploaded by them in support of completion certificates, given breakup of unit price of different items but the total value of the purchase orders is clearly mentioned in the purchase orders uploaded by both the private respondents which clearly substantiate the contents of the completion certificates uploaded by the 12 WP(C) No. 2582/2025 respondents. In the above context, learned counsel for the official respondents has submitted that a clarification was sought from the private respondents and it was clarified by the said respondents that the unit price of individual items have been masked and if need be the same can be provided. It is to be noted that as per the eligibility criteria, it is the total value of the purchase order and not the value of individual items which is to be taken into account. Therefore, once purchase order mentions the total value, it cannot be stated that the private respondents have not met the eligibility criteria. 25. Lastly, it has been contended that the official respondents have sought clarifications from the private respondents thereby relaxing the conditions but in the case of the petitioner, similar treatment has not been given, as a result whereof, the petitioner has been invidiously discriminated. 26. In the above context, it would be necessary to have a look at Clause 4.5.1 of Manual for Procurement of Works, which permits the employer to seek clarifications in certain cases. The said Clause reads as under:- “5.4.5 Clarification of Bids/ Shortfall Documents During evaluation and comparison of bids, the Procuring Entity may, at his discretion, ask the bidder for clarifications on the bid. The request for clarification shall be given in writing by registered/ speed post, asking the tenderer to respond by a 13 WP(C) No. 2582/2025 specified date, and also mentioning therein that, if the tenderer does not comply or respond by the date, his tender will be liable to be rejected. Depending on the outcome, such tenders are to be ignored or considered further. No change in prices or substance of the bid including specifications, shall be sought, offered or permitted. No post-bid clarification at the initiative of the bidder shall be entertained. The shortfall information/ documents should be sought only in case of historical documents which pre-existed at the time of the tender opening and which have not undergone change since then. These should be called only on basis of the recommendations of the TC. (Example: if the Permanent Account Number, GSTN number has been asked to be submitted and the tenderer has not provided them, these documents may be asked for with a target date as above). So far as the submission of documents is concerned with regard to qualification criteria, after submission of the tender, only related shortfall documents should be asked for and considered. For example, if the bidder has submitted a contract without its completion/ performance certificate, the certificate can be asked for and considered. However, no new contract should be asked for so as to qualify the bidder. 27. From a perusal of the aforesaid clause, it is clear that an employer can seek clarification of bids on certain aspects. However, no change in prices or substances of bids including specifications can be sought nor any post-bid clarification can be sought at the instance of a bidder. In the clause itself, the illustrations relating to the nature of clarifications have been 14 WP(C) No. 2582/2025 given. From these illustrations, it can safely be inferred that while an employer can seek clarification from a bidder but these clarifications have to be in respect of pre-existing documents i.e. the documents submitted along with the tender. 28. In the present case, the official respondents have sought clarification vide communication dated 14.08.2025 from the private respondent No. 3. The relevant excerpts of the said communication are reproduced as under:- “While scrutinizing your bid it has been observed that you have provided the following 3 no. completion certificates for which further clarification is required: 1. Project at Air India Academy, GGN (P.no. 284 of your bid) 2. Go-Live Certificate-Itanagar ICCC Project (P.no. 338 of your bid) 3. Go-Live certificate of Arunachal Pradesh State Data Centre (P.no. 342 off your bid) For the completion certificate at s.no. 1 provide the detailed BOQ/work orders for the work executed under the PO number PO/2324/03251 of PO dated 5.01.2024 and for the completion certificates at s.no. 2 & 3 provide the detailed BOQ/work orders with the bifurcated quantums (amounts) of the various works executed under this particular project. Provide the desired information at the earliest so that we may proceed with the Technical Evaluation of your bid” 15 WP(C) No. 2582/2025 29. From a perusal of the aforequoted communication, it is clear that the official respondents have sought clarification from respondent No. 3 only in respect of pre-existing documents and no fresh document has been sought from the respondent No. 3. These clarifications, as is evident from the contents of communication dated 14.08.2025, pertain to purchase orders that were produced by respondent No. 3 along with the bid document. Thus, it cannot be stated that these clarifications were beyond the scope of Clause 5.4.5 of Manual for Procurement of Works. The contention of learned Senior counsel for the petitioner is, therefore, without any merit. 30. For what has been discussed hereinbefore, I do not find any merit in this petition. The same is dismissed, accordingly. 31. Record be returned. (SANJAY DHAR) JUDGE JAMMU 25.09.2025 Tarun/PS Whether the order is speaking? Yes Whether the order is reportable? Yes Tarun Kumar Gupta 2025.09.24 22:50 I attest to the accuracy and integrity of this document