Sudhir Kumar Thakur v. Mr. Sanjib Kumar Swain, Additional Government Advocate

Questioning rationality in specifying eligibility condition in Clause 2.1.5 of the Tender Call Notice bearing Bid Identification No.BPT/Online-15/2025-26 dated 29.11.2025 issued by the Chief Construction Engineer, Rural Works Circle, Bhawanipatna with respect to work, i.e., “Road & Bridge work including 05 years Post Construction Maintenance under MMSY-CUVDA, SCA, MMSY-CMRL and MMSY-TRIP Schemes in the district of Kalahandi and Nuapada through e- procurement as per Annexure”, the present writ petition has been filed for grant of relief with the following prayer(s):

In the facts and circumstances of the case, the petitioner respectfully prays that the Hon’ble Court may be graciously pleased to admit this writ petition, issue notice to the Opp. Parties to show cause as to why the eligibility criteria i.e. the clause 2.1.5 of page-28 of the tender call notice under annexure-5 shall not be quashed and if the O.Ps failed to show cause or show insufficient cause, the Hon’ble Court upon hearing the parties may be further pleased to allow this writ petition quashing the clause 2.1.5 of the tender call notice dated 29.11.2025 by issuing a writ in the nature of Mandamus or any other appropriate writ thereby allowing the petitioner to participate in the tender process and may be further pleased to pass such other order/orders, direction/directions as may be deemed expedient in the interest of justice and for this act of kindness as the petitioner is duty bound shall ever pray.

It is the case of the petitioner that the Chief Construction Engineer, Rural Works Circle, Bhawanipatna, opposite party no.2, issued a Tender Call Notice (“TCN”, for short) with respect to work as mentioned above with the bid availability date as 24.12.2025 and closing date 08.01.2026. A corrigendum was issued by extending said dates as 23.12.2025 and

19.01.2026 respectively. Said dates were further changed by issue of another corrigendum fixing date of availability as

05.01.2026 and last date as 29.01.2026. Said dates were rescheduled to 31.01.2026 and 10.04.2026. Likewise, 4th corrigendum came to be issued informing that bid document in the portal will be available from 18.03.2026 to 21.04.2026 and the date and time of opening of the tender were fixed on

10.04.2026 and 22.04.2026 with stipulation that “all other terms and conditions remain unchanged”.

2.1. The TCN specified that bid should be submitted online in the designated website opposite parties, i.e., https://www.tendersorissa.gov.in.

2.2. The petitioner, registered and recognized as PWD Contractor as per registration certificate granted by the Government of Odisha, assigned with registration certificate and successfully executed similar nature of works during the period from 2016 to 2021, but not for the last five years. Although since 2021 he has been taking part in several tenders, but in vain as the authorities adopted lottery system while selecting the tenderer.

2.

In present case, the petitioner applied for different works of about 13 number of works out of 76 works advertised. After going through Clause-2 of the Instructions to tenderers under the Heading “Eligibility Criteria” vide Clause 2.1, wherein one of the conditions is stipulated in Clause 2.1.(5) as the tenderer has to have completed similar nature of work worth 75% of the estimated cost put to tender during any three financial years of the “last preceding five years”. Perceiving that the petitioner has not been able succeed in different tenders on earlier occasions on account of lottery system, and the eligibility criteria stipulated in the instant tender as stated above, has approached this Court by way of filing this writ petition for relaxing the clause “last preceding five years” so as that his experience from 2016 to 2021 would come to his rescue.

2.

Hence, the petitioner assailed to question is legality of placing such unreasonable and arbitrary clause impeding participation of many intending bidders.

Smt. Sujata Jena, learned Senior Advocate assisted by Ms. Sonali Panda, Advocate submitted that the restrictive Clause

2.1.(5) deprived large number of contractors of participating in the tender process which in her considered approach is bereft of rational nexus with the object sought to be achieved. The contractors having experience of more than 10 years in the similar nature of work, though could not be successful due to certain disadvantageous factors, could not be said to be inexperienced or ineligible to execute the nature of work advertised.

3.1. Having referred to Vinishma Technologies Pvt. Ltd Vrs. State of Chattisgarh, (2025) 10 SCR 301, the learned Senior Advocate would submit that the condition as put upon in Clause 2.1.(5) of the Instructions to the Tenderers runs contrary to the ratio laid down by the Hon’ble Supreme Court of India. Elaborating further she urged that in the said reported case, the condition for determining eligibility was that the bidder must have supplied sports kits worth Rs.4.60 crore to the State Government Agency in the last three financial years. In consideration of such a condition, the Hon’ble Supreme Court of India was pleased to hold that the said restriction is not only arbitrary and unreasonable but also discriminatory offending the provisions enshrined in Article 19(1)(g) of Constitution of India. Drawing parity between the said case and the present case, it is sought to be highlighted that the condition imposed to by the opposite parties fixing the criteria for the bidder to have executed similar nature of work “during any three financial years taken together of the last preceding five years” would pose disproportionate to the goal to be achieved and such a condition would frustrate ensuring effective execution of work.

3.2. Therefore, she prayed for intervention of this Court by exercising power of judicial review to quash the condition laid in Clause 2.1.(5).

4. Opposing the stance of the petitioner, Sri Sanjib Kumar Swain, learned Additional Government Advocate, per contra, submitted that the prayer(s) made in the writ petition to question Clause 2.1.(5) solely is misconceived inasmuch as no challenge is laid against Clause 2.1.(6). Conceding for the sake of argument, but not accepting, even if Clause 2.1.(5) is interfered with, in absence of challenge being made to condition stipulated in Clause 2.1.(6), it would enure benefit to none.

4.1. Having referred to Biswajit Rath Vrs. State of Odisha, 2026 SCC OnLine Ori 81, Sri Sanjib Kumar Swain, learned Advocate submitted that the case law in Vinishma Technologies Pvt. Ltd. (supra) upon which heavy reliance is placed by Smt. Sujata Jena, learned Senior Advocate is distinguishable on facts. The nature of works advertised in the present tender involves technical expertise in contradistinguishing the nature of supply of goods envisaged in the tender in the latter which fell for consideration by the Hon’ble Supreme Court. Having no parity in the nature of work, the reliance on Vinishma Technologies Pvt. Ltd. (supra) by the learned Senior Counsel for the petitioner is misplaced.

4.2. For having not been able to demonstrate that the condition as put upon for the purpose of present nature of works advertised, the petitioner cannot be granted any relief. The writ petition deserves to be dismissed.

For better appreciation of the rival conditions, it is fruitful to have reference to Clause 2.1.(5) and Clause 2.1.(6) in juxtaposition. Said Clauses as found place at Annexure-5 are reproduced hereunder:

2.1. Eligibility Criteria The eligibility criteria for participation in this tender are given below. The tenderer(s) should go through these eligibility criteria before participating tender. Tenderer(s) not fulfilling the eligibility criteria and submitted with the tender documents in online, the tender will summarily be rejected. (1) to (4) *** (5) (6) The intending tenderer(s) should have executed similar nature of work worth 75% of the estimated cost put to tender (as in Col-3 of annexure of NIT) during any three financial years taken together of the last preceding five years. In case of Contract spanning for more than one financial year, the break up of execution of work in each of financial year should be furnished. A certificate to this effect must be enclosed from the officer not below the rank of Superintending Engineer / Executive Engineer or equivalent officer. intending tenderer(s) should have The financial turn over in respect of Civil Engineering works of an amount not less than the amount put to tender (as in Col-3 of Annexure of NIT) during any 3 (three) financial years taken together of the last preceeding five financial years. The financial turnover certificate for Civil Engineering works should be submitted clearly the financial turnover financial year wise.

the Charted Accountant showing

5.1. Reading both the clauses extracted hereinabove would show that even if this Court would show indulgence, in absence of appropriate pleading with prayer with respect to Clause 2.1.(6) would negate any relief to the petitioner as contended by the learned Additional Government Advocate.

The pivotal challenge made against the Clause 2.1.(5) is based upon the fact that the petitioner being registered as Class ‘B’ (Diploma Engineering) contractor and having requisite educational qualification with adequate expertise in executing the works of the nature floated in the tender, the eligibility condition stipulated in the NIT is not only burdensome and arbitrary, but also targets elimination of other eligible contractors and therefore, such conditions should be excluded from the said tender document.

6.1. We are conscious of the proposition of law that the scope and jurisdiction exercised by the writ Court under Article 226 of the Constitution of India in relation to an incorporation of any terms and conditions in the tender call notice is limited and, therefore, the Court must meticulously examine the said clauses keeping in mind the object and the purpose and the character of the work which the Authorities intended to be executed by the participating tenderers. There is no cavil of doubt that incorporation of the terms and conditions in the tender call notice is within the domain of the Authorities floating the tender and such freedom is inhered and ingrained in them as they are the best persons to decide as to what conditions should be incorporated to ensure not only timely execution of the entire work but also the quality of such work. The writ Court should seldom interfere in the terms and conditions embodied in the tender call notice unless such conditions are per se arbitrary, irrational and does not withstand the test of reasonability. The Court may interfere when such conditions are actuated with malice, embracing favoritism and nepotism and tailored to suit a particular person.

6.2. Simply because a particular intending tenderer does not qualify for taking part in the bidding process in view of ineligibility clause in the tender, the same does not ipso facto invite the action of the authorities to be declared arbitrary and/or unreasonable. The reasonability test stands on the Wednesbury principle and to be tested in the perspective of the object and the purpose underlying the incorporation of such clauses.

6.3. The Hon’ble Supreme Court of India in Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers Vrs. New J.K.Roadways, Fleet Owners and Transport Contractors 2020 SCC OnLine SC 1035, held as follows: “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. Vrs. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, this Court held: courts must defer ‘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 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 constitutional courts but that by itself is not a reason for interfering with the interpretation given.’ is not acceptable

In the judgment in Bharat Coking Coal Ltd. Vrs. AMR Dev Prabha, 2020 SCC OnLine SC 335, under the heading “Deference to authority’s interpretation”, this Court stated: It is obvious ‘51. Lastly, we deem it necessary to deal with another fundamental problem. Respondent No. 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.

In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No.6 in submitting performance bank guarantees or their decision to resume auction on grounds of failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. technical (Afcons Infrastructure Ltd Vrs. Nagpur Metro Rail Corporation Ltd, (2016) 16 SCC 818).

The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL’s interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality.’

In Silppi Constructions Contractors Vrs. Union of India, 2019 SCC OnLine SC 1133, this Court held 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 perversity. With this approach in mind we shall deal with the present case.’ ***”

6.4. In Agmatel India Pvt. Ltd. Vrs. Resoursys Telecom, (2022) 18 SCR 861 the view of the Hon’ble Supreme Court of India is noteworthy in the present nature of fact-situation:

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 subserving 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 interpretation given

interfering with

6.5. Diligent consideration of the arguments advanced by the counsel for the both sides, it emanates that the Court while in seisin of condition contained in the tender document is required to show deference the view expressed by the authority that authors the tender document, who is the best person to understand and appreciate its requirements. Save and except preventing the circumstances/eventualities like arbitrariness, irrationality, bias, mala fides or perversity, there is little scope for showing indulgence.

6.6. At this juncture it may be expedient to have regard to the following dicta laid in Union of India Vrs. Arulmozhi Iniarasu, (2011) 7 SCC 397:

Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well- settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. The observations of the courts are neither to be read as Euclid's theorems nor as provisions of statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. [Ref. Bharat Petroleum Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV) Vrs. State of Maharashtra, (2008) 1 SCC 494 and Bhuwalka Steel Industries Ltd. Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273.

6.7. Thus being the principle enunciated by the Hon’ble Supreme Court of India, when the present context is examined vis-à-vis contentions raised by the petitioner with reference to Vinishma Technologies Pvt. Ltd. Vrs. State of Chhattisgarh and another, (2025) 10 SCR 301, it may not be inept to say that the eligibility criteria enshrined in the tender document must have a nexus with the object sought to be achieved; nonetheless, if any specialized work is required to be undertaken, there is no fetter on the part of the tendering authority to incorporate any conditions.

6.8. There is no quarrel to the proposition with the incorporation of any terms and conditions must ensure the level playing field doctrine and any stringent conditions which creates an unreasonable restriction in participation is always regarded as the action offending the aforementioned doctrine. Therefore, a distinction has to be drawn between the tender floated for supply of material either from the manufacturers or the dealers, which is of a general nature and the construction of a structure requiring particular specification, quality and expertise in this regard.

6.9. In Utkal Suppliers, Berhampur, Ganjam Vrs. Veer Surendra Sai Institute of Medical Sciences and Research, Burla, Sambalpur, 2025 SCC OnLine Ori 4669, this Court held as follows: “13. What could be culled out from the aforementioned reports that the administrative action of the authorities in a contractual field is amenable to be tested in exercise of powers of judicial review, provided such action is arbitrary, unfair, unreasonable, irrational and violates the core fabric of Article 14 of the Constitution of India. The discriminatory action manifested administrative action is opposed to the doctrine of “level playing field”. Any terms and conditions incorporated in the tender to restrict its participation amongst the particular class of persons without any discernible rationality in it disturbs the “level playing field” and may be termed as arbitrary. The test of arbitrariness can also be decided when such act betrays, caprice or a mere exhibition of the will of the authority.

Thus, the safest course to ascertain the arbitrariness in the action of the administrative authorities is whether the condition imposed in the tender document has any nexus to the object sought to be achieved eradicating the vice of arbitrariness or an unfair treatment amongst the eligible candidates.

15. In the instant case, before the finalization of the terms and conditions to be incorporated in the proposed tender document, Pre-bid meeting was held intending suggestions and/or objections. Several inviting including the petitioner gave participants suggestions and the main focus was on the marks allotted on the basis of the turnover. The authority, which is the expert body, justified the fixation of the turnover giving a reason that the nature of the services ordained the seamless supply of the foods to the indoor patients for two or three months in the event the payments are not made, which cannot be said irrational and/or arbitrary. The financial capacity for uninterrupted services to be rendered to the patients is clearly discernible from the decision of the administrative authorities, who are well versed with the realities gained from the past experience, which cannot be said to be arbitrary or disturbs the fabric of “level playing field”.”

6.10. In the light of the exposition of law as discussed above, if the present tender is glanced at the Chief Construction Engineer, Rural Works, Circle, Bhawanipatna on behalf of Government of Odisha invited tenders for “Road and Bridge work Including 05 years Post-Construction Maintenance under MMSY- CUVDA, SCA, MMSY-CMRL and MMSY-TRIP Schemes” in the districts of Kalahandi and Nuapada, which in the considered opinion of the author inviting tender does involve technical factors requiring expertise in the field. Since the road and bridge work invites specialized and experienced contractor, it may impact the lives of the citizens using the same for communication, any conditions which are imposed with an intent to ensure the quality work under the strict supervision of expert(s) cannot be said to be arbitrary or offending the core fabric of level playing field.

6.11. It admits no ambiguity with a freedom to some extent must be given to an authority floating the tender to incorporate the terms and conditions, an interference without any grounds as aforesaid, should be avoided. It is open to the authority floating a tender to incorporate the conditions including the eligibility criteria which must be corelated with the purpose and object sought to be achieved and once the same is discernable from the document, the interference becomes minimal.

6.12. This Court, thus, does not find any substance in the stand of the petitioner that such eligibility criteria is arbitrary and opposed to the level playing field doctrine.

Having thus found no reason to interfere with the eligibility criteria stipulated in the NIT, the writ petition, sans merits, is dismissed. Pending Interlocutory Application(s), if any, shall stand disposed of. (Harish Tandon) Chief Justice (M.S. Raman) Judge MRS/Laxmikant