W.P. (C) 3434/2026 Page 1 of 31

$~47

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision : 06.04.2026

+ W.P.(C) 3434/2026, CM APPL. 16499/2026

M/S HAZOOR MULTI PROJECTS LIMITED .....Petitioner

Through: Mr. Puneet Taneja, Sr. Advocate with

Mr. Amit Yadav and Mr. Manmohan

Singh Narula, Advocates.

Versus

UNION OF INDIA & ANR. .....Respondents

Through: Mr. Nishant Gautam CGSC with Mr.

Vardhman Kaushik, Ms. Kavya

Shukla, Mr. Vineet Negi, Mr. Vibhav

V. Nath, Ms. Theresa, Advocates with

Mr. Bipul Kumar, GP for R1/UOI

Mr. Sandeep Sethi, Sr. Advocate and

Mr. Kunal Tandon, Sr. Advocate with

Mr. Kapil Arora, Ms. Aditi Tambi,

Mr. Kartik Sharma, Ms. Natasha and

Ms. Shreni Taran, Advocates for R2.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

V. KAMESWAR RAO , J. (ORAL)

1. This writ petition has been filed with the following prayers:

a) Issue a writ of certiorari or any other appropriate writ,

order or any direction of like nature thereby quashing/

setting aside the Technical Evaluation Result dated

20.02.2026 whereby the Petitioner‟s bid has been declared

“Non-Responsive”; and/or

b) Issue a writ of certiorari or any other appropriate writ,

W.P. (C) 3434/2026 Page 2 of 31

order or any direction of like nature thereby

quashing/setting aside the Financial Bid Result dated

12.03.2026, including the consequential declaration of M/s

J Infratech Limited as L-1 bidder, in so far as it excludes the

Petitioner from consideration;

c) Issue a writ of mandamus or any other appropriate writ,

order or any direction of like nature directing the

Respondent to consider the clarifications of the Petitioner

and open the Financial Bid of the Petitioner;

d) Issue a writ of mandamus or any other appropriate writ,

order or any direction of like nature thereby restraining the

Respondent from taking any further steps pursuant to the

financial bid result dated 12.03.2026, including issuance of

Letter of Acceptance, till the Petitioner‟s bid is

reconsidered;

2. The present dispute arises out of the tender invited by respondent

no.1/ Ministry of Road Transport & Highways (MoRTH) for construction of

road from 113.25 km to 160.75 km of the Huri-Taliha section of NH-913

(Frontier Highway) to Intermediate Lane on EPC mode in the State of

Arunachal Pradesh. Corrigendum was issued by the respondent no.1 on

01.09.2025 whereby clause 2.2.2.2(ii) was modified. Subsequent to which,

the petitioner submitted its bid.

3. It is the case of the petitioner as contented by Mr. Puneet Taneja,

learned Senior Advocate along with Mr. Amit Yadav that the petitioner is

aggrieved by the technical evaluation result dated 20.02.2026 whereby the

bid submitted by the petitioner has been arbitrarily declared as “Non-

Responsive” and also by the subsequent financial bid result dated

12.03.2026 wherein the petitioner has again been reflected as “Non-

Responsive” without due consideration of the clarifications submitted by the

petitioner vide emails dated 05.02.2026 and 25.02.2026. It is their case that

W.P. (C) 3434/2026 Page 3 of 31

the respondent no.1 has alleged that the petitioner does not meet the

eligibility requirement stipulated under Clause 2.2.2.2(i) & (ii) of the

Request for Proposal (RFP). However, while issuing the aforesaid technical

evaluation result, the respondent no.1 itself called upon the petitioner to

furnish response/clarifications with respect to the declaration of “Non-

Responsiveness”. In compliance to the aforesaid, the petitioner furnished

detailed replies along with supporting documents demonstrating that the

petitioner satisfies the eligibility criteria under the RFP. Even then the

respondent no.1 did not consider the aforesaid clarifications and documents

proceeded with the tender process and opened financial bids on 12.03.2026

wherein the bid of the respondent no.2 emerged as L-1.

4. As per Mr. Taneja, the petitioner satisfies the eligibility criteria under

Clause 2.2.2.2(i), which is the threshold technical capacity of

Rs.7,90,91,76,231/-. The petitioner has executed/received payment of

Rs.806.88 crores in the project Construction of Access Controlled Nagpur-

Mumbai Super Communication Expressway (Maharashtra Samrudhi

Mahamarg) in the state of Maharashtra on EPC mode for Package-11 from

502.698 km to 532.094 km (Section-Village Kokamthan to Village Derde

Korhale), District Ahmednagar (Pkg-11). He has drawn our attention to the

documents in support of the executed/receiving payment of Rs.806.88

crores.

5. According to him, Clause 2.2.2.2(ii) which stipulates either two

similar completed works costing not less than amount equal to 25% each of

estimated cost i.e. Rs.1,97,72,94,058/- or one similar completed work

costing not less than amount which equals to 35% each of estimated cost,

i.e. Rs.2,76,82,11,681/-. Mr. Taneja further argues that Clause 2.2.2.2(ii)

W.P. (C) 3434/2026 Page 4 of 31

which is the criteria of hill road wherein one similar work of atleast 5 km

length involving formation building along with hill and valley side slope

protection work. Mr. Taneja has referred to „List of eligible projects for hill

road qualification‟ as annex IVA at Page 179 of the paper book wherein he

has referred to three projects which satisfies the criteria for hill road

qualification and length executed by the bidder in the hilly area. The details

of the same are as under:

6. Upon a reading of the same it can be seen that the Petitioner had

submitted the following details :

i. Construction of Access Controlled Nagpur-Mumbai Super

Communication Expressway (Maharashtra Samruddhi Mahamarg) in

the state of Maharashtra on EPC Mode for Package-11, from km

502.698 to km 532.094 (Section-Village Kokamthan to Village Derde

W.P. (C) 3434/2026 Page 5 of 31

Korhale), District Ahmednagar.

ii. Construction of Access Controlled Nagpur-Mumbai Super

Communication Expressway (Hindu Hruday Samrat Balasaheb

Thakaray Maharashtra Samruddhi Mahamarg) in the state of

Maharashtra on EPC Mode–CP-13, from km 577+739 to km

623+3798 (Village Sonari to Village Taranganpada) in District

Nashik.

iii. Rehabilitation & Up-gradation to 2 Lane with Paved Shoulder/5

Lanning configuration of Wakan Pali Khopoli Road SH93 (New NH),

MPEW, AH47 (NH4) and NH66 (NH17) from km. 0/000 to 40/600in

the state of Maharashtra on EPC Mode.

7. Mr. Taneja has drawn our attention to the summary form which

comprises the petitioner‟s compliance submission as under:

8. The petitioner had also furnished the certificates issued by the

authorities giving details of Bill of Quantities (BOQ) items in respect of the

project i.e. Pkg-11 and Maharashtra Samrudhi Expressway (Pkg-13). The

scope of works executed include slope protection works, RCC retaining

W.P. (C) 3434/2026 Page 6 of 31

walls, etc. which constitute integral components of Hill Slope Protection

(HSP) works. This further cements the claim of the petitioner that the

requirements under Clause 2.2.2.2(i) & (ii) are met.

9. On the issue of the petitioner being declared as “Non-Responsive”

vide Technical Evaluation Result dated 20.02.2026 project code „c‟ i.e. Pkg-

13 has been considered against similar work with 5 km hill slope protection

work and project code „a‟ & „b‟ has not been considered. He contended that

the petitioner satisfies the hill road qualification in all three project works

and the requirements of the present RFP stands satisfied.

10. Concerning the issue of threshold capacity of Rs.303.14 crores,

according to Mr. Taneja, the petitioner had informed the respondent no.1

with respect to the Nagpur-Mumbai Expressway wherein it was the official

sub-contractor for the contract issued to M/s. Gayatri Projects Ltd. This

coupled with the fact that the contract agreement allows the provision of

sub-contracting. The petitioner has annexed the sub-contract agreement

along with the BOQ items demonstrating the value of the work awarded to

the tune of Rs.303.14 crores to the petitioner. This was as on 03.01.2022

relating to Chainage from 521.60 km to Chainage 532.094 km. Later on

20.06.2022 the scope was enhanced from 502.698 km to 532.094 km

whereby further work of Rs.220.41 crores has also been given to the

petitioner. Then again on 14.02.2023, the scope of work was changed

whereby further work of Rs.346.56 crores was given to the petitioner, which

brought the total value of the awarded work to the petitioner to Rs.870.11

crores. The petitioner was also given the price escalation which brought the

value of the work allotted to the petitioner to Rs.922.01 crores out of which

the petitioner had executed work of Rs.806.88 crores in the five financial

W.P. (C) 3434/2026 Page 7 of 31

years as certified by the auditors. It is his contention that the respondent no.1

has failed to consider the subsequent work orders issued in continuation of

the agreement as well as the auditor‟s certificate. All these documents were

submitted and formed part of the bid documents.

11. It is the case of Mr. Taneja that the petitioner had submitted a

representation seeking an opportunity to represent against the result of the

technical evaluation, which was done after taking note of the reasons for

declaration of Non-Responsiveness vide Technical Evaluation Result dated

20.02.2026. The said representation was accompanied with the certificate

dated 23.02.2026. The same is not a new document but rather a clarifying

certificate issued to provide more clarity and to re-affirm the fact and

credentials already forming part of the bid document. The said certificate

clearly stated that 12.398 km falls under hilly terrain and the work was

completely executed by the petitioner.

12. Mr. Taneja has contested the decision on the representation dated

05.02.2026 as being an unreasoned order. The respondent no.1 did not

consider the representation by terming the certificate dated 23.02.2026 as a

new document, without appreciating that the same clarifies and re-confirms

the information already submitted. On the issue of the Hill Road Criteria,

respondent no.1 had only considered the project code „c‟ for similar work

with 5 km HSP work under the Hill Criteria Qualification. The respondent

had also failed to consider the justification in response to the grounds of

„Non-Responsiveness‟, by stating the supporting certificate constitutes a

new document. The purpose of granting opportunity to submit a

representation is to clarify any issue that may have not been fully

appreciated by the Technical Evaluation Committee (“TEC”). If such an

W.P. (C) 3434/2026 Page 8 of 31

evaluation is disregarded then the process becomes a mere formality.

13. He stated that if the contentions of the petitioner are considered in

perspective, it is likely to emerge as L-1 bidder as such the exclusion of the

petitioner is arbitrary and unreasonable. He has relied upon a judgment of

the Supreme Court in the case of Tata Cellular v. Union of India, (1994) 6

SCC 651 to state that even though the Courts must exercise judicial restraint

in tender matters but it was also held that the decision making process

remains fully amenable to judicial review and it would be open for the Court

to review the decision maker‟s evaluation of facts. He has referred to the

executed value of the petitioner‟s projects to be Rs.806.88 crores under

project code „a‟ which alone satisfies the threshold technical capacity of

Rs.790.91 crores. He has also relied on the said judgment to argue that the

rejection of the petitioner‟s bid was on hyper-technical grounds without

independent verification and constitutes unreasonableness as per the

Wednesbury Principles.

14. Reliance is also being placed on the judgment in the case of Smt. S.R.

Venkataraman v. Union of India, (1979) 2 SCC 491 wherein it was held

that an administrative order which is based on reasons of fact which do not

exist must be held to be an abuse of power. In the present case, he stated

that not only had the petitioner demonstrated technical capacity but also

completed hill road works with slope protection and the same is

conclusively contradicted by the official certificate issued by the Project

Authority.

15. Mr. Nishant Gautam, appearing on behalf of the respondent no.1, the

MoRTH stated that MoRTH had floated a tender on 11.07.2025 for

construction of NH-913 at an estimated cost of Rs.790.92 Crores excluding

W.P. (C) 3434/2026 Page 9 of 31

Goods and Services Tax (GST). Corrigenda were issued on 01.09.2025 and

15.09.2025 modifying the clause 2.2.2.2(ii). The petitioner submitted its bid

in September 2025 claiming three works with project codes „a‟ „b‟ and „c‟

against eligible clauses 2.2.2.2(i) and 2.2.2.2(ii). The bidder sought

clarifications as to how the qualification criteria required as per clauses

2.2.2.2(i) and 2.2.2.2(ii) and the reply of the bidder dated 05.02.2026 was

deliberated upon by the Committee in its meeting dated 12.02.2026. On

20.02.2026 the TEC declared the petitioner „non-responsive‟ on two

independent grounds. After which the petitioner was granted seven days‟ to

represent and the said opportunity was availed by email dated 25.02.2026.

After giving due consideration to the representation MoRTH maintained its

stand on its finding that the petitioner‟s bid is non-responsive. It was then

the financial bids were opened on 12.03.2026 wherein the respondent no.2

emerged as L1.

16. Mr. Gautam stated that two grounds on which the petitioner bid was

declared non-responsive are both related to clauses 2.2.2.2(i) and 2.2.2.2(ii).

Ground 1 pertains to non-compliance of similar work criteria under clauses

2.2.2.2(ii), which when read with corrigendum dated 15.09.2025, the bidder

was required to demonstrate:-

a) Value threshold of one similar work equal or greater than

Rs.272.82 Crores or two similar work equal or greater than

Rs.197.73 Crores each; and

b) HSP (retaining wall/breast wall/gabion wall/Hydro seeding/soil

nailing /rock anchor) in a total length of 5 km in the said similar

work, i.e. within the very same work satisfying the value threshold.

Each similar work needed to comply with 5 km HSP works.

W.P. (C) 3434/2026 Page 10 of 31

17. It is his contention that both works were conjunctive. The phrase „the

said similar work‟ for any cross-project aggregation of the 5 km HSP

requirement. The following table sets out the three projects submitted by the

petitioner and the reason why each of them failed to meet the prescribed

criteria:-

Project Work Completed value Why it falls

“a” Maharashtra Samruddhi

Expressway Package-11

(MSRDC)

Rs.749.03 Cr Original Certificate:

Retaining Wall only

0.87 km (< 5 km).

Earthwork in

banking ≠ HSP.

Altered certificate

submitted post bid-

date — inadmissible.

“b” Wakan-Pali-Kholpoli

Road, NH-548A

Rs.98.62 Cr Certificate silent on

HSP — fails 5 km

condition outright,

irrespective of value.

“c” Maharashtra Samruddhi

Expressway Pkg-13

(MSRDC)

Rs.113.27 Cr 5 km HSP met — but

value far below

Rs.197.73 Cr / Rs.

272.82 Cr threshold.

Failed value

condition.

18. As per Mr Gautam, project code „a‟ the original certificate of MSRDC

dated 15.09.2025 as submitted in original bid, records that the slope

protection by earth work in banking is 54.49 km and retaining wall is 0.87

km. The retaining wall was only the component that could qualify as HSP

and at 0.87 km it fell short of 5 km. The earth work in banking is not HSP

as it involved filling and compacting earth to form road embankment. It was

structurally distinct from HSP works (retaining wall/breast wall/gabion

wall/Hydro seeding/soil nailing /rock anchor) which protected the existing

hill slope from erosion and failure. The committee‟s exclusion of this

component was technically sound and is not perverse.

19. In the representation by email dated 25.02.2026, the petitioner had

W.P. (C) 3434/2026 Page 11 of 31

submitted a second certificate also dated 15.09.2025 with two unexplained

alternations being the deletion of “earthwork in banking” and alternation of

the retaining wall component from 0.87 km to 8.70 km which is a ten fold

increase by transposition of digits. This document was not part of the

original bid and materially contradicted it. According to him, the law in this

regard, is well settled, that post bid date documents could not cure eligibility

deficiencies and documents contradicting original bid documents could not

be considered. As such, no project submitted by the petitioner satisfied both

the value and HSP requirement of clause 2.2.2.2(ii). Accordingly, the

declaration of non-responsiveness was fully justified.

20. The next objection taken by MoRTH as contended by Mr. Gautam, is

on the ground of non-compliance of threshold technical capacity clause

2.2.2.2(i). The said clause stipulates that the receipts from five eligible

projects are required in the last five financial years which exceed the

threshold technical capacity of Rs.790.92 Crores. In sub contracting cases,

clause 2.2.2.5(iv) restricted the value of the claimable amount to the

„approved sub-contract value‟ as approved by the authority which is the

Government client. Project „a‟ which is a sub-contract under M/s.Gayatri

Projects Limited, the petitioner executed project and claimed receipts of

Rs.806.88 Crores from this project whereas the sub-contract agreement

between client/MSRDC, M/s.Gayatri Projects Limited, and the petitioner

recorded a sub-contract value of only Rs.303.14 Crores.

21. As per Mr.Gutam, clause 2.2.2.5(iv) mandated a proof of the

authority‟s approval of the sub contract, i.e. approval from MSRDC and not

merely an inter se agreement between the private parties. No such document

from MSRDC was included in the original bid and the petitioner submitted a

W.P. (C) 3434/2026 Page 12 of 31

purported MSRDC approval dated 23.02.2026 only at the representation

stage, which is post dated the bid and could not be considered. The

consequences, which followed under clause 2.2.2.5(iv) stated that since no

authority approval was furnished as part of the original bid the receipts

claimed by the petitioner from project code „a‟ were required to be restricted

to the sub-contract value of Rs.303.14 Crores, for which legal document was

present. On that basis, the petitioner‟s aggregate technical capacity fell short

of the required Rs.790.91 Crores and even on this ground, the finding of the

non-responsiveness was also justified.

22. On the aspect of whether the representation of the petitioner was not

considered, Mr Gautam submits that both the representations dated

05.02.2026 and 25.02.2026 were fully considered by the committee before

the financial bids were opened on 12.03.2026. Non-acceptance of the

petitioner‟s submission in this case does not amount non-consideration.

23. Mr.Gautam stated that even if, one were to assume that the altered

certificate is genuine the same was submitted beyond the bid date and

materially contradicted the original bid document. Hence, only the document

which form part of the original bid are governed under the evaluation and

the petitioner cannot be permitted to improve or supplement its bid after the

bid due date.

24. It is also the submission of Mr. Gautam that since the project is

situated in a hilly terrain there was not a substitute for demonstration of

specific HSP works evidenced by a certificate from the authority. The RFP

mandated a specific, quantified and certified 5 km threshold and not a

general characterisation of the terrain in which the project was located.

Accordingly, all 15 bids, which were received for NH-913 works in the

W.P. (C) 3434/2026 Page 13 of 31

State of Arunachal Pradesh were evaluated on identical principles on

20.02.2026 and the petitioner has not in any way, been subjected to any

discriminatory treatment.

25. Mr. Sandeep Sethi and Mr. Kunal Tandon learned Senior Counsels

along with Mr. Kapil Arora and Ms. Aditi Tambi appearing for the

respondent no.2, which entity has emerged as L1 in the project tender has

supported the decision of MoRTH in declaring the petitioner as non-

responsive after having given them ample opportunity to be heard. Mr. Sethi

stated that even though clause 3.1.9 of the RFP does not require respondent

no.1 to provide any further opportunity to non-responsive bidders to submit

clarifications, once the technical evaluation result is declared, MoRTH still

provided another opportunity to the non-responsive bidders including the

petitioner vide the technical bid result. Even prior to 11.03.2026 the

petitioner had multiple opportunities to submit clarification/representation to

the respondent no.1 MoRTH.

26. Mr.Sethi has drawn our attention to clause 2.2.2.2 wherein the

technical requirement pertains to completion of 5 km of hill road and 5 km

hill and valley slide protection work in at least one similar work.

Additionally, he has also referred to the subsequent corrigenda dated

01.09.2025 and 15.09.2025 to state that the petitioner has not filed the latter

corrigendum before this Court. According to him, the petitioner purposefully

chose not to file the corrigendum dated 15.09.2025 as the same would

clearly demonstrate that the requirement under the bid was that the petitioner

should have completed of 5 km of HSP works whereas the bid submitted by

the petitioner did not fulfil this requirement.

27. The above clause and corrigenda stated that for the purpose of

W.P. (C) 3434/2026 Page 14 of 31

meeting the technical eligibility under the RFP, three conditions must be

cumulatively satisfied, which are the following:-

i) The bidder ought to have received payments of more than

Rs.790.91 Crore (threshold technical capacity) over the past

five financial years for construction of eligible construction

work by itself or in a public-private partnership project.

ii) For computation of the threshold technical capacity the bidder

must complete either of the following: a) two similar

completed work not costing less than 25% each of the

threshold technical capacity i.e. Rs.197.72 Crores; or b) one

similar completed work costing not less than 35% i.e.

Rs.276.82 Crores; and

iii) Provided that in at least one of the aforesaid similar work, the

bidder must have completed HSP works of at least 5 km.

28. According to Mr.Sethi, in cases where the bidder has acted as a sub-

contractor, then the value of the above executed civil works for the purpose

of assessing the threshold technical capacity as well as the eligibility for

similar work, must be restricted only to the extent of allowable sub

contracting limit in the original contract. Therefore, if there are any

additions or modification in the contract, same are not be considered and it

is only the value under the original contract that should be considered for the

purpose of assessing the eligibility requirement. He stated that the above

conditions pertaining to similar works are concurrent in nature and this

condition along with the threshold technical capacity are required to be

cumulatively satisfied.

29. Vide email dated 30.01.2026, respondent no.1 MoRTH sent query in

W.P. (C) 3434/2026 Page 15 of 31

relation to the technical bid submitted by the petitioner and the said query

clearly identifies that only the project code „c‟ with the completed value of

Rs.113.27 crores was considered against similar work with 5 km HSP work,

wherein notably similar work was less than 25%; whereas project code „a‟

and „b‟ do not demonstrate the completion of 5 km of HSP work.

Accordingly, the petitioner was asked to clarify how it met the criteria

clause 2.2.2.2(ii). Mr. Sethi, has referred to the petitioner‟s reply dated

05.02.2026 wherein it had admitted that the completion certificate for

project codes „a‟ and „b‟ do not explicitly state that 5 km of slope protection

is from projects executed in the hilly terrain. The petitioner had also

admitted that the original sub contract value for project code „a‟ was

Rs.303.14 Crores and had only increased in view of subsequent allotment of

additional work. It was thereafter, after having given the ample

opportunities to the petitioner that the respondent declared the petitioner as

non-responsive. Mr. Sethi, has also referred to the document titled „List of

eligible projects for hill road qualification‟ as annex IVA at Page 179 of the

paper book to state in the said document only project „c‟ has details of

relating to the length of different hill and valley protection work by the

petitioner and none of the other projects demonstrate the same. Even then,

the same does not satisfy the requirement of either 25% or 35% as per clause

2.2.2.2(ii).

30. It is the case of respondent no.2 that the petitioner while submitting

its letter dated 25.02.2026 has submitted a purported certificate from the

authority dated 23.02.2026 that the stretch of 12.398 km under project code

„a‟ falls under the hilly terrain. The said certificate is also accompanied by

another work done certificate dated 15.09.2025 which has been issued by the

W.P. (C) 3434/2026 Page 16 of 31

Nagpur-Mumbai Super Communication Express Limited (NMSCEL) to

state that there has been a slope protection work of 54.49 km and also an

RCC retaining wall of 8.7 km. He stated that the certificate dated 05.02.2026

provided by the petitioner has been substituted with another certificate

mentioning only slope protection work which was submitted along with

their 25.02.2026 representation and the RCC retaining wall figures have also

been changed from 0.87 km to 8.7 km. He stated that this ground alone is

enough to dismiss this petition.

31. In this regard, Mr. Sethi has relied upon the following judgments for

the following propositions:

a) The judgment in the case of Tata Cellular v. Union of India,

(1994) 6 SCC 651 has been referred to state that the Courts do not

possess the expertise to correct the administrative decision and the

writ Courts ought not to sit as a court of appeal, but only review

the manner in which the decision was made;

b) In Tata Motors Ltd. v. Brihan Mumbai Electric Supply &

Transport Undertaking, (2023) 19 SCC 1 the Supreme Court had

held that a writ court ought to 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 there is a patent illegality which

is pointed out;

c) As per the decision in the case of the N.G. Projects Ltd. v. Vinod

Kumar Jain, (2022) 6 SCC 127 it was held that an injunction or

interference in the tender process only leads to additional costs on

the public exchequer and is also against public interest; and

d) Lastly, he has also drawn our attention to the decision in the case

W.P. (C) 3434/2026 Page 17 of 31

of Haffkine Bio-Pharmaceutical Corporation Ltd v. Nirlac

Chemicals, (2018) 12 SCC 790 to contend that the tender issuing

authority is the best judge of its own requirements and a party

whose claim is rejected may claim restitution if its bid is

technically qualified and wrongly rejected.

32. Mr. Taneja in his rejoinder submissions in the context of Clause

2.2.2.2(i) stated that the petitioner not only placed on record merely the

initial sub-contract agreement but also the subsequent work orders dated

20.06.2022 and 14.02.2023 which formally enhanced the scope of the work

along with the authority issued certificate. The same enhanced the aggregate

executed value of the project to Rs.806.88 crores. No reasonable evaluating

authority should read the sub-contract in isolation from the subsequent work

order which form part of the same contractual framework which had

expressly enhanced this Court and value. With regard to Clause 2.2.2.2 (ii),

since the executed value of work was Rs.806.88 crores under project code

„a‟ which is nearly three times the threshold limit of Rs.276.82 crores for

similar completed work. The TEC offered no rational basis for declining to

treat the petitioner at par with other bidders at the time of bid evaluation. As

on the issue of the Hill road qualification criteria, the respondent no.1,

MoRTH had itself accepted project code „c‟ Pkg-13 as qualifying for the hill

road criteria. Once the respondent no.1 had accepted Pkg-13, they could not

have refused to extend the same recognition to Pkg-11 which is a parallel

package on the same expressway corridor in terms of the Work Done

Certificate and a detailed authority certificate also records explicitly

execution of slope protection works and RCC retaining walls for 12.398 kms

W.P. (C) 3434/2026 Page 18 of 31

of hilly terrain and the same goes against the principles laid in Tata Cellular

(supra).

33. The failure to undertake independent verification before rejecting the

official certificate as per Mr. Taneja amounts to denial of fair procedure.

The petitioner had submitted adequate documents in support of their claim

but the TEC did not consider the same and mechanically brushed them aside

the same. He stated the actions of the TEC are against the ratio laid down in

Tata Cellular (supra) and S.R. Venkataraman (supra).

34. It is also his case that the rejection of the clarificatory certificate as

being termed as a new document is an erroneous and unreasonable exercise

of power. The characterisation of the certificate dated 23.02.2026 as a „new

document‟ demonstrates the wrong committed by the TEC. The said

certificate does not introduce any new extraneous fact but merely clarifies

and formally certifies the hilly terrain and nature of the BOQ items were

already a part of the original bid document. The authority has wrongly

labelled this document as a new document and these actions are against the

principles as laid down in Tata Cellular (supra) and S.R. Venkataraman

(supra).

35. Lastly, he contended that the petitioner‟s bid as the undisputed record

is highly competitive and would have come up as the L-1 bid. The

acceptance of the higher bid while excluding the technically qualified bidder

results in an avoidable and substantial financial prejudice to the public

exchequer. In support of his arguments, he has relied upon the judgment in

the case of Tata Cellular (supra) to contend that the principles of Article 14

under the Constitution must be kept in view while refusing or accepting her

tender if the power of choice is exercised for any collateral purpose, the

W.P. (C) 3434/2026 Page 19 of 31

same must be struck down.

ANALYSIS

36. Having heard the learned counsel for the parties and perused the

record, the issue which arise for consideration in this petition is whether the

decision of the respondent no. 1 to treat the bid of the petitioner as non-

responsive is justified.

37. The TEC declared the bid of the petitioner as non-responsive in its

meeting dated 20.02.2026. The two grounds on which the petitioner‟s bid

was declared as non-responsive are: (a) non-compliance with similar work

criteria [clause 2.2.2.2(ii)] and; (b) non-compliance with threshold technical

capacity [clause 2.2.2.2(i)].

38. In respect of ground no. 1 above, the bidder is required to

demonstrate:

a. Value Threshold i.e., One similar work of more than Rs. 272.82

crores or two similar works of more than Rs. 197.73 crores each

and;

b. completion of HSP in a total length of 5 kms in the said similar

work i.e., within very same work satisfying the value threshold.

Each similar work is needed to comply with 5 km HSP.

39. The case of the respondent no. 1 as canvassed by Mr. Gautam is that

both the conditions are conjunctive. The case of the respondents is also that

the petitioner has failed to meet the criteria in respect of any of the three

projects relied as upon by the petitioner.

W.P. (C) 3434/2026 Page 20 of 31

i. Project a Original retaining wall only 0.87 km (less

than 5 km)

The petitioner submitted altered certificate,

which is inadmissible.

ii. Project b Certificate silent on HSP – fails 5 km

condition.

iii. Project c 5 km HSP met – but the value far below Rs.

197.73 crores / Rs. 272.82 crores threshold.

40. Insofar as the ground (ii) of non-compliance with the threshold

technical capacity is concerned, the case of the respondent no. 1 is that as

per clause 2.2.2.2(i), the receipts from eligible projects in the last five

financial years exceeds the threshold technical capacity of Rs. 790.91 crores.

It is their case that in sub-contracting cases clause 2.2.2.5(iv) restricted the

claimable amount to the “approved sub-contract value” as approved by the

authority.

41. It is also their case that the petitioner relied upon project (a)

Maharastra Samruddhi Expressway Package-11 wherein it was the sub-

contractor to M/s. Gayatri Projects Limited, which was prime contractor

with MSRDC. The petitioner claimed receipts of Rs. 806.88 crores from this

project whereas the petitioner recorded the sub-contract value of only Rs.

303.14 crores as against the requirement of Rs. 790.91 crores. The case of

the respondent no. 1 is also by stating that only documents forming part of

the original bid shall govern the evaluation.

42. Whereas Mr. Taneja‟s submission is that the respondent no. 1 itself

had called upon the petitioner to furnish response/clarification on the aspect

of non-responsiveness. It is in compliance thereof that the petitioner

furnished detailed replies and documents, which according to him were not

W.P. (C) 3434/2026 Page 21 of 31

considered and the respondent no. 1 proceeded with the tender process and

opened the financial bids. Having noted the above submission of Mr.

Taneja, we are of the view that the issue of non-responsiveness has to be

considered and decided on the basis of the bid and the clarification given by

the petitioner along with the documents submitted along with the bid.

43. On the aspect of eligibility criteria under clause 2.2.2.2(i), which is a

threshold technical capacity of Rs. 790,91,76,231/-, the case of the petitioner

as canvassed by Mr. Taneja is that the petitioner has executed/received

payment of Rs. 806.88 crores in the project „a‟ above. According to him, the

sub-contract was initially for Rs. 303.14 crores, which contract was

enhanced by Rs. 220.41 crores (on 20.06.2022) and further enhanced by Rs.

346.56 crores (on 14.02.2023) and hence meet the criteria. The aforesaid

submission of Mr. Taneja is not at all appealing. This we say so because of

clauses 2.2.2.2(i) and 2.2.2.2(ii) which are reproduced hereunder:-

“(i) For demonstrating technical capacity and experience

(the “Technical Capacity”), the Bidder shall, over the past

[5 (five)]financial years preceding the Bid Due Date, have

received payments for construction of Eligible Project(s), or

has undertaken construction works by itself in a PPP

project, such that the sum total thereof, as further adjusted

in accordance with clause 2.2.2.5 (i) & (ii), is more than the

“Threshold Technical Capacity” mentioned as below:

Particular Amount (in Rs.) in Words

Threshold

Technical

Capacity

₹7,90,91,76,231 Seven Hundred Ninety

Crore Ninety One Lakh

Seventy Six Thousand Two

Hundred Thirty One

(ii) For normal Highway projects (including Major

Bridges/ROB/Flyovers/Tunnels):

W.P. (C) 3434/2026 Page 22 of 31

Provided that at least either of the following:

(i) Two similar completed works costing not less than

amount equal to 25% each of estimated cost.

or

(ii) One similar completed work costing not less than

amount equals to 35% each of estimated cost

[Similar work cost as in table below] shall have been

completed from the Eligible Projects in Category 1 and/or

Category 3 specified in Clause 2.2.2.5. Certificate(s) from

the concerned client(s) shall be required for the same. In

case the claimed project /(s) are subcontracting/ JV project

in such a case Approval from Govt. Authority / Client is

required (restricted to allowable sub-contracting limit/ JV

share in original contract).

For this purpose, a project shall be considered to be

completed, if more than 90% of the value of work has been

completed and such completed value of work is equal to or

more than the abovementioned criteria in the last 5 (five)

financial years preceding the Bid Due Date or till the Bid

Due Date. Eligible projects shall include following:

(a) Widening/reconstruction/up-gradation works on

NH/SH/Expressway or on any category of road taken up

under CRF, ISC/El, SARDP, LWE

(b) Widening/reconstruction/up-gradation works on MDRs

with loan assistance from multilateral agencies or on BOT

basis

(c) Widening/reconstruction/up-gradation work of roads in

Municipal corporation limits, construction of Bypasses

(d) Construction of stand-alone bridges, ROBs, tunnels

(e) Construction/reconstruction of linear projects like

airport runways

W.P. (C) 3434/2026 Page 23 of 31

(f) Viaducts of Railways/Metro

(g) Container yard of ports

Particulars Amount (in Rs.) In Words

Two Similar

Work each

costing

₹ 1,97,72,94.058 One Hundred Ninety

Seven Crore Seventy

Two Lakh Ninety

Four Thousand Fifty

Eight

One Similar

work costing

₹ 2,76,82,11,681 Two Hundred

Seventy Six Crore

Eighty Two Lakh

Eleven Thousand

Six Hundred Eighty

One

Provided further that at least 1 similar work shall have been

completed from eligible projects in Category 1 and/or

Category 3 specified in clause 2.2.2.5 that involved

construction of hill road in at least 5 km length having 2

lane carriageway configurations. For this purpose, the work

of formation building along with hill and valley side slope

protection work shall have been completed in 5 km length.

The details of project(s) clamed under Hill Road Criteria

shall be furnished as per Annexure-IVA of Appendix IA.

If any Major Bridge/ROB/Flyover/Tunnel is (are) part of the

project, then the Bidder shall necessarily demonstrate

additional experience in construction of Major

Bridge/ROBs/Flyovers/Tunnel in the last 7 (Seven) financial

years preceding the Bid Due Date or till the Bid Due Date.

i.e. shall have completed at least one similar Major

Bridge/ROB/Flyover/Tunnel of following sizes:

(a) In case, longest span of Bridge/ROB/flyover is less than

or equal to 60 m, no additional qualification is required

(b) When longest span is more than 60 m: 80% of the

W.P. (C) 3434/2026 Page 24 of 31

longest span or 100 m, whichever is less, of the structure

proposed in this project and 40% of the length of Major

bridge/ROB/Flyover or 2km, whichever is less, of the

structure proposed in this project.

And in case of tunnel, if any, shall have completed

construction of at least one tunnel consisting of single or

twin tubes (including tunnel(s) for roads/Railway/Metro

rail/irrigation/hydro-electric projects etc.) having at least

(a) In case Tunnel is a part of project having length less

than or equal to 200 m, then no additional qualification is

required.

(b) when length of tunnel more than 200 m: 80% of the

cross-sectional area of proposed tunnel or two-lane

highway tunnel cross-sectional area, whichever is less and

40% length of the tunnel to be constructed (other than cut

and cover method) in this project or 2 km, whichever is

less.”

(emphasis supplied)

44. The aforesaid contemplates the claimed project, if sub-contracted, the

approval from the client/Government authority is required (restricted to

allowable sub-contracting limit). In the case in hand, the sub-contract as

given to the petitioner by M/s. Gayatri Projects Limited, which was

approved by MSRDC was worth Rs. 303.14 crores and nothing more. The

enhanced sub-contracts of Rs. 220.41 croes and Rs. 346.56 crores granted to

the petitioner were not expressly approved by MSRDC and in this regard,

we agree with the submission of Mr. Gautam and Mr. Sethi that clause

2.2.2.5(iv) mandated a proof of the authority‟s approval of sub-contract i.e.,

approval from MSRDC (in this case) and not merely an inter se agreement

between the private parties. Mr. Gautam and Mr. Sethi are also right in

contending that no document has been filed by the petitioner on record in

that regard. So, it follows that the eligibility must be restricted only to the

W.P. (C) 3434/2026 Page 25 of 31

original sub-contract agreement, which is admittedly of the value of Rs.

303.14 crores.

45. Since, the petitioner has failed to satisfy the mandatory criteria of

clause 2.2.2.2(i), its bid could not have proceeded to the evaluation under

clause 2.2.2.2(ii), however, since the respondent no. 1 has disqualified the

petitioner on this ground as well, we have examined the legality of the rival

submissions.

46. That apart Mr. Gautam and Mr. Sethi are also justified in stating that

apart from the aforesaid threshold technical capacity, the bidder has also to

show completion of either of the following similar works:-

a. two similar completed works costing not less than 25% each of

the threshold technical capacity i.e. Rs. 197.72 crores (approx.)

each or;

b. one similarly completed work consisting not less than 35 % of

the threshold technical capacity i.e. Rs. 276.82 crores.

47. In the present case, the completed projects (b) and (c) relied upon by

the petitioner admittedly fail to satisfy the aforesaid criteria as they are ex-

facie less than Rs. 197.72 crores and therefore cannot be considered as

similar work. This leaves the petitioner with only one completed project (a)

for establishing eligibility. However, the completed project (a) relied upon

by the petitioner fails to fulfil clause 2.2.2.2(ii) on the similar work criteria

as this project does not fulfil the requirement of completion of 5 km hill road

and valleys side slope protection work, as discussed hereunder.

48. Now, coming to the eligibility of completing the hill slope protection

in a total length of 5 km within the same work is concerned, the clause

2.2.2.2(ii) contemplates hill and valley side slope protection work has been

W.P. (C) 3434/2026 Page 26 of 31

completed in 5 km length. The requirement pertaining to completion of 5 km

hill road and valley side slope protection work is atleast one similar work

was modified by way of corrigendum dated 01.09.2025 and later by another

corrigendum dated 15.09.2025. The corrigendum dated 15.09.2025 reads as

under:-

“Slope protection works viz. retaining wall/breast

wall/gabion wall/hydro seedings/soil nailing/rock anchor or

any other slope protection work shall have been completed

in a total length of 5 km in the said similar work” at para

2.2.2.2 (ii) may be read as “Hill Slope protection works viz.

retaining wall/gabion wall/hydro seeding/ soil nailing/ rock

anchor or any other slope protection works shall have been

completed in a total length of 5 km in the said similar

work.”

49. The above shows requirement under the bid was that the petitioner

should have completed 5 km hill slope protection work, which requirement

has not been fulfilled by the petitioner.

50. We agree with the submission of Mr. Gautam and Mr. Sethi that RFP

mandated a specified quantified and certified, 5 km threshold and not a

general characterisation of terrain in which the project was located. Even

Mr. Sethi, by drawing our attention to clause 2.2.2.2 would highlight that the

technical requirement pertains to 5 km of hill road and hill and valley slide

protection work in atleast one similar work. From the aforesaid table at

paragraph 17 above, it is clear that insofar as project code „a‟ is concerned,

the retaining wall is only 0.87 km as submitted with the original bid.

51. The project code „a‟ record slope protection by earth work in banking

as 54.49 km. According to Mr. Gautam, the retaining wall was only the

component that could qualify as HSP and at 0.87 km it falls short of 5 km.

W.P. (C) 3434/2026 Page 27 of 31

According to him, the earth work in banking is not HSP as it involves filling

and compacting earth to form road embankments. In other words, it is

structurally distinct from HSP work, which protects the existing hill slope

from erosion and failure. It may be stated that the petitioner had submitted a

second certificate dated 15.09.2025, which according to Mr. Gautam

contained unexplained alterations being the deletion of (earth work in

banking) and alteration of retaining wall component from 0.87 km to 8.70

km, which is a tenfold increase by transposition of digits. According to him,

this document, which the petitioner had produced was not part of the

original bid and materially contradicted it. We agree with the submission

that law in this regard is well settled that post bid date documents cannot

cure eligibility, deficiencies and documents contradicting original bid

documents as such could not be considered. The plea of Mr. Taneja that

clarifications were sought would not mean that very documents filed along

with the bid are sought to be replaced by new documents. The clarification

must necessarily be read in a manner that clarifications sought are in respect

of documents which had already been filed. We hereunder reproduce both

the documents which were produced by the petitioner along with the bid and

later as certificate dated 15.02.2026:

W.P. (C) 3434/2026 Page 28 of 31

W.P. (C) 3434/2026 Page 29 of 31

52. The contradictions in the certificate pertaining to project (a) with

respect to the area of retaining wall, makes it a sufficient ground for the

tendering authority to not rely upon these certificates.

53. The respondent no. 1 has explained that project (c) though meets the 5

km hill slope protection work criteria, however, since the value of the said

project was Rs. 113.27 crores it fails to meet the minimum threshold criteria

of Rs. 197.73 crores or Rs. 272.82 crores (as applicable) set out in clause

2.2.2.2(ii). The petitioner has been unable to rebut the said submissions. We

are of the considered opinion that the tendering authority‟s interpretation

W.P. (C) 3434/2026 Page 30 of 31

that value of similar work has to be Rs. 197.73 crores or Rs. 272.82 crores is

in-conformity with the tender conditions and therefore project (c) has been

rightly held to be ineligible for qualification.

54. One of the pleas of Mr. Taneja was that respondent no. 1 has without

considering the representation of the petitioner dated 25.02.2026 has

proceeded to open the tender whereas the case of respondent no. 1 as

canvassed by Mr. Gautam is that the said representation was considered

along with representation dated 05.02.2026 by the TEC before financial bids

were opened on 12.03.2026. We agree with the said submission, as

according to Mr. Gautam, the financial bids were opened on 12.03.2026,

which is surely much after the representation dated 15.02.2026 was

submitted and in any case, Mr. Taneja has not contradicted the submission

made by Mr. Gautam that the representation was decided before the

financial bids were opened. So, this plea of Mr. Taneja is also unmerited.

55. Mr. Taneja has relied upon two judgments in the case, which are one

in the case of Tata Cellular (supra) and S.R. Venkataraman (supra), of

which the former has also been relied on by Mr. Sethi. However, we must

accept the argument as advanced by Mr. Sethi that it is held in Tata Cellular

(supra) that writ Courts should not sit as a court of appeal but only act as a

reviewing authority overseeing the manner in which a decision is made. Mr.

Taneja has argued that although Courts must exercise judicial restraint in

tender matters but the decision making process is amenable to judicial

review. However, in the facts of this case, we do not find it fit to exercise the

said power of judicial review as respondent no.1 is justified in the manner it

has made the decision, treating the bid of the petitioner “non-responsive”.

56. Insofar as the judgment in the case of S.R. Venkataraman (supra)

W.P. (C) 3434/2026 Page 31 of 31

wherein it was held that an order which is based on non-existent facts must

be seen as an abuse of power is concerned, the said judgment has no

applicability in the facts of this case and also in view of our findings above.

57. Before parting with the case, we must also add that Mr. Sethi and Mr.

Tandon are justified in relying upon the judgments in the cases of Tata

Motors Ltd. (Supra), N.G. Projects Ltd. (Supra) and Haffkine Bio-

Pharmaceutical Corporation Ltd. (Supra) wherein the Supreme Court has

consistently held that Courts must practise great restraint in tender matters

before exercising their powers under Article 226 of the Constitution and

must not sit as a court of appeal to supplant its own decision over the

Tendering authority and the same only leads to delay and costs borne by the

public exchequer. Furthermore, it is clear that the tender issuing authority

has been held to be the best judge of its own requirement.

58. In view of our reasoning above, this petition is dismissed as being

devoid of merit along with the pending application which is dismissed as

having become infructuous.

V. KAMESWAR RAO , J

MANMEET PRITAM SINGH ARORA, J

APRIL 06, 2026/sr