W.P.(C) 3885/2026 Page 1 of 37

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 05.05.2026

Judgment pronounced on: 29.05.2026

Judgment Uploaded on: 29.05.2026

+ W.P.(C) 3885/2026, CM APPL. 19062/2026, CM APPL.

20206/2026, CM APPL. 21085/2026 & CM APPL. 24254/2026

S AND P INFRASTRUCTURE DEVELOPERS PVT LTD

.....Petitioner

Through: Mr. Gaurav Chopra, Sr. Adv.

along with Ms. Anusuya

Salwan, Mr. Jatin Bansal, Mr.

Divyam Suri, Mr. Afaq

Sherwani, Mr. Shantanu

Mishra, Mr. Jagrit Vyas and

Mr. Himanshu Bindal, Advs.

versus

NATIONAL HIGHWAYS AUTHORITY OF INDIA

....Respondent

Through: Mr. Sanjay Jain Sr. Adv.Along

with Mr. Santosh Kumar,

Standing Counsel, Mr. Ritik

Dwivedi, Mr. Devansh

Malhotra, Mr. Adithya Ramani,

Mr. Nishank Tripathi, Ms.

Harshita Sukhija, Ms. Rishika

Agrawal and Ms. Priya Tyagi,

Advs. for R-1.

Mr. Dayan Krishnan, Sr. Adv.

along with Mr. Sanjeev K.

Kapoor, Mr. Dhritiman Roy,

Ms. Sania Abbasi and Mr.

Shreedhar Kale, Advs. for R-2.

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE AMIT MAHAJAN

W.P.(C) 3885/2026 Page 2 of 37

J U D G M E N T

AMIT MAHAJAN, J.:

1. The present Petition has been filed under Article 226 of the

Constitution of India, seeking the following prayers:

a. Issue appropriate writ, order or directions in the nature of

certiorari quashing the order dated 23.03.2026 passed by the

Respondent rejecting the technical bid of the petitioner as non-

responsive.

b. Issue appropriate writ, order or direction in the nature of

Mandamus directing the Respondent to declare petitioner as

technically qualified, and

c. Issue appropriate writ, order or direction in the nature of

mandamus directing the Respondent to open and consider the

financial bid of the petitioner.

FACTUAL MATRIX

2. Respondent No.1, NHAI vide Request for Proposal (‘RFP’)

dated 12.12.2025 invited bids for the work of Upgradation of existing

highway to two lanes with paved shoulders from Parsarma to Araria

Section of NH-327E on Hybrid Annuity Mode in the state of Bihar on

design, build, operate and transfer basis.In terms of the RFP, the bid

was invited in a two-bid system for selection of the bidder for award

of the project. Under the process, eligibility and qualification of the

bidder was to be first examined based on the details submitted under

the first part (Technical Bid) with respect to the eligibility and

qualification criteria prescribed in the RFP. The financial bid under

the second part shall be opened for the bidders whose technical bids

are responsive to eligibility and qualification requirements as per the

RFP.

W.P.(C) 3885/2026 Page 3 of 37

3. The Petitioner submitted their bid document to Respondent

No.1 on 12.03.2026. In the said bid document, the Petitioner

submitted the Net Worth Certificate of its Associate (Ms. Krishna

Pandey) as on 27.12.2025, certified/authorised by its Statutory

Auditor.

4. Thereafter, on 17.03.2026, Respondent No.1 sent a letter to the

Petitioner seeking certain clarifications including a clarification

regarding the Net Worth of the Associate of the Petitioner, namely,

Ms. Krishna Pandey. Respondent No.1 asked for a clarification

regarding why the Net Worth of the Associate of the Petitioner had

been provided as on 27.12.2025 in the Petitioner’s bid, when the RFP

required the Petitioner to provide the same as on 31.03.2025. The

relevant extract of the said letter is reproduced herein below:

10. Net

Worth

The bidder has submitted the Net Worth of the

Ms. Krishna Pandey as on 27.12.2025 instead

of as on 31.03.2025. Bidder to clarify why the

Net Worth of the Associate has been provided as

on 27.12.2025 instead of 31.03.2025

5. Pursuant the same, the Petitioner submitted clarifications to

Respondent No. 1 on 19.03.2026. In reply to the clarification sought

pertaining to the Net Worth of the Associate of the Petitioner/ Ms.

Krishna Pandey the Petitioner submitted as under:

“The Authority is requested to refer page 108-110 of pdf file

named '3Technica1BidParsarmaArariaPart1' submitted with the

Bid documents. Wherein Net Worth Certificate of Ms. Krishna

Pandey have been issued by Statutory Auditor on 21.08.2025

based on (1) Market value of immovable properties has been

taken on the basis of valuation certificate issued by an Approved

Valuer /Chartered Engineer, and (2) investments in equity shares

W.P.(C) 3885/2026 Page 4 of 37

have been considered at book value of shares as per audited

financial statements as on 31.03.2024.

Therefore, the Net Worth certificate of the Ms. Krishna Pandey

have been issued as per procedures. The same Net Worth is

applicable as on 31.03.2025 as well as on Bid due date.”

6. On 23.03.2026, Respondent No.1 issued a communication

addressing all participating bidders, including the Petitioner, whereby

the technical bid of the Petitioner was held to be ‘non responsive’ on

the ground that the “Assessed Available Net Worth of the Petitioner at

the close of the preceding financial year (FY 2024-25) is less than the

minimum requirement of ₹152.25 Cr. as per clause 2.2.2 (BB) of the

RFP Document.”

7. The Petitioner filed a representation dated 24.03.2026 with

Respondent No.1 vide letter No. S&P/Tender/2025-26/342. The

Petitioner in its representation asserted that its Assessed Available Net

Worth was ₹244.38 Cr., which was well above the minimum

requirement of ₹152.25 Cr.

8. The Petitioner in the aforesaid representation also explained

why it had not earlier submitted the Net Worth of this Associate as on

31.03.2025, while also submitted that it was ready to provide the same

at that juncture, the reasons provided by the Petitioner are as under:

“It is to submit that, the concept of Assessed Available Net Worth

of the bidder was published by the Authority vide circular no.

11.68/2025 dated 6th August, 2025. Earlier there was no

requirement of the same. Therefore, viewing the situation the

Bidder started the practice of taking Net Worth of Associate in

account. However, this Net Worth was available with the Associate

from long time as also was available at close Financial Year 2024-

25. Therefore, the Net Worth of the Associate shall be taken in to

account. it is also to be submitted at Authority is requested to refer

clause 2.1. 18, wherein, nothing is written about the timing of

availability of Net Worth of the Associate. However, the valuation

W.P.(C) 3885/2026 Page 5 of 37

of the assets of the Associate were got conducted after Authority

circular no. 11.68/2025 dated 6th August, 2026. Therefore, the

valuation reports of the Assets of the Associate are also valid as on

close of preceding financial year (FY 2024-25). It is also to submit

that, if the Authority fee ls that, Net Worth of 31.03.2025, then we

are ready to provide the same at the direction of Authority.”

9. Thereafter, the Petitioner vide Letter No. S&P/Tender/2025-

26/343 dated 24.03.2026 submitted a certificate from the Statutory

Auditor of the Petitioner which provided the net worth of the associate

of the Petitioner (Ms. Krishna Pandey) as ₹192.36 Cr as on

31.03.2025.

10. The Petitioner approached this Court assailing the letter dated

23.03.2026 and this Court vide order dated 25.03.2026 directed

Respondent No.1 to not open the financial bids of the subject tender

till the representation of the Petitioner was decided.

11. Respondent No.1, while deciding the Petitioner’s representation

vide communication dated 27.03.2026, observed that although the

Petitioner had furnished valuation reports dated 18.08.2025 in respect

of the immovable properties of Ms. Krishna Pandey, the said reports

nowhere specified that the valuation had been undertaken as on

31.03.2025. Respondent No.1, therefore, treated the valuation as

pertaining to the date of issuance of the reports itself, namely

18.08.2025, and consequently excluded the immovable properties

from consideration while computing the net worth of the Associate.

Respondent No.1 also considered the subsequent Chartered

Accountant’s Certificate dated 24.03.2026, but declined to place

reliance upon the same observing that it was unsupported by any

W.P.(C) 3885/2026 Page 6 of 37

contemporaneous valuation documents establishing the value of the

immovable properties as on 31.03.2025.

12. Respondent No.1 in the aforesaid letter calculated the Assessed

Available Net worth of the Petitioner as ₹121.72 Cr., which was less

than the minimum requirement of Clause 2.2.2. (BB) of the RFP

Document, i.e. ₹152.25 Cr and accordingly decided the bid of the

Petitioner to be Technically Non-Responsive.

13. In response thereto, the Petitioner, vide email dated 28.03.2026,

disputed the computation of the balance value of ongoing PPP works

undertaken by Respondent No.1 and contended that Respondent No.1

had incorrectly assessed the value of completed work in respect of

Projects 1, 2 and 3 by considering only the amounts of MoRTH grant

certified and paid, while ignoring the actual physical and financial

progress already achieved in the projects. The Petitioner further

asserted that the EPC costs adopted by it for the respective projects

were in accordance with the financing documents and were exclusive

of escalation, GST, and other financing components, and therefore

maintained that the “B” value originally submitted by it was correct

and that the calculations undertaken by Respondent No.1 were

erroneous.

14. Thereafter, Respondent No.1, vide communication dated

28.03.2026 issued in response to the Petitioner’s objections regarding

computation of Component “B”, stated that the evaluation had been

undertaken strictly on the basis of the documents furnished along with

the bid and the financial progress reflected therein. Respondent No.1

clarified that, in terms of the MoRTH Circular dated 06.11.2025, the

W.P.(C) 3885/2026 Page 7 of 37

“Estimated Project Cost” included EPC cost, pre-operative expenses,

financing and legal costs, and interest during construction, and

accordingly recalculated the Petitioner’s existing commitments on the

basis of the financing agreements and bid documents on record.

Respondent No.1 further stated that even upon reconsidering the

Petitioner’s contention regarding the percentage of project progress,

the assessed available net worth of the Petitioner worked out to

₹148.812 crores, which remained below the minimum threshold of

₹152.25 crores prescribed under Clause 2.2.2(BB) of the RFP, and

consequently maintained the Petitioner’s status as “Technically Non-

Responsive”.

15. Respondent No.1 proceeded further with the subject tender and

awarded the letter of award dated 30.03.2026 to M/s Dineshchandra

R. Agrawal InfraconPvt. Ltd. This Court vide order dated 22.04.2026

allowed the impleadment application filed by the Petitioner and M/s

Dineshchandra R. Agrawal InfraconPvt. Ltd. was impleaded in the

present case as Respondent No.2. It was also noted in the said order

that the financial bid of the Petitioner was lower than the bid of M/s

Dineshchandra R. Agrawal InfraconPvt. Ltd.

SUBMISSIONS ON BEHALF OF THE PETITIONER

16. Learned Senior Counsel appearing for the Petitioner submitted

that the rejection of the Petitioner’s technical bid by Respondent No.1

was wholly arbitrary and based upon an erroneous determination that

the Petitioner failed to satisfy the minimum net worth requirement

under Clause 2.2.2 of the RFP, despite the Petitioner’s assessed

W.P.(C) 3885/2026 Page 8 of 37

available net worth being above the prescribed threshold of ₹152.25

crores.

17. He submitted that Respondent No.1 arbitrarily excluded 20

immovable properties of the Petitioner’s Associate, Ms. Krishna

Pandey, valued at ₹87.48 crores, solely on the ground that the

valuation reports and auditor’s certificates did not expressly mention

the date 31.03.2025. It was contended that Clause 2.2.2(B) merely

prescribes the reference date for assessing net worth and does not

mandate that the valuation report itself must be issued on that date.

18. He submitted that the Associate’s net worth as on 31.03.2025

stood duly certified by the statutory auditor vide certificate dated

27.12.2025 on the basis of valuation reports dated 18.08.2025 issued

by an approved valuer. Upon Respondent No.1 raising objections

regarding the valuation date, the statutory auditor issued a clarificatory

certificate dated 24.03.2026 reaffirming the net worth position as on

31.03.2025, and the approved valuer thereafter issued a clarification

dated 26.03.2026 specifically stating that the valuation had been

undertaken with reference to prevailing market rates as on 31.03.2025.

19. He further submitted that the RFP prescribed no separate

methodology for determination of the net worth of an Associate, and

therefore valuation of immovable properties by an approved valuer,

duly certified by the statutory auditor, constituted a valid method of

assessment. It was submitted that Respondent No.1 never disputed

either the existence or ownership of the immovable properties, all of

which had been acquired prior to 31.03.2025 through registered sale

deeds.

W.P.(C) 3885/2026 Page 9 of 37

20. It was contended that Respondent No.1 arbitrarily accepted only

the liquid assets of the Associate amounting to ₹16.63 crores while

excluding immovable assets worth ₹87.48 crores, despite the RFP

drawing no distinction between liquid and immovable assets for the

purpose of assessing net worth. Learned Senior Counsel submitted

that the subsequent certificates dated 24.03.2026 and 26.03.2026 did

not introduce any new assets, but merely clarified the valuation date of

the very same properties already disclosed in the original bid

documents.

21. He further submitted that the RFP itself contemplated post-bid

clarifications and updating of the assessed available net worth prior to

opening of financial bids, and therefore Respondent No.1 could not

reject the clarificatory documents on a hyper-technical basis. It was

submitted that the Petitioner’s detailed reply dated 19.03.2026 to

Respondent No.1’s query dated 17.03.2026 was never genuinely

considered, as the impugned rejection order dated 23.03.2026 neither

referred to the said clarifications nor disclosed any reasons or

calculations forming the basis of rejection.

22. Learned Senior Counsel further submitted that Respondent

No.1 repeatedly altered the Petitioner’s net worth assessment after

rejection of the technical bid, thereby exposing the arbitrary and

unreliable nature of the evaluation process. While the order dated

27.03.2026 reflected the Petitioner’s assessed available net worth as

₹121.72 crores, the same was revised within a day to ₹148.81 crores.

Likewise, the “B” value was altered from ₹1082.95 crores to ₹947.49

crores, with Respondent No.1 itself admitting in its Counter Affidavit

W.P.(C) 3885/2026 Page 10 of 37

that certain errors in the earlier computation had “inadvertently” gone

undetected. It was submitted that no material or calculation supporting

the original rejection dated 23.03.2026 had been placed on record, and

the subsequent re-evaluation itself rendered the impugned decision

unsustainable.

23. It was further submitted that no objection regarding the

Petitioner’s computation of the “B” value or Estimated Project Cost

had been raised during the original evaluation process and that the

same was introduced only subsequently during the pendency of the

present proceedings.

24. It was contended that Respondent No.1 acted contrary to Clause

2.2.2(BB) of the RFP by relying upon the MoRTH Circular dated

06.11.2025, despite the same never having been incorporated into the

RFP through any corrigendum. Learned Senior Counsel submitted that

under the RFP, the “Estimated Project Cost” referred only to the EPC

cost reflected in the approved financing documents and did not

include financing costs, interest during construction, or pre-operative

expenses.

25. He submitted that Respondent No.1, by relying upon the

aforesaid circular, altered the methodology for computation of

Component “B” by including financing liabilities and other additional

costs within the Estimated Project Cost, thereby artificially inflating

the “B” component and correspondingly reducing the Petitioner’s

assessed available net worth below the prescribed threshold. It was

submitted that the revised methodology was never disclosed in the

W.P.(C) 3885/2026 Page 11 of 37

tender conditions and was introduced subsequently only to justify the

Petitioner’s disqualification.

26. It was further submitted that even on the basis of Respondent

No.1’s revised computation of Component “B”, the Petitioner would

satisfy the prescribed threshold once the correct value of Component

“A” was considered. Applying the formula prescribed under the RFP,

the Petitioner’s assessed available net worth would amount to ₹237.23

crores, which is substantially above the minimum requirement of

₹152.25 crores.

27. Lastly, it was submitted that during the pendency of the present

petition, Respondent No.1 proceeded with undue haste to issue the

Letter of Award dated 30.03.2026 in favour of the sole remaining

bidder, M/s Dineshchandra R. Agrawal InfraconPvt. Ltd.,

immediately after opening of the financial bids, with the apparent

intent of creating a fait accompli and frustrating the Petitioner’s right

to an effective remedy. It was submitted that only two bidders had

participated in the tender process and the arbitrary disqualification of

the Petitioner defeated the doctrine of a level playing field, thereby

rendering the process violative of Article 14 of the Constitution of

India.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

28. The learned Senior Counsel appearing on behalf of Respondent

No.1 submitted that the present petition is devoid of merit and liable

to be dismissed. He submitted that under Clause 2.2.2(B) of the RFP,

the Petitioner was required to demonstrate a minimum assessed

W.P.(C) 3885/2026 Page 12 of 37

available net worth of ₹152.25 crores as on 31.03.2025. He submitted

that Clause 2.2.2(BB) prescribed the formula for determining assessed

available net worth as “A – (20% of B)”, where Component “A”

represented the net worth of the bidder as on 31.03.2025 and

Component “B” represented the aggregate value of existing PPP

commitments secured by the bidder.

29. In relation to the computation of Component “A”, learned

Senior Counsel submitted that Respondent No.1, vide communication

dated 17.03.2026, had specifically sought clarification from the

Petitioner regarding the valuation of the immovable properties of Ms.

Krishna Pandey, associate of the Petitioner, since the Chartered

Accountant’s certificate forming part of the bid was dated 27.12.2025

whereas the RFP required the net worth to be assessed as on

31.03.2025. It was submitted that the Petitioner, in its response dated

19.03.2026, merely stated that the Chartered Accountant’s certificate

was based upon a valuation undertaken by an approved valuer,

without producing any material to establish that the valuation itself

had been carried out as on 31.03.2025. Learned Senior Counsel

submitted that the valuation reports relied upon by the Petitioner were

admittedly dated 18.08.2025 and did not specify the effective date of

valuation of the properties. Consequently, in the absence of any

indication that the valuation had been undertaken as on 31.03.2025,

Respondent No.1 rightly treated the valuation as pertaining to the date

of the report itself and excluded the said immovable properties while

computing the Petitioner’s net worth.

W.P.(C) 3885/2026 Page 13 of 37

30. He submitted that only such assets of Ms. Krishna Pandey as

were demonstrably reflected as on 31.03.2025, namely cash and bank

balances and loans and advances aggregating to ₹16.63 crores, were

added to the admitted net worth of the Petitioner company amounting

to ₹321.68 crores for the purpose of computing Component “A”.

31. Learned Senior Counsel further submitted that there was no

scope under the tender conditions to cure defects or supplement

deficiencies by placing additional documents on record after expiry of

the bid submission deadline on 12.03.2026. In this regard, reliance

was placed upon Clause 2.14.3.1 of the RFP as well as the decision in

M/s Hazoor Multi Projects Limited v. Union of India, W.P.(C)

3434/2026, to contend that fresh material cannot be introduced after

the bid due date. It was submitted that the subsequent Chartered

Accountant’s certificate dated 24.03.2026 and valuation clarification

dated 26.03.2026 were rightly disregarded by Respondent No.1, as the

same had been furnished belatedly after the technical evaluation and

were intended only to cure defects in the original bid documents.

32. Insofar as computation of Component “B” was concerned,

learned Senior Counsel submitted that the estimated project cost for

existing PPP commitments necessarily included not only the EPC or

civil construction cost, but also pre-operative expenses, financing and

legal costs, and interest during construction. He submitted that the

said interpretation was consistent with the MoRTH Circular dated

06.11.2025. According to Respondent No.1, the Petitioner, while

calculating Component “B”, had considered only the civil

construction cost and excluded other relevant components of the

W.P.(C) 3885/2026 Page 14 of 37

estimated project cost, thereby understating its existing commitments.

It was submitted that the said discrepancy was specifically

communicated to the Petitioner vide letter dated 28.03.2026.

33. Learned Senior Counsel further submitted that the Petitioner

had wrongly sought to attribute mala fides to Respondent No.1 on

account of the revised calculations communicated on 28.03.2026. He

submitted that the subsequent calculation in fact gave greater benefit

to the Petitioner by enhancing its assessed available net worth from

₹121.72 crores to ₹148.812 crores after rectification of certain

arithmetical errors in the earlier computation. It was submitted that

Respondent No.1 had additionally granted benefit to the Petitioner by

including amounts that had become due under milestone charts, even

if not actually received, resulting in an increase of ₹290.23 crores

while computing Component “B”. However, despite such benefit, the

Petitioner’s assessed available net worth still remained below the

prescribed threshold of ₹152.25 crores and therefore the Petitioner

was rightly declared technically non-responsive.

34. Learned Senior Counsel appearing for Respondent No.2

submitted that the Petitioner had admittedly failed to satisfy the

minimum net worth requirement prescribed under Clause 2.2.2 of the

RFP, inasmuch as the assessed available net worth of the Petitioner, as

determined by NHAI, was ₹148.812 crores, which fell below the

prescribed threshold. He submitted that the decision of NHAI to

exclude the immovable properties of Ms. Krishna Pandey while

assessing the Petitioner’s net worth was justified and consistent with

the framework of the RFP.

W.P.(C) 3885/2026 Page 15 of 37

35. He further submitted that Respondent No.1 was barred under

Clause 2.14.3.1 of the RFP from accepting any additional documents

after the Bid Due Date, and therefore the subsequent documents

sought to be relied upon by the Petitioner could not have been

considered. Learned Senior Counsel submitted that after the Petitioner

had already been declared technically non-responsive, it sought to rely

upon a fresh Chartered Accountant’s certificate dated 24.03.2026

certifying the net worth of Ms. Krishna Pandey as on 31.03.2025. It

was submitted that unlike the earlier certificate forming part of the bid

documents, the said certificate was not based upon any valuation

report, but had been issued merely on the request of Ms. Krishna

Pandey and was unsupported by any contemporaneous material. He

submitted that Respondent No.1, while rejecting the Petitioner’s

representation on 27.03.2026, had specifically declined to consider the

said certificate on the ground that it was unsupported by relevant

valuation documents.

36. He submitted that the subsequent valuation certificate dated

26.03.2026 issued by the same valuer was also a self-serving

document created after rejection of the technical bid solely to cure

deficiencies in the original bid documents. It was submitted that the

said certificate, for the first time, stated that the earlier valuation

report dated 18.08.2025 had assessed the properties as on 31.03.2025,

despite there being no such indication either in the original valuation

report or in the earlier Chartered Accountant’s certificates.

37. He submitted that Respondent No. 1 has elaboratively explained

the entire calculation of component A and B undertaken by

W.P.(C) 3885/2026 Page 16 of 37

Respondent No. 1 and the same does not involve any arbitrariness or

discrimination. He submitted that in such circumstances, no ground to

interfere has been made out, and the present petition is consequently

liable to be dismissed.

ANALYSIS

38. Before this Court embarks on the journey to delve into the

examination of the merits of the case, at the outset, it is apposite to

briefly note the scope of judicial review in matters pertaining to public

auction/tender. It is not in doubt that the terms concerning the

invitation to tender and its consequential evaluation thereof primarily

falls within the domain of executive discretion. The Tender Evaluation

Committee, more often than not, comprises a body of experts who are

best suited to determine the financial and technical merits of the bids

received. This Court therefore does not sit as a Court of appeal but

merely reviews the manner in which the decision was made. For this

reason, plausible decisions ought not to be interfered with and latitude

also ought to be granted to the State to exercise its executive power.

At the same time, it is pertinent to note that the circumspection

involved in exercise of jurisdiction does not tantamount to mean that

the actions of the State or its instrumentalities are beyond scrutiny.

Pertinently, the scope of judicial review in matters relating to tender

has been navigated by the Hon’ble Apex Court in several judgments

and it has consistently been emphasised that accusations of illegality,

irrationality and procedural impropriety would suffice for Courts to

assume jurisdiction to remedy such defects. In the case of State of

W.P.(C) 3885/2026 Page 17 of 37

Punjab v. Mehar Din

1

, the Hon’ble Apex Court while considering the

principles pertaining to the exercise of judicial interference as evolved

over time, observed as follows:

21. In Tata Cellular v. Union of India [Tata Cellular v. Union of

India, (1994) 6 SCC 651] it was held that judicial review of

government contracts is permissible in order to prevent arbitrariness

or favouritism. It was fearlessly opined in this case as under : (SCC

pp. 687-88, para 94)

“94. The principles deducible from the above are:

(1) The modern trend points to judicial restraint in

administrative action.

(2) The court does not sit as a court of appeal but merely

reviews the manner in which the decision was made.

(3) 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.

(4) 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.

(5) 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 or quasi-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.

(6) Quashing decisions may impose heavy administrative

burden on the administration and lead to increased and

unbudgeted expenditure.”

22. The exposition of law on the subject has been consistently

followed by this Court even in the later decisions holding that

superior courts should not interfere in the matters of tenders, unless

1

(2022) 5 SCC 648

W.P.(C) 3885/2026 Page 18 of 37

substantial public interest was involved or the transaction was mala

fide. It was consistently stressed by this Court that the need for

overwhelming public interest should always be kept in mind to

justify judicial intervention in contracts involving the State and its

instrumentalities and while exercising power of judicial review in

relation to contracts, the courts should consider primarily the

question whether there has been any infirmity in the decision-

making process.

23. This view has been further considered by this Court in Jagdish

Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007)

14 SCC 517] , wherein it was observed as under : (SCC p. 531, para

22)

“22. Judicial review of administrative action is intended

to prevent arbitrariness, irrationality, unreasonableness,

bias and mala fides. Its purpose is to check whether choice

or decision is made “lawfully” and not to check whether

choice or decision is “sound”. When the power of judicial

review is invoked in matters relating to tenders or award

of contracts, certain special features should be borne in

mind. A contract is a commercial transaction. Evaluating

tenders and awarding contracts are essentially

commercial functions. Principles of equity and natural

justice stay at a distance. If the decision relating to award

of contract is bona fide and is in public interest, courts

will not, in exercise of power of judicial review, interfere

even if a procedural aberration or error in assessment or

prejudice to a tenderer, is made out. The power of judicial

review will not be permitted to be invoked to protect

private interest at the cost of public interest, or to decide

contractual disputes. The tenderer or contractor with a

grievance can always seek damages in a civil court.

Attempts by unsuccessful tenderers with imaginary

grievances, wounded pride and business rivalry, to make

mountains out of molehills of some technical/procedural

violation or some prejudice to self, and persuade courts to

interfere by exercising power of judicial review, should be

resisted. Such interferences, either interim or final, may

hold up public works for years, or delay relief and succour

to thousands and millions and may increase the project

cost manifold.”

xxxxx xxxxx xxxxx xxxxx xxxxx

25. The law on the subject is settled that the courts being the

custodian of fundamental rights are under an obligation to interfere

where there is arbitrariness, irrationality, unreasonableness, mala

fides and bias, if any, but at the same time, the courts should

W.P.(C) 3885/2026 Page 19 of 37

exercise the power of judicial review with a lot of restraint,

particularly in contractual and commercial matters.

(Emphasis Supplied)

39. From a reading of the judgment as quoted supra, it materialises

that while there are inherent limitations to the exercise of judicial

review, the power may be invoked to obviate favouritism,

arbitrariness, irrationality, unreasonableness and public interest.

40. In the present case, the technical bid submitted by the Petitioner

was held to be ‘non responsive’, by Respondent No.1, on the ground

that the “Assessed Available Net Worth of the Petitioner at the close of

the preceding financial year (FY 2024-25) is less than the minimum

requirement of Rs. 152.25 Cr. as per clause 2.2.2 (BB) of the RFP

Document.” The controversy in the present petition, therefore,

primarily pertains to the manner in which the Respondent computed

the Petitioner’s “Assessed Available Net Worth” under the terms of

the RFP.

41. Under Clause 2.2.2 of the RFP, a bidder was required to fulfil

the following condition of eligibility in terms of the Financial

Capacity of the Bidder:

2.2.2(B)Financial Capacity: The Bidder shall have a minimum

available Net Worth (the“Financial Capacity”)ofRs. 152.25 crore

(Rs. One hundred Fifty Two Crore and Twenty Five Lakh only) at

the close of the preceding financial year

§

.

In case of a Consortium, the combined technical capability and net

worth of thoseMembers, who have and shall continue to have an

equity share of at least 26%(twenty six per cent) each in the SPV,

should satisfy the above conditions of eligibility; provided that each

such Member shall, for a period of 06 (six) months from the date of

commercial operation of the Project, hold equity share capital not less

than: (i) 26% (twenty six per cent) of the subscribed and paid up

equity of theSPV; and (ii) 5% (five per cent) of the Total Project Cost

specified in theConcession Agreement

£

.

W.P.(C) 3885/2026 Page 20 of 37

Provided further that each member of the Consortium shall have a

minimum available Net Worth of 10% of Estimated Project Cost in the

immediately preceding financial year

§€

.

2.2.2. (BB) Bidders who inter-alia meet the minimum qualification

criteria will be qualified only if their available Net Worth is more than

or equal to the requiredNet Worth value (value as per Clause

2.2.2(B)). The available Net Worth will be assessed as per following,

based on information mentioned at Annexure-VIII ofAppendix-IA:

Assessed Available Net Worth = (A-B*20%), Where A = Net Worth of

theBidder.

B = Balance value of existing commitments of PPP works for which

the bidder has emerged as the winner of the bids or on-going works to

be completed during the period of completion of the works for which

BID is invited. For the avoidance of doubt, it is clarified that works

for which bidder has emerged as the winner of the bids but LOA has

not been issued as on the day before opening the financial bids shall

also be considered while calculating value of B.

The status of Assessed Available Net Worth of the bidder to be

updated as on the date before opening the financial bids.”

42. Further, Clause 2.1.18 of the RFP specifically provides that for

the purpose of determining Net Worth under Clause 2.2.2, the Net

Worth of an Associate of the Bidder would also be eligible for

consideration.

43. As is evident from the above, Clause 2.2.2(BB) of the RFP

prescribes the following formula for determination of the “Assessed

Available Net Worth” of a bidder:

Assessed Available Net Worth = (A-B*20%),

Where:

A = Net Worth of the Bidder.

B = Balance value of existing commitments of PPP works for which

the bidder has emerged as the winner of the bids or on-going works to

W.P.(C) 3885/2026 Page 21 of 37

be completed during the period of completion of the works for which

BID is invited.

44. The challenge laid by the Petitioner essentially proceeds on two

principal grounds concerning the computation adopted by Respondent

No.1 while assessing the aforesaid components.

i. Respondent No.1 excluded the immovable properties of

the Petitioner’s Associate, namely Ms. Krishna Pandey, worth

approximately ₹87 crore, while computing Component “A”,

thereby substantially reducing the net worth attributable to the

Petitioner.

ii. Respondent No.1, while computing Component “B”,

relied upon the MoRTH Circular dated 06.11.2025 and included

financing costs, pre-operative expenses, and interest during

construction within the “Estimated Project Cost”, thereby

inflating the Petitioner’s existing commitments.

Component “A” of the Assessed Available Net Worth

45. At the outset, this Court is conscious of the settled position that

the tendering authority is well within its jurisdiction to prescribe

eligibility conditions, including financial thresholds and cut-off dates

for determination of net worth of bidders, and ordinarily, such

conditions are not liable to be interfered with in exercise of judicial

review unless found to be arbitrary, discriminatory, or actuated by

mala fides. The requirement of assessing the financial position of a

bidder as on a particular date serves a legitimate commercial purpose,

namely, to ensure that only financially stable and established entities

W.P.(C) 3885/2026 Page 22 of 37

possessing the requisite economic capacity are permitted to participate

in public projects of substantial value.

46. However, the rationale underlying such a requirement would

stand on a somewhat different footing in the case of an Associate

whose net worth is permitted to be considered along with that of the

bidder under Clause 2.1.18 of the RFP. The purpose of permitting

inclusion of the Associate’s net worth is evidently to assess the overall

financial capacity available to the bidder for execution of the project.

Viewed from that perspective, the financial capability of the Associate

at the stage of bid evaluation and award of the contract may arguably

assume greater significance than its precise financial position as on the

close of the preceding financial year.

47. Nevertheless, since the Petitioner has participated in the tender

process without assailing the validity of the tender conditions, the

controversy in the present case does not pertain to the validity of the

eligibility criteria prescribed under the RFP itself, but to the legality,

reasonableness, and manner in which Respondent No.1 interpreted

and applied the said conditions while evaluating the Petitioner’s bid.

48. Clause 2.2.4(ii) of the RFP required bidders to furnish

certificates from their Statutory Auditors specifying the net worth of

the bidder as at the close of the preceding financial year. In

compliance thereof, the Petitioner submitted a Net Worth Certificate

dated 27.12.2025 certifying the net worth of its Associate, Ms.

Krishna Pandey, at ₹192.36 crores. The said certificate was based

upon the Net Worth Certificate dated 21.08.2025 and valuation reports

dated 18.08.2025 relating to various immovable properties valued at

W.P.(C) 3885/2026 Page 23 of 37

approximately ₹87 crores. Since the valuation reports did not

expressly recite that the valuation had been undertaken as on

31.03.2025, Respondent No.1 proceeded to seek further clarification

from the Petitioner despite the fact that the RFP itself did not

prescribe any specific format, language, or separate valuation

documentation requirement in which such valuation was required to

be expressed.

49. Pursuant thereto, the Petitioner, vide reply dated 19.03.2026,

clarified that the said net worth was equally applicable as on

31.03.2025. Thereafter, by way of a representation dated 24.03.2026,

the Petitioner also furnished a fresh Chartered Accountant’s

Certificate certifying the net worth of Ms. Krishna Pandey as on

31.03.2025.

50. Respondent No.1 decided the representation of the Petitioner

vide letter dated 27.03.2026. Respondent No.1 considering the

submissions of the Petitioner regarding net worth of the Associate of

the Petitioner(Ms. Krishna Pandey), decided as under:

“Considering the Net Worth of the Associate: The bidder in its 4th,

5th and 6th para of its representation vide letter no. 341 dated

24.03.2026 has submitted regarding net worth of the Associate of the

bidder. As per clause 2.2.2(B) of the RFP Document, it is evident that

the bidder is required to submit its Net Worth at the close of the

preceding financial year (31.03.2025). Accordingly, the Net Worth of

Associate is to be taken at the close of the preceding financial year

which in the instant case is 31st March 2025. However, the bidder has

submitted the certificate dated 27.12.2025 from its Statutory Auditor

certifying that the Net Worth has been computed on the basis of

Audited financial statements of the Company as on 31 .03.2025;

Relevant books of accounts and supporting schedules up to

27.12.2025; and Net worth position of Ms. Krishna Pandey as per

records and declarations made available to Statutory Auditor.

Further, the bidder has submitted the certificate dated 21.08.2025

W.P.(C) 3885/2026 Page 24 of 37

from its Statutory Auditor certifying the Net Worth of its Associate i.e.,

Ms. Krishna Pandey on the basis of information and explanations

furnished to Statutory Auditor, wherein the details of assets and

liabilities considered for the Net worth of Ms. Krishna Pandey are as

under: -

a. Immoveable Properties (As per Valuation Report issued by

Approved Valuer)- Submitted Valuer's certificates were issued on

18.08.2025, but nowhere in the Valuer's Certificates it is mentioned

that the valuation of the immovable properties has been done as on

31.03.2025, therefore, the date of valuation has been considered as on

the date of issuance of the said certificates i.e., 18.08.2025. Since, the

valuation of immovable properties are not certified as on 31 .03.2025,

hence, the immovable properties have not been considered as part of

the Net worth of the Associates as on 31.03.2025 as per clause

2.2.2(B) of RFP.

b. Investment in Equity Shares (basis Valuation of shares as on

31.03.2024)- Since, the same amount is deducted by the bidder as

crossholding investments, hence, the same has been agreed to.

c. Investment in current Assets (Jewellery at cost declared, Furniture

& Fixtures at cost as declared, Investment in Public Provident Fund,

Cash ft. Bank Balance as on 31.03.2025, Loan ft Advances given up to

31.03.2025)- Cash & Bank Balance as on 31.03.2025, i.e., Rs 14.78

Cr. and Loan & Advances given up to 31.03.2025 i.e., Rs 1.85 Cr.

were considered for evaluation as the same are given as on

31.03.2025. Assets for which valuation as on 31.03.2025 were not

certified, have not been considered for evaluation.

Earlier, the bidder was given an opportunity to clarify why the Net

Worth of the Associate has been provided as on 27.12.2025 instead of

31.03 .2025. However, the reply furnished by the bidder vide its letter

dated 19.03.2026 was not found satisfactory as bidder in its letter

dated 19.03.2025 has submitted that the same Net Worth of the

Associate, namely, Ms. Krishna Pandey as per bid documents is

applicable as on 31.03.2025 without any supplementary evidence. In

light of the above, the assessed Net Worth of Ms. Krishna Pandey

comes as Rs 16.63 Cr., considering the following items which have

been valued as on 31.03.2025 in the Statutory Auditors' Certificate:

1. Cash & Bank Balance as on 31.03.2025, i.e., Rs 14.78 Cr.;

2. Loan & Advances given up to 31.03.2025 i.e., Rs 1.85 Cr.

Accordingly, the Assessed Available Net Worth of the bidder comes

out to be less than the minimum requirement of Cl. 2.2.2. (BB) of the

RFP Document, i.e., Rs 152.25 Cr. and the bidder was treated as

"Technically Non-Responsive" as per Cl. 2.2.2.(BB) of the RFP

Document'.

W.P.(C) 3885/2026 Page 25 of 37

It is pertinent to inform that the bidder in its supplementary

representation vide letter no. 343 dated 24.03.2026 has submitted

another Statutory Auditors' certificate dated 24.03.2026.

Notwithstanding, this is an additional document, the merit of this

document has been evaluated. In this certificate the same value of Net

Worth of the Associate has been shown as was submitted in the bid but

now as on 31 st March 2025 excluding the words, "As per Valuation

Report issued by Approved Valuer" after the words "Details of

immovable Properties at Market Value". No supporting documents

confirming the value of Immovable properties and other claimed

assets (except Cash & Bank Balance as on 31.03.2025, Loan &

Advances given up to 31.03.2025) as on 31st March 2025 has been

submitted by the bidder in the representation vide letter no. 343 dated

24.03 .2026. Hence, the same may not be considered as part of the Net

Worth of the Associate as on 31.03.2025.”

51. At this stage, it is apposite to note the Clause 1 of the

Instructions contained in Annexure-3 relating to “Financial Capacity

of the Bidder”, which read as under:

“Instructions:

1. The Bidder/ its constituent Consortium Members shall attach copies

of the balancesheets, financial statements and Annual Reports for 5

(five) years preceding the Bid Due Date. The financial statements

shall:

(a) reflect the financial situation of the Bidder or Consortium

Members and its/ their Associates where the Bidder is relying on its

Associate’s financials;

(b) be audited by a statutory auditor;

(c) be complete, including all notes to the financial statements; and

(d) correspond to accounting periods already completed and audited

(no statements for partial periods shall be requested or accepted).”

52. A plain reading of the aforesaid clause demonstrates that the

RFP nowhere mandated submission of any separate valuation

certificate or independent Statutory Auditor’s certificate of the

Associate in any particular format as a pre-condition for consideration

of the Associate’s net worth. In the present case, the Petitioner had

furnished a consolidated Statutory Auditor’s certificate concerning

both the Petitioner company and its Associate, wherein the relevant

financial information was compiled in tabular form and the net worth

W.P.(C) 3885/2026 Page 26 of 37

of Ms. Krishna Pandey as on 31.03.2025 was specifically reflected as

₹192.36 crores. Prima facie, therefore, the requirement under the

tender conditions stood satisfied. Significantly, even while seeking

clarification vide communication dated 17.03.2026, Respondent No.1

neither questioned the methodology adopted by the Statutory Auditor

nor undertook any independent assessment disputing the correctness

of the valuation reflected in the certificate.

53. It is also pertinent to note that while furnishing the net worth

details of the Associate, the Petitioner had specifically disclosed

details of approximately 20 immovable properties situated in New

Delhi under the signatures of the Statutory Auditor itself. Note-1

appended to the certificate expressly clarified that the market value of

the immovable properties had been taken on the basis of valuation

certificates issued by an approved valuer. In addition thereto,

valuation reports issued by Chartered Engineers and Designers in

respect of each of the said immovable properties were also furnished

along with the bid documents. The said valuation reports were

admittedly issued on 18.08.2025, i.e., prior to submission of the bid

itself. In such circumstances, exclusion of the entirety of the

immovable assets from consideration while computing the Associate’s

net worth merely because the valuation reports did not expressly

mention the date “31.03.2025” was wholly inappropriate and

arbitrary, particularly when the ownership and existence of the

properties prior to the relevant date was never disputed by Respondent

No.1.

W.P.(C) 3885/2026 Page 27 of 37

54. As is evident from the above, Respondent No.1 did not reject

the subsequent Statutory Auditor’s Certificate on the ground that the

assets were non-existent, ineligible, or incorrectly disclosed. The

dispute throughout remained confined only to the absence of express

reference to the valuation date in the supporting valuation material,

despite the substantive financial particulars of the Associate having

already been disclosed in the original bid documents.

55. Subsequently, vide email dated 28.03.2026, the Petitioner

furnished a further clarification issued by the Approved Valuer stating

that the valuation of the immovable properties had in fact been

undertaken with reference to prevailing market rates as on 31.03.2025

and that the issuance date of the reports, i.e., 18.08.2025, had no

bearing on the assessment date. Respondent No.1 has contended that

the said clarification could not be considered since it was furnished

after the Bid Due Date and after completion of the technical

evaluation process. However, the aforesaid clarification neither

introduced any new asset nor altered the financial position already

disclosed in the original bid documents. The clarification merely

explained the reference date and basis of valuation of the very same

immovable properties which already formed part of the bid documents

and whose existence and ownership were never disputed by

Respondent No.1.

56. In the opinion of this Court, the approach adopted by

Respondent No.1 while excluding the immovable properties of the

Petitioner’s Associate from consideration for computation of

Component “A” was manifestly arbitrary and founded upon an unduly

W.P.(C) 3885/2026 Page 28 of 37

hyper-technical interpretation of the tender conditions. Significantly,

Respondent No.1 has nowhere disputed the existence, ownership, or

antecedent acquisition of the immovable properties in question.Vide

letter dated 17.03.2026, the Petitioner was never called upon to

furnish ownership documents pertaining to Mrs. Krishna Pandey, the

Petitioner’s Associate. In these circumstances, it is reasonable to infer

that the Respondent did not, at any stage, dispute the Associate’s

ownership of the 20 immovable properties as on 31.03.2025. The sole

basis for exclusion of assets worth approximately ₹87 crores was that

the valuation reports dated 18.08.2025 did not expressly state in so

many words that the valuation was being reflected as on 31.03.2025.

Thus, the rejection was not founded on absence of assets, absence of

ownership, or falsity of disclosure, but merely on the form in which

the supporting valuation material was expressed.

57. In view of the foregoing it is essential to examine Clause

2.2.4(ii) of the RFP which mandates bidders to submit Certificates

from its Statutory Auditor specifying the net worth of the Bidder, as at

the close of the preceding financial year. The said clause is reproduced

herein below:

“2.2.4 The Bidders shall enclose with its bid, to be submitted as per

the format at Appendix-IA, complete with its Annexes, the following:

(i) Certificate(s) from its statutory auditors or the concerned client(s)

stating the payments made/ received or works commissioned, as the

case may be, during the past 5 years in respect of the projects

specified in paragraph 2.2.2 (A) above. In case a particular job/

contract has been jointly executed by the Bidder (as part of a

Consortium), it should further support its claim for the share in work

done for that particular job/ contract by producing a certificate from

its statutory auditor or the client; and

(ii) Certificate(s) from its statutory auditors specifying the net worth

of the Bidder, as at the close of the preceding financial year, and also

W.P.(C) 3885/2026 Page 29 of 37

specifying that the methodology adopted for calculating such net

worth conforms to the provisions of this Clause 2.2.4 (ii). For the

purposes of this RFP, net worth (the “Net Worth”) shall mean the

aggregate value of the paid-up share capital and all reserves created

out of the profits and securities premium account, after deducting the

aggregate value of the accumulated loses, deferred expenditure and

miscellaneous expenditure not written off, as per the audited balance

sheet, but does not include reserves created out of revaluation of

assets, write back of depreciation and amalgamation.”

(Emphasis Supplied)

58. A conjoint reading of Clause 2.2.4(ii) and the Instructions

contained in Annexure-3 makes it abundantly clear that the RFP

principally required submission of audited financial statements and a

certificate from the Statutory Auditor specifying the net worth of the

bidder as at the close of the preceding financial year. The RFP did not

prescribe any separate mandatory format of valuation certification nor

require independent valuation reports in any particular form as a

condition precedent for consideration of the Associate’s net worth.

59. In fact, the valuation reports relied upon by the Petitioner were

additional supporting material voluntarily furnished along with the bid

documents. Respondent No.1, however, proceeded to treat the absence

of an express recital regarding the valuation date in the valuation

reports as fatal to the bid itself, despite such a requirement being

absent from the tender conditions. It is well settled that a tendering

authority cannot introduce, during evaluation, eligibility conditions or

documentary requirements not contemplated under the terms of the

RFP itself.

60. Furthermore, the approach adopted by Respondent No.1

becomes wholly inappropriate when examined in the factual context

of the present case. The immovable properties excluded from

W.P.(C) 3885/2026 Page 30 of 37

consideration were valued at approximately ₹87.48 crores, whereas

the shortfall ultimately attributed to the Petitioner, even on the

Respondent’s own revised calculations, was only approximately ₹3.44

crores. Thus, exclusion of even a small fraction of the value of the

said immovable properties would have been sufficient to render the

Petitioner technically qualified. Once the existence and ownership of

the assets prior to 31.03.2025 was undisputed, rejection of the entire

value of the immovable properties merely because the valuation

reports did not expressly mention the valuation date was clearly

arbitrary, irrational, and disproportionate to the object sought to be

achieved under the tender conditions.

61. It is also pertinent to note that Respondent No.1 itself proceeded

to examine the subsequent Chartered Accountant’s Certificate dated

24.03.2026 on merits while deciding the Petitioner’s representation.

Once Respondent No.1 chose to evaluate the said document

substantively, it cannot simultaneously contend that no post-bid

clarificatory material whatsoever could be looked into under the

tender conditions. The stand adopted by Respondent No.1 is therefore

internally inconsistent. The subsequent documents furnished by the

Petitioner did not introduce any new asset, alter the financial position

of the bidder, or improve the bid in any substantive manner, but

merely clarified the valuation date of already disclosed assets forming

part of the original bid documents.

62. It is well settled that the chief objective of a tender process is

maximization of public value through a fair, transparent and

competitive bidding process. Since public procurement involves

W.P.(C) 3885/2026 Page 31 of 37

expenditure of public funds, tender conditions are required to be

interpreted and applied in a manner that promotes genuine

competition and secures the most beneficial outcome for the public

exchequer. Reference in this regard is drawn to the judgment in

Shanti Construction (P) Ltd. v. State of Odisha and Others

2

, where

the Hon’ble Apex Court held as under:

“10. A public tender is not a private bargain. It is instrument of

governance, a mechanism through which the State discharges its

solemn duty as trustee of public wealth. Its purpose is not merely

procedural compliance, but maximisation of public value

through a process i.e. fair, transparent and competitive. The

obligation of the Tendering Authority is therefore twofold, namely,

to interpret its own terms with consistency and to ensure that such

interpretation advances, not defeats, the object of tender. The court

must intervene in a case of demonstrable misconstruction of a

tender condition or irrationality which affects the public interest.

When an interpretation of a tender condition narrows competition

and excludes the highest bidder on a ground unsupported by law,

the decision making process is vitiated. The interpretation of the

terms of tender must, therefore, serve the object and purpose of the

tender mainly to maximise the revenue to the State, when it deals

with a natural resource.”

(Emphasis Supplied)

63. Bearing the aforesaid principles in mind, this Court is of the

considered view that the decision-making process adopted by

Respondent No.1 in relation to Component “A” stood vitiated by an

excessively technical interpretation of the tender conditions which had

the effect of excluding an otherwise financially eligible bidder from

the zone of consideration. Public procurement norms are intended to

secure genuine competition and protect public interest, and not to

eliminate bidders on procedural technicalities having no bearing on

substantive eligibility. Particularly in a case where only two bidders

2

2025 SCC OnLine SC 2368

W.P.(C) 3885/2026 Page 32 of 37

participated in the tender process and where, during the course of

hearing, the Petitioner has contended that its financial bid is lower

than that of Respondent No.2, the approach adopted by Respondent

No.1 had the direct consequence of restricting competition and

adversely affecting public interest.

64. In the facts of the present case, this Court is therefore unable to

sustain the exclusion of the immovable properties of the Petitioner’s

Associate while computing Component “A” of the Assessed Available

Net Worth. Once the statutory auditor’s certificate stood furnished in

terms of Clause 2.2.4(ii), the assets themselves were undisputed,

Respondent No.1 could not have rejected the Petitioner’s bid merely

because the accompanying valuation reports did not expressly specify

the valuation date in a particular format. Such an approach amounts to

elevating form over substance and results in defeating the very object

of competitive public procurement.

65. Permitting Respondent No.1 to reject the Petitioner’s bid in the

aforesaid circumstances would effectively amount to permitting

disqualification of an otherwise eligible bidder on the basis of a

deficiency which neither affected the substance of the bid nor caused

any prejudice to competing bidders. The law relating to public

procurement consistently distinguishes between essential conditions

affecting eligibility and ancillary procedural requirements relating to

the mode of proof. In the present case, the substantive requirement of

financial capacity stood fulfilled, while the alleged defect pertained

only to the manner in which the supporting valuation material was

expressed.

W.P.(C) 3885/2026 Page 33 of 37

Component “B” of the Assessed Available Net Worth.

66. As regards the assessment of Component “B”, the controversy

in the present case is confined to the question whether Respondent

No.1 was justified in relying upon the MoRTH Circular dated

06.11.2025 while computing the “Estimated Project Cost” for the

purposes of Clause 2.2.2(BB) of the RFP, and consequently including

components such as pre-operative expenses, financing and legal costs,

and interest during construction within the computation of Component

“B”.

67. The MoRTH Circular dated 06.11.2025 clarifies that the

“Estimated Project Cost” for HAM projects would include not merely

the EPC/civil construction cost, but also pre-operative expenses,

financing and legal costs, and interest during construction.

Respondent No.1 has relied upon the said circular while assessing the

balance value of the Petitioner’s ongoing commitments for the

purposes of computation of Component “B”.

68. It is pertinent to note that Clause 2.1.24 of the RFP specifically

provides that all orders issued by the Ministry of Finance, DPIIT, or

any other Government agencies, as applicable and prevalent on the

date of issuance of the LOA, shall apply to the tender process. The

said clause reads as under:

“2.1.24 All Orders of Ministry of Finance/DPIIT/any other

Government agencies, as applicable and prevalent on the date of

LOA, shall be applicable.”

69. The Ministry of Road Transport & Highways (MoRTH), being

the nodal ministry governing the subject project and the issuing

W.P.(C) 3885/2026 Page 34 of 37

authority of the circular dated 06.11.2025, would clearly fall within

the ambit of “other Government agencies” contemplated under Clause

2.1.24 of the RFP. Consequently, the contention of the Petitioner that

the said circular could not have been relied upon merely because it

was not separately incorporated through a corrigendum to the RFP

cannot be accepted. At the same time, even accepting the

methodology adopted by Respondent No.1 for computation of

Component “B” on the basis of the aforesaid circular, the Petitioner

would still satisfy the prescribed threshold of Assessed Available Net

Worth once Component “A” is computed by taking into consideration

the immovable properties of the Associate which already formed part

of the original bid documents. The controversy in the present case,

therefore, essentially does not arise on account of the methodology

adopted for computation of Component “B”, but on account of the

exclusion of the immovable properties while assessing Component

“A” on an unduly hyper-technical basis.

70. In the aforesaid circumstances, this Court finds no arbitrariness

or illegality in the methodology adopted by Respondent No.1 while

computing Component “B” of the Assessed Available Net Worth, and

consequently no fault can be found with the reliance placed upon the

MoRTH Circular dated 06.11.2025 for the said purpose.

71. It has also been contended by the Petitioner that Respondent

No.1 repeatedly altered the assessment of the Petitioner’s Assessed

Available Net Worth and the computation of Component “B” even

after rejection of the technical bid. It was submitted that while the

communication dated 27.03.2026 reflected the Petitioner’s Assessed

W.P.(C) 3885/2026 Page 35 of 37

Available Net Worth as ₹121.72 crores, the same was subsequently

revised to ₹148.81 crores. Similarly, the computation of Component

“B” was revised from ₹1082.95 crores to ₹947.49 crores. Although

the aforesaid circumstances do raise certain concerns regarding the

manner in which the evaluation exercise was undertaken by the

tendering authority, Respondent No.1 has explained the same as

inadvertent computational errors on the part of the concerned officials.

Be that as it may, the repeated revisions undertaken by Respondent

No.1 itself demonstrate that the evaluation process was neither treated

as immutable nor incapable of correction. In such circumstances,

Respondent No.1 could not have simultaneously adopted a rigid and

hyper-technical approach while considering the clarificatory material

furnished by the Petitioner in relation to Component “A”, particularly

when the same neither introduced any new asset nor altered the

substantive financial position already disclosed in the original bid

documents.

CONCLUSION

72. In view of the foregoing discussion, this Court finds no

infirmity in the methodology adopted by Respondent No.1 while

computing Component “B” of the Assessed Available Net Worth.

However, insofar as Component “A” is concerned, this Court is of the

considered opinion that Respondent No.1 acted arbitrarily and adopted

an unduly hyper-technical approach in excluding the immovable

properties of the Petitioner’s Associate from consideration.

73. The rejection of the Petitioner’s bid was not founded upon any

dispute regarding the existence, ownership, or antecedent acquisition

W.P.(C) 3885/2026 Page 36 of 37

of the assets in question, nor upon any finding that the Petitioner

lacked substantive financial capacity. The disqualification arose solely

because the valuation reports accompanying the Statutory Auditor’s

Certificate did not expressly state that the valuation was as on

31.03.2025, despite no such specific requirement being prescribed

under the RFP. The tender conditions merely required submission of a

Statutory Auditor’s Certificate specifying the net worth as at the close

of the preceding financial year, which requirement stood duly

complied with by the Petitioner. Respondent No.1, in effect,

introduced an additional documentary condition during the course of

evaluation which was never stipulated in the RFP.

74. This Court is also unable to overlook that the shortfall attributed

to the Petitioner by Respondent No.1 was itself marginal, being

approximately ₹3.44 crores even on the revised calculations of

Respondent No.1, whereas the value of immovable properties

excluded from consideration was approximately ₹87.48 crores. In

such circumstances, wholesale exclusion of the said assets on a purely

technical basis was wholly inappropriate and contrary to the principles

governing fair and competitive public procurement.

75. Significantly, Respondent No.1 has never contended that

consideration of the immovable properties of the Associate would

prejudice any competing bidder or alter the level playing field. On the

contrary, the properties in question formed part of the original bid

documents themselves. The present case, therefore, is not one

involving supplementation or improvement of a bid after submission,

but merely one concerning clarification of already disclosed material.

W.P.(C) 3885/2026 Page 37 of 37

76. Accordingly, the impugned decision declaring the Petitioner as

“Technically Non-Responsive” insofar as it excludes the immovable

properties of the Petitioner’s Associate while computing Component

“A” is set aside. Respondent No.1 is directed to recompute the

Petitioner’s Assessed Available Net Worth by taking into

consideration the said immovable properties forming part of the

original bid documents and thereafter proceed consequentially in

accordance with law.

77. The present petition is disposed of in the aforesaid terms.

Pending applications also stand disposed of.

AMIT MAHAJAN, J.

ANIL KSHETARPAL, J.

MAY 29, 2026

s.godara/vv/shah