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GAHC010057962026

2026:GAU-AS:4655-DB

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WA/79/2026

SPS CONSTRUCTION INDIA PRIVATE LIMITED,

THROUGH ITS AUTHORIZED REPRESENTATIVE MR. MADHAV SINGLA,

HAVING REGISTERED OFFICE AT 1006-1007, 10TH FLOOR,

PEARLS BEST HEIGHT-1, NETAJI SUBHASH PLACE,

PITAMPURA, NEW DELHI – 110034.

….……Appellant

-VERSUS -

1.UNION OF INDIA,

THROUGH MINISTRY OF RAILWAYS,

HAVING ITS OFFICE AT 256-A, RAISINA ROAD,

RAJPATH AREA, CENTRAL SECRETARIAT,

NEW DELHI- 110001.

2:NORTHEAST FRONTIER RAILWAY,

THROUGH CHIEF ENGINEER,

HAVING ITS OFFICE AT CONSTRUCTION OFFICE,

MALIGAON, GUWAHATI -781011.

3:LARSEN AND TOUBRO LIMITED,

HAVING ITS OFFICE AT 8TH FLOOR,

VATIKA MINDSCAPE BUILDING,

DELHI MATHURA ROAD, FARIDABAD – 121003.

…… Respondents

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– BEFORE –

HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR

HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

Advocate for the Appellant(s): Mr. Vivek Chib, Senior Advocate assisted by Mr.

Siddhartha Sunil, Mr. Aditya Mittal, Mr. Vibhu Pahuja

and Mr. A Chakraborty, Advocates.

Advocate for the respondent(s0: Mr. K. Gogoi, Central Government Counsel, for

respondent Nos.1 & 2.

: Mr. D. Das, Senior Advocate assisted by Mr. R.

Sarmah, Ms. M. Kakoty and Ms. A. Gupta,

Advocates for respondent No.3.

Date of Hearing : 27.03.2026 & 31.03.2026.

Date of Judgment : 01.04.2026.

J UDGMENT & O RDER

(Ashutosh Kumar, CJ)

We have heard the learned counsel for the parties.

2. The appellant/SPS Construction India Private Limited has

challenged the judgment dated 18.02.2026 passed by a learned Single

Judge of this Court in WP(C) No.5051/2025 and WP(C) No.6625/2025,

whereby the afore-noted two writ petitions have been dismissed,

upholding the validity of the eligibility condition for the revised Request

For Proposal (in short “RFP”) dated 23.07.2025 and the rejection of the

appellant’s technical bid as non-responsive.

3. The respondent Nos.1 and 2 had issued an RFP dated

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19.05.2025 for execution of major infrastructure project on Engineering,

Procurement and Construction (EPC) Mode, namely, construction of

second rail-cum-road bridge over river Brahmaputra along with

associated works.

4. The original RFP contained an eligibility condition in Clause

2.2.2.4.iii.ii.2 of Section 2 thereof that there should not be a history of

collapse of superstructure/substructure of any span of a

bridge/flyover/via-duct/metro-line work during construction/service in

last 5(five) years, ending last day of month previous to the one in which

tender is invited and that an undertaking in that regard shall be

submitted along with the bid.

5. Upon representation by the prospective bidders including the

appellant, the respondents issued a revised RFP dated 23.07.2025,

clarifying that only collapses attributable to design failure or quality

failure would be relevant; and the look-back period would be reduced

from 5(five) years to 3(three) years.

6. The appellant submitted its bid pursuant to the revised RFP but

with the “without prejudice” clause and contemporaneously filed WP(C)

No.5051/2025, [WP(C) No.5051/2025 was filed on 26.08.2025 as claimed

by the appellant i.e. a day before the submission of the bid but

according to the respondents the afore-noted was filed after the

submission of the bid] challenging the validity of the clause or in the

alternative, a declaration from the Court that such clause would not

operate against the bidders having suffered a collapse in respect of any

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of their projects in the last 3(three) years on account of force majeure

and/or in absence of any determined or adjudicated fault of the bidder.

7. While the afore-noted writ petition was pending, the technical

bid of the appellant was rejected on 28.10.2025 as non-responsive in

terms of the afore-noted clause. Another writ petition vide WP(C)

No.6274/2025 thus was filed, challenging the said rejection. However, on

submission that the Letter of Acceptance (LOA) had already been issued

to respondent No.3/Larsen and Toubro Limited (L&T), the afore-noted writ

petition [WP(C) No.6274/2025] was withdrawn by the appellant with the

liberty to challenge the same. Thereafter, the appellant had preferred

WP(C) No.6625/2025 challenging the grant of LOA to respondent No.3.

8. Before the learned Single Judge, it was argued on behalf of

the appellant that the clause in question was void as it was vague,

uncertain and ambiguous and, therefore, it did not provide a “level

playing field” on account of inherent uncertainties in the application of

such clause. In a project undertaken by the appellant in the State of

Bihar within 3(three) years of the present RFP, there had been a collapse

of few spans of the bridge under construction but without any fatalities

and the cause of such collapse has till date not been ascertained.

It was thus contended by the appellant that the history of the

collapse, referred to above, could not have been read against it.

9. A reference was made by the appellant to the judgment of

the Supreme Court in Reliance Energy Limited & Anr. –Vs- Maharashtra

State Road Development Corporation Limited & Ors. :: (2007) 8 SCC 1 ,

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wherein it was held that where tenders are invited, the terms and

conditions must indicate with legal certainty the norms and benchmarks.

Any vagueness or subjectivity in the said norms would result in

unequal/discriminatory treatment, thus, violating the doctrine of “level

playing field”. Reference was also made to the judgment of the Supreme

Court in Atlanta Limited -Vs- Union of India & Anr. :: 2018 SCC OnLine

Del 8269 and Blue Dreamz Advertising Private Limited -Vs- Kolkata

Municipal Corporation Limited & Ors.:: (2024) 15 SCC 26 4 to argue that

the clause in question actually led to automatic debarment of the

appellant in the absence of any determined guilt, which is impermissible.

10. The learned Single Judge framed a number of issues but

primarily as to whether the appellant, having participated in the tender

process had the locus to challenge the eligibility condition? (b) Whether

the impugned clause is vague, arbitrary or violative of the doctrine of

“level playing field”? (c) Whether the impugned clause amounts to

automatic blacklisting and (d) Whether the rejection of the appellant’s

technical bid is legally sustainable?

11. The learned Single Judge, on perusal of the facts of the case,

found that the appellant had submitted its bid after the issuance of the

revised RFP with full knowledge of the impugned eligibility condition.

12. Applying the law laid down in National High Speed Rail

Corporation Limited -Vs- Montecarlo Limited & Anr. :: (2022) 6 SCC 401 ,

it was held by the learned Single Judge that a bidder who participates in

a tender process with the knowledge of its terms cannot subsequently

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challenge those terms upon being unsuccessful. The appellant perhaps,

according to the learned Single Judge, attempted to circumvent this

principle by contending that the writ petition was filed with “without

prejudice” clause and contemporaneously with or perhaps after the bid

submission.

It was found that the appellant had already participated in

the process, which was a conscious commercial decision. The tendering

authority, more often than not, would structure its process on the

assumptions that bidders have accepted the terms. Allowing such a

challenge would enable bidders to adopt the practice of participating in

the process and then, upon failure, assailing the conditions, which is

impermissible.

13. Challenging the afore-noted finding of the learned Single

Judge, it was argued on behalf of the appellant that the first writ petition

[WP(C) No.5051/2025) was filed on 26.08.2025, questioning the inclusion

of the disqualification criterion at Clause 2.2.2.4.iii.ii.2 of the said RFP,

being vague, over-broad, arbitrary and specifically targeted, as it

required the bidders to undertake that they do not have any history of

collapse of superstructure/substructure of any span of a bridge/flyover

during construction or service in the last 3(three) years, but without

clarifying whether the incidents for which no adjudicated liability has

been fixed on the bidder would be included in this clause. The appellant

had submitted its bid on 27.08.2025 looking at the time-line provided in

the RFP.

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14. In support of the afore-noted fact, it was contended on behalf

of the appellant that it is a matter of record that the first writ petition was

notarized and filed on 26.08.2025.

It has also been pointed out that the appellant had given an

undertaking dated 26.08.2025 along with its bid in compliance of the said

clause of RFP on a “without prejudice” basis.

Even though the same was brought on record before the

learned Single Judge by way of an additional affidavit, it was held by the

learned Single Judge that the challenge to the eligibility condition was

made after participation by the appellant.

15. It would not be necessary for us to go into the afore-noted

aspect as it appears that despite deciding the locus of the appellant to

challenge the eligibility condition in the negative, the learned Single

Judge proceeded to determine other questions framed, namely,

whether the clause in question was vague or arbitrary or it resulted in

automatic blacklisting and whether the rejection of the appellant’s bid

was sustainable.

16. The learned Single Judge, on perusal of the undertaking given

by the appellant, found that there was no explanation that the collapse

of a few spans of the bridge during construction by the appellant in

Bihar, was not because of any design failure or quality failure. The

appellant had understood the ambit of reach of the clause in question.

There was no vagueness and uncertainty regarding the application of

that clause. The State has a right to fix its own terms of the tender which is

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not open to judicial scrutiny. A reference was made in the impugned

judgment to Tata Cellular -Vs- Union of India :: (1994) 6 SCC 651.

17. The learned Single Judge concluded on a detailed reading of

the clause in question that there was no arbitrariness or mala fides.

Relying on a judgment of Supreme Court in Uflex Limited -Vs-

Government of Tamil Nadu & Ors. :: (2022) 1 SCC 165 , wherein it was

held by the Supreme Court that in every tender, there are certain

qualifying parameters whether it be technology or turnover and the

Courts cannot in exercise of judicial review sit over such conditions,

rejected the contention of the appellant.

18. Let us now examine the clause in question to understand

whether the same is vague or arbitrary.

19. The records reveal that the original concern of vagueness

stood substantially addressed by the clarification in the revised RFP. The

clause, as it stands now, limits the disqualification to collapse attributable

to (i) design failure or (ii) quality failure. These are well understood

technical parameters in engineering practice, which, in our estimation,

are neither indeterminate nor subjective.

20. Post the clarification, the eligibility clause became applicable

uniformly to all bidders and it also reflected a rational nexus with the

objective of ensuring structural safety in a complex bridge project. This

condition is, in fact, a risk mitigation measure. Infrastructure project of this

magnitude demands high degree of reliability. Excluding the bidders for

recent history of collapse attributable to design failure or quality failure is

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a legitimate policy choice.

21. That apart, the reduction of the look-back period from five

years to three years further demonstrates that the respondents acted

fairly and responsibly.

22. The argument that the impugned clause amounts to

automatic blacklisting is also misconceived. Blacklisting entails stigmatic

exclusion from all future contracts and carries civil consequences. The

impugned clause in its present form, merely prescribes an eligibility

criterion for a specific tender. It neither imposes a penalty nor prohibits

future participation in other tenders. The distinction between the eligibility

condition and blacklisting is well recognized in tender jurisprudence. The

clause in question, therefore, falls squarely within the category of a valid

risk mitigation clause.

23. The contention that the clause cannot be activated in the

absence of prior determination or adjudication of the cause of collapse

and is, therefore, faulty, does not merit acceptance.

24. At the first glance, the argument appears to be attractive but

it proceeds on a fundamentally incorrect understanding of the nature

and purpose of eligibility condition in a tender.

25. As noted above, the clause is not penal in character. It is

preventive and is a risk-cover, intended to enable the employer to assess

the technical reliability and risk profile of bidders in high-stakes

infrastructure projects.

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26. Requiring a prior judicial or quasi-judicial adjudication of cause

of collapse would defeat the very purpose of such a clause.

Infrastructure failures often involve prolonged technical investigations;

expert committee reports and delayed or inconclusive findings. If the

applicability of the clause were made contingent upon the final

adjudication, the employer would be compelled to either indefinitely

delay the procurement or ignore recent and potentially serious structural

failures. Neither of the consequences would be acceptable in public

procurements.

27. The appellant’s argument prima-facie appears to rest on the

assumption that the clause operates mechanically upon mere

occurrence of a collapse. This is incorrect. The Revised RFP specifically

limits its application to collapses attributable to the design failure or

quality failure.

Thus, in the impugned clause, there is an in-built causal filter. It

does not disqualify every bidder with a collapse history but only those

where collapse is linked to the deficiencies attributable to the bidder.

28. In a tender process, the burden of demonstrating eligibility lies

on the bidder. Where a bidder has a known history of collapse within the

relevant period, it is incumbent upon such a bidder to disclose the

incident fully and explain with supporting materials, if necessary, that the

collapse was not due to design or quality failure, but for other factors like

force majeure, third party interference or any other extraneous causes. If

the bidder fails to provide such clarification, the employer would be

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entitled to proceed on the basis of the available record.

29. In the present case, the learned Single Judge has rightly found

that the appellant’s undertaking does not contain any such categorical

clarification.

30. There is no principle in tender jurisprudence that eligibility

conditions must depend upon prior adjudication of disputed facts. On

the contrary, the Supreme Court has consistently held in Tata Cellular

(supra) and Jagdish Mandal -Vs- State of Orissa & Ors. :: (2007) 14 SCC

517 that the tender authorities have wide latitude in prescribing eligibility

criteria. The Courts do not substitute their own standards and the

commercial decisions can be based on reasonable assumptions of risk,

not proved beyond doubt.

31. Tender evaluation is not a judicial trial. It is only a commercial

and a technical screening process.

32. Accepting the appellant’s argument would lead to

impractical consequences. Every bidder with a collapse history could

claim pending inquiry and remain eligible or the employer would be

forced to independently investigate technical causes mid-tender and, in

that case, the procurement process would become unworkable and

uncertain. Public authorities are entitled to adopt administrable criteria,

particularly in any technically sensitive projects involving public safety.

33. We, therefore, are of the view that the clause, as it stands after

clarification, narrows the scope to specific causes, namely,

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design/quality failure; it limits the timeframe of three years and requires

an undertaking from the bidder, striking a reasonable fairness between

bidder and protection of public interest.

34. The absence of formal adjudication does not render the

clause vague or unworkable; rather it places a duty of disclosure and

explanation on the bidder.

35. The appellant has had a recent collapse incident and no

conclusive explanation was made available to the extent that it was

unrelated to design failure or quality failure. The undertaking given by the

appellant does not dispel the risk contemplated by the clause. In such

circumstances, the tender authority acted within its rights in treating the

bid of the appellant as non-responsive.

36. Another issue raised on behalf of the appellant is the rationale

of a three years’ look-back period.

This is a matter of policy grounded in commercial and

technical considerations in infrastructure contracts, particularly those

involving bridges over major rivers. The employer is entitled to assess the

current technical and operational reliability of a bidder. A recent failure

within 3(three) years is far more relevant indicator of a present capability

than an older incident. The original FRP prescribed a five years’ period.

Upon representations, this was consciously reduced to three years,

demonstrating that the authority applied its mind and responded to the

industry concerns and in fact, adopted a less restrictive standard. A

defined temporal cut-off ensures certainty and uniformity. Any longer

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period may become unduly harsh; while a shorter period might dilute

safety concerns. The choice of three years, according to us, lies within a

reasonable band of discretion.

37. As held in Uflex Limited (supra), the authorities are best

placed to determine the technical and commercial threshold required

for a project. The Courts do not calibrate such parameters unless they

are manifestly arbitrary.

38. No materials have been placed on record to show that the

three years’ period is capricious, irrational or without nexus to object of

ensuring structural safety. The challenge, therefore, fails.

39. Another argument raised on behalf of the appellant is that

such a clause would operate as a hindrance to his participation in other

tenders across India. This argument is misconceived for the reason that it

is a tender specific condition. Each tender is an independent invitation,

governed by its own terms. The clause in the present RFP applies only to

this procurement process and in no case creates a binding precedent for

other authorities. It does not amount to blacklisting. It does not debar the

appellant from future tenders and also does not create any adverse

record enforceable by other authorities. Different Government bodies

may adopt different eligibility criteria, depending upon project

complexities, risk profile and technical requirements.

40. The apprehension of exclusion from pan India tenders thus is

purely speculative. The Courts ought not to invalidate a clause on the

basis of hypothetical downstream effects.

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41. Another argument raised on behalf of the appellant is that the

requirement of giving an undertaking has been made implicit but without

providing any contours within which such undertaking is to be given.

This contention is equally untenable. The purpose of

undertaking is clear. It is required to affirm that there is no disqualifying

collapse attributable to design failure or quality failure within the

stipulated period. What should be the substance of declaration is,

therefore, absolutely unambiguous. The tender conditions primarily

require declarations without prescribing exhaustive formats.

42. What is required is substantive compliance and not ritualistic

adherence to any template. Where a bidder is aware of potential

disqualification event, it is incumbent upon it to disclose the history of

collapse fully; explain its causes and clarify why it does not fall within the

disqualification criteria.

43. The appellant has not provided a clear statement that the

Bihar collapse was unrelated to design failure or quality failure. He has

not placed any material or explanation to that effect.

44. The impugned eligibility framework represents a legitimate

exercise of contractual discretion, aimed at safeguarding public interest

in a technically sensitive project. The appellant has failed to demonstrate

that the conditions are vague or unworkable ; or that the process is

arbitrary or unfair.

45. For the afore-noted reasons, this writ appeal is dismissed and

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the impugned judgment passed by the learned Single Judge is sustained

and upheld.

JUDGE CHIEF JUSTICE

Comparing Assistant