WP(C)/24666/2026 of SUDHANSU BEJ Vs STATE OF ODISHA on 1 September 2026

1. Heard learned counsel for both the Parties.

2. The Petitioner has approached this Court questioning the validity of the condition incorporated in the Notice Inviting Tender dated 20.07.2026 issued by the Child Development Project Officer, Basudevpur, for procurement and supply of other components for Anganwadi Centres under the Saksham Anganwadi Project in Bhadrak District. The principal challenge is to Clause 17 of the tender conditions, whereby a bidder is required to have successfully executed at least one similar supply order of a minimum value of Rs.40 lakh under any Government Department during the prescribed period. WP(C)/24666/2026 ODHC010581832026 2026:OHC:86-DB

3. Learned counsel for the petitioner, argues that the value of the procurement in question is only Rs.11,26,600/- and, therefore, prescribing an experience requirement of having executed a similar order of Rs.40 lakh is excessive and arbitrary. It is further contended that in another tender relating to the same project, no such monetary qualification was prescribed and that the impugned condition has the effect of excluding the Petitioner from participating in the tender process. The Petitioner had also submitted a representation questioning the said condition.

4. The scope of interference by a Constitutional Court in matters relating to tenders and contracts is by now well settled. The formulation of the eligibility conditions in a tender is primarily within the domain of the tendering authority, which is best placed to determine the qualifications and experience considered necessary for successful execution of the work for which the tender is floated. The Court, while exercising jurisdiction under Article 226 of the Constitution, does not sit as an appellate authority over such determination and cannot substitute its own assessment of what ought to have been prescribed as a qualification in place of that of the authority.

5. In The Silppi Constructions Contractors vs. Union of India, reported in (2020) 16 SCC 489, the Hon’ble Supreme Court reiterated the settled principles governing judicial review in contractual and tender matters. The relevant paragraph is reproduced below:

“15. In Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd.1 it was held that a mere disagreement with the decisionmaking process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decisionmaking process or the decision. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.

16. In Montecarlo vs. NTPC Ltd.2 it was held that where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints. …

19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clearcut case of arbitrariness or mala fides or bias or irrationality is made out. One must 1 (2016) 16 SCC 818; 2016 KHC 6606 2 AIR 2016 SC 4946

remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges’ robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.

20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.”

6. From the aforesaid decision, it is clear that judicial review is directed against arbitrariness, irrationality, mala fides, bias or perversity in the decision-making process; it is not an appellate review of the commercial or administrative decision of the tendering authority. The Court is required to exercise considerable restraint and cannot substitute its own view merely because another condition or another course may appear more appropriate.

7. The same principle was reiterated by the Hon’ble Supreme Court in Tata Motors Limited vs. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and Others, reported in 2023 SCC OnLine SC 671, wherein the Court observed that a writ Court should ordinarily refrain from imposing its own decision over that of the employer in matters concerning acceptance of a bid unless something very gross or palpable is demonstrated. The relevant paragraph is reproduced below: “52. Ordinarily, a writ court should 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 something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three- Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679.

53. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC

617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.

54. As observed by this Court in Jagdish Mandal v. State of Orissa and Others, reported in (2007) 14 SCC 517, that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.”

8. Tested on the aforesaid parameters, we are unable to find any such infirmity in the present case. The authority has prescribed a qualification requiring the bidder to have successfully executed at least one similar supply order of the value of Rs.40 lakh. The Petitioner does not allege that such a condition is prohibited by any statutory provision. His principal objection is that the value of the present procurement is approximately Rs.11.26 lakh and, therefore,

the experience requirement of Rs.40 lakh is disproportionate. The mere fact that the prescribed experience requirement is higher than the estimated value of the present procurement, by itself, does not render the condition arbitrary or illegal.

9. The determination as to the nature and extent of prior experience necessary for a bidder is fundamentally a matter for the authority floating the tender. Such a condition may legitimately be intended to ensure that the bidder possesses sufficient experience and capacity to execute the work in question. Whether the authority ought to have prescribed an experience requirement of Rs.20 lakh, Rs.30 lakh, Rs.40 lakh or any other amount is not a matter upon which this Court can embark upon an enquiry in exercise of judicial review, in the absence of a demonstrated violation of law or manifest arbitrariness.

10. Equally, the Petitioner’s reliance upon the terms of another tender does not advance his case. Merely because a different tender may have contained a different eligibility requirement cannot, without more, establish that the condition prescribed in the present tender is arbitrary. Tender conditions are to be assessed in the context of the particular procurement, its requirements and the decision of the authority competent to formulate those requirements. There is nothing on record before us to demonstrate that the two tender processes were identical in all material particulars or that the authority was statutorily bound to replicate the conditions of the earlier tender.

11. The Petitioner has also failed to demonstrate that the impugned condition is contrary to any statutory provision. No provision has been brought to our notice which prohibits the tendering authority from prescribing a minimum experience criterion of the nature in question. The prescription of eligibility conditions is essentially within the domain of the authority floating the tender, and the Court would not ordinarily interfere merely because a prospective bidder finds such condition onerous or is thereby rendered ineligible.

12. The mere fact that the present procurement is valued at Rs.11,26,600/- while the prescribed experience requirement is of a similar work of Rs.40 lakh cannot, by itself, establish arbitrariness. The authority is entitled to assess the experience and capacity which, in its commercial and administrative judgment, is necessary for execution of the work. The Court cannot substitute its own view as to what would constitute an appropriate eligibility criterion unless the condition is shown to be manifestly arbitrary, irrational, mala fide or contrary to law.

13. In the present case, no such infirmity has been demonstrated. The condition applies uniformly to the bidders and there is no material before us to indicate that it was introduced with a view to favour any particular bidder. The reliance upon the terms of another tender also does not assist the Petitioner, particularly when no material has been placed to establish that the two tender processes were identical in all material respects. A different eligibility condition in another tender, by itself, cannot render the present condition arbitrary.

14. In view of the aforesaid, we find no ground for exercising our writ jurisdiction to interfere with the tender condition in question. The writ petition is, accordingly, dismissed.

15. Pending I.A.s, if any, also stands disposed of.

(Harish Tandon)

(Chittaranjan Dash) Chief Justice

Judge

AK Pradhan/Priyanka Digitally Signed Signed by: PRIYANKA BARIK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 07-Sep-2026 11:23:37 Signature Not Verified