WP(C)/7003/2026 of RAKESH PANDA Vs STATE OF ODISHA on 20 May 2026

J U D G M E N T

---------------------------------------------------------------------------------- Date of Judgment: 20th May, 2026 ---------------------------------------------------------------------------------- HARISH TANDON, CJ.

1. The dispute raised in the instant writ petition is within the limited compass, more particularly on the mathematical calculation on the basis of a formula given in the tender document relating to bid capacity. Both the petitioner as well as the State has submitted the calculation on the basis of such formula which is at variance. There is no dispute to the applicability of the formula provided in the said tender document for ascertaining the bid capacity and, therefore, the instant writ petition can be decided on the basis of the undisputed facts discerned from the record.

2. In order to address the issue as stated hereinabove, the facts which led the foundation of the genesis thereof is adumbrated hereinafter.

3. The petitioner is an „A‟ Class Contractor registered with Public Works Department, Government of Odisha and participated in the tender pursuant to Tender Call Notice vie e-procurement notice No. 3781 dated 23.10.2025 for 33 road works in the district of Balasore and Bhadrak. At the time of floating the Tender Call Notice, the last date of submission of the bid was fixed to 15th November 2025, but subsequently by 1st corrigendum dated 4th November, 2025 the same was extended up to 24th November, 2025 and was further extended by 2nd corrigendum dated 21st November, 2025 up to 8th December, 2025. The petitioner along with opposite party no.7 submitted the bid within the said extended time and technical bid was opened on 9th December, 2025. The tender summary report and technical evaluation summary dated 7th February, 2026 reveals that 7 bidders including the petitioner and opposite party no.7 were found technically qualified and the financial bid was opened on 12th February, 2026 and opposite party no.7 was declared as L1 by quoting 14.99 % less than the estimated cost. The petitioner subsequently came to know that bid capacity of opposite party no.7 has been wrongly calculated by applying the formula and, therefore, challenged the declaration of opposite party no.7 as L1.

4. Clause- 2.1 (7) of the General Instructions to Tenderers contained the exhaustive mechanism in ascertaining the bid capacity of each intending bidder on the basis of a formula provided therein. In order to avoid any ambiguity, the said Clause is quoted as under: “2.1 (7) Bid Capacity (As per Works Department L.No 6300 Dtd 16.6.2011. Bid capacity clause as qualification criteria has been included). These stipulations shall apply to all works above Rs 3.00 Crores) Applicants who meet the minimum qualification criteria will be qualified only if their available bid capacity at the expected time of bidding is more than the total estimated cost of the works. The available bid capacity will be calculated as under: Assessed Available Bid Capacity= (A*N*2-B) where

A= Maximum value of Civil Engineering works executed in any one year during the last five years (updated to the current price level) rate of inflation may be taken as 10 percent per year (escalation factor) which will make in to account the completed as well as works in progress. B= Value of current price level of the existing commitments & ongoing works to be completed during the next years (period of completion of works for which bids are invited). The information for the value of B need to be furnished in Format –II. N= Number of years prescribed for completion of the works for which the bids are invited. (For work completion period less than one year the value may be taken as one year) The statement showing the value of existing commitments & on- going works as well as stipulated period of completion remaining for each of the works listed should be duly signed by the bidders only.”

5. The entire stand of the petitioner in relation to the aforementioned Clause is vividly and explicitly pleaded in paragraphs-8 to 11 of the writ petition. It is the specific stand of the petitioner that said opposite party no.7 disclosed the existing ongoing works valued at Rs.210.00 Lakhs which in fact has been taken by the authority while ascertaining the bid capacity. According to the petitioner, the opposite party no.7 was further awarded contracts for an amount of Rs. 3,48,38,115/- and the letter of acceptance was issued on 17th January, 2026 and for Rs.7,00,39,847 on the basis of the letter of acceptance dated 7th February, 2026 and, therefore, the authorities while evaluating the bids at the technical bid stage ought to have taken into consideration the same and if those figures are taken into account, it would bring a negative bid capacity of the opposite party no.7, which is not in conformity with Clause 2.1 (7) of the Detailed Tender Call Notice.

6. On the other hand, the State has taken a stand that the authorities have correctly calculated the bid capacity on the basis of the formula provided in the said clause and found the bid capacity higher than the required bid capacity in relation to the work awarded to opposite party no.7

7. Before we proceed on such factual matrix, the law relating to interference by the Writ Court in relation to a government contract or a tender matter is required to be recapitulated.

8. In Vidarbha Irrigation Development Corporation and others v Anoj Kumar Agarwala and others, reported in (2020) 17 SCC 577 the apex Court reiterated and restated the principles that the author of the tender document is the best person to give a meaning to the expressions or words used therein in the following:

“15. However, the learned counsel appearing on behalf of the appellant strongly relied upon Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] , and paras 14 and 15 in particular, which state: (SCC p. 825) “14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context, the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.

15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.”

It is further held therein that the moment the essential conditions are incorporated in the tender document, those should be given credence and its strict compliance should be ensured by the tendering authority in the following: “16. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous—they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court.”

9. In Agmatel India Private Limited v. Resoursys Telecom and others, reported in (2022) 5 SCC 362, the apex Court had an occasion to consider the scope of judicial review in contract matters, more particularly in relation to the interpretation of tender document and held that the authority who has drafted or is the author of the tender document is the most suited person to understand and appreciate the meaning of the “words” and “expressions” as well as “clauses” incorporated therein, in juxtaposition with the object sought to be achieved and the Court should not ordinarily interfere in this regard. Even if the Court finds that the interpretation given by the maker of the tender document is not acceptable that itself cannot be a ground to discard the same, in the following: “25. This Court referred to various decisions on the subject and stated the legal principles as follows : (Galaxy Transport Agencies case [Galaxy Transport Agencies v. New J.K. Roadways, Fleet Owners & Transport Contractors, (2021) 16 SCC 808 : 2020 SCC OnLine SC 1035] , SCC paras 14-20) “14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure

Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] , this Court held : (SCC p. 825, para 15) „15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.‟

15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha [Bharat Coking Coal Ltd. v. AMR Dev Prabha, (2020) 16 SCC 759] , under the heading “Deference to authority's interpretation”, this Court stated : (SCC p. 776, paras 50-52) „50. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent 1 seeks to only enforce terms of NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.

51. In the present facts, it is clear that BCCL and C1-India have laid recourse to clauses of NIT, whether it be to justify condonation of delay of Respondent 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818]

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

16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India [Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489] , this Court held as follows : (SCC pp. 501-02, para 20) „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.‟

17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word “both” appearing in Condition No. 31 of the NIT For this reason, the Division Bench's conclusion [New JK Roadways v. State (UT of J&K), 2020 SCC OnLine J&K 733] that JK Roadways was wrongly declared to be ineligible, is set aside.

18. Insofar as Condition No. 27 of the NIT prescribing work experience of at least 5 years of not less than the value of Rs 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] , this Court noted : (SCC pp. 531-32, 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. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say:“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;

(ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.‟

19. Similarly, in Montecarlo Ltd. v. NTPC Ltd. [Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272] , this Court stated as follows : (SCC p. 288, para 26) „26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But 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.‟

20. This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own.” (italicised matter emphasised in the original; emphasis in bold italics supplied)

10. In Vedika Resources v. National Aluminium Company Ltd. reported in 2025 SCC OnLine Ori 4148, this Bench had an occasion to consider the similar aspect when the parties were at variance in interpreting the words used in the tender document. It was held that every words and expressions which are used in the

tender document carries a meaning and/or significance as the author shall not use any words or expressions which are either redundant or surplusage and, therefore, the interference by the Writ Court is minimal.

11. The law enunciated in the above reports have laid down a uniform principle relating to the interpretation of the tender document to the effect that the Court must accept the interpretation given by the draftsman/author of the said tender document to the words and the expressions used therein if they do not frustrate the purpose for which the tender is floated. The writ Court should not substitute its own interpretation unless the interpretation given by the author of the tender document is unreasonable, irrationally and beyond comprehension in the ordinary circumstances. The Writ Court should be slow and circumspect in interfering on the premise of giving a meaning to a tender document if those appears to be clear and unambiguous and used to subserve the purpose for which the tender is floated.

12. Reverting to the merit of the said case, the said clause 2.1

(7) relating to a bid capacity, appears to have been understood by the petitioner and the State authorities in the different manner. The dispute, in effect, hovers around the value to be given to “Be”, which is relatable to the existing commitments & on-going works to be completed during the next year. The petitioner has taken into account even the works subsequently awarded and/or allotted to the opposite party no.7 after the last date of submission of the bid, whereas the authorities have taken the value of the existing work as disclosed by opposite party no.7 in its bid document. The contention of the petitioner is unacceptable for the reason that the said clause mandates the bid capacity to be ascertained at the expected time of bidding. It further postulates that the said bid capacity must be more than the total estimated cost of the work. The expressions “available bid capacity at the expected time of bidding” has to be understood as the capacity of a bidder as on the last date of submission of the bid. If any work awarded subsequent to the last date of submission of the bid is taken into consideration, it would frustrate the purpose of an expression “expected time of bidding”. The intending contractors bids on or before the last date of the submission and, therefore, the capacity has to be evaluated on the said date and not the date posterior thereto.

13. The opposite party no.7 was awarded a work valued at Rs. 7,00,39,847/- on 7th February, 2026 and Rs.3,48,38,115/- on 17th January, 2026, much after the last date of submission of the bid and, therefore, the contention of the petitioner with regard to inclusion of the said work as an ongoing work by the petitioner is unacceptable and, therefore, the relief claimed in the instant writ petition cannot be granted. Accordingly the writ petition sans merit and the same is, therefore, dismissed.

(Harish Tandon)

Chief Justice

(M.S. Raman) Judge

Arun Mishra Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2026 19:01:26 Signature Not Verified