1. Heard Sri Raja Sripathi Rao, learned Senior Counsel assisted by Sri Lakshmikanth Reddy Desai, learned counsel for petitioner, Sri B. Narasimha Sharma, learned Additional Solicitor General representing Respondents 1 and 2 and Sri B. Adinarayana Rao, learned Senior Counsel assisted by Sri Sai Sanjay Suraneni, learned counsel for Respondent No.3.

2. Petitioner claims to be a leading infrastructure development company in India with over two decades of experience in execution of Engineering, Procurement and Construction (EPC) projects, etcetera. It is stated, Respondent No.2 issued Tender Notice dated 03.06.2025 for execution of EPC contract for construction of new bi-directional twin tunnels between Usarani and Jamod stations in connection with the Akola-Khandwa Gauge Conversion Project of South Central Railway, valued at approximately Rs.1124.48 Crores, involving twin tunnels of about 6.70 kilometers each along with associated infrastructure, funded from the public exchequer and published on the Indian Railways E-Procurement System (IREPS).

2.1. It is stated, tender followed a two-envelope system comprising Techno-Commercial Bid and Financial Bid, and only responsive Techno-Commercial Bids would qualify for opening of Financial Bids. Petitioner is stated to have submitted Techno-Commercial Bid strictly in accordance with the RFP, fulfilling all eligibility criteria including technical experience, financial thresholds, net worth, personnel, and machinery requirements. However, they received a system-generated e mail dated 20.02.2026 stating that its bid was “not responsive and not qualified for opening financial bid,” which, according to petitioner, was non-speaking and did not disclose any reasons or violated clause.

               2.2. Petitioner therefore, is stated to have submitted representation dated 21.02.2026 seeking reasons and reconsideration, contending that it had complied with all requirements. Respondent No.2, by communication dated 24.02.2026, for the first time, disclosed that rejection was based on Clauses 7(a) and 7(b) of Annexure-I, which required certification that no investigation by any regulatory authority or investigating agency was pending against the bidder, its members, sister concerns, or key personnel, and alleged that Petitioner’s disclosure of CBI FIR No. RC 2182021A0007 dated 30.12.2021 vitiated certification and rendered it a “Non-Performing Entity.”

               2.3. The said reasoning, petitioner states, is factually-incorrect and legally-unsustainable, as investigation in the said CBI FIR was completed; charge-sheet was filed vide CC No.25 of 2022, and the matter is pending trial before the Court of Special Judge (PC Act) (CBI), Rouse Avenue Court, Delhi, posted to 24.03.3036 for prosecution evidence, therefore, no investigation was pending as on the date of bid submission. It is stated, Clause 7(a), relating to investigation by a regulatory authority, is inapplicable as no regulatory authority has initiated any investigation, proceedings, inquiry, or action against the Petitioner. Respondents have erroneously equated criminal trial with pending investigation and misapplied Clause 7(b), as investigation concluded upon filing of charge-sheet and cognizance by the competent court, and thereafter, the matter is in the stage of trial, which is legally distinct from investigation.

               2.4. It is stated, Clause 7(b) must be strictly construed, as it refers only to “pending investigation” and not to pendency of criminal proceedings, trial, or charge sheet, and therefore cannot be expanded by administrative interpretation to include stages beyond investigation. Petitioner drawing attention to the definition of the expression "investigation" under Section 2(h) of the Code of Criminal Procedure, 1973, states that the statutory definition is abundantly clear that investigation is confined to the stage of collection of evidence by the investigating agency and does not extend beyond the filing of the final report under Section 173 Cr.P.C. Once the investigating agency completes collection of evidence and submits charge-sheet before the competent court, the stage of investigation comes to an end and the matter enters the domain of judicial proceedings.

               2.5. Petitioner has also relied on the judgment of the Hon'ble Supreme Court in Hardeep Singh v. State of Punjab (2014 (3) SCC 92), wherein ‘trial’ has been defined in detail as under:

               " 30. In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.), AIR 1996 SC 1340, a three-Judge Bench while dealing with the proceedings in General Court Martial under the provisions of the Army Act 1950, applied legal maxim "nullus commodum capere potest de injuria sua propria" (no one can take advantage of his own wrong), and referred to various dictionary meanings of the word 'trial' and came to the conclusion:

               It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial."

               Our conclusion further gets fortified by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV "Conditions requisite for initiation of proceedings" containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with "trial before a Court of Sessions" pursuant to committal order under Section 209 and in Chapter XIX "trial of warrant cases by Magistrates" containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the offence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the offence and taking further steps to conduct the trial."

               2.6. Learned counsel for petitioner states that, investigation is an executive process of evidence collection; trial is a judicial process that commences upon cognizance being taken by the competent court. In the present case, investigation has admittedly been completed, charge-sheet has been filed, cognizance has been taken, and the matter is at the stage of prosecution evidence. Therefore, as a matter of law, no "investigation" is pending within the meaning of Clause 7(b), and Respondents' attempt to equate a pending trial with a pending investigation is contrary to the statutory definition and binding judicial interpretation.

               2.7. It is stated, even assuming pendency of investigation could be a ground, such consequence must be expressly provided in the tender, which is absent in Clause 7(b), therefore, rejection lacks contractual and legal basis. It is also submitted that Clauses 7(a) and 7(b) are themselves arbitrary, unreasonable, and violative of Article 14, as they create vague and sweeping disqualifications based on mere pendency of investigation without conviction, without clear criteria, safeguards, or objective standards, and confer unguided discretion on the Respondents. Mere pendency of FIR or criminal proceedings does not establish guilt and cannot be a lawful ground for disqualification, as the presumption of innocence applies until conviction by a competent court. Respondents have incorrectly categorized Petitioner as a “Non-Performing Entity” without any contractual default or performance failure, and such classification is arbitrary and without foundation.

3. In the counter filed on behalf of Respondents 1 and 2, it is stated, bids were opened on 30.10.2025 at 15.00 hours, wherein 13 bids including Petitioner’s bid were received. A duly constituted Tender Committee consisting of three SAG (Senior Administrative Grade) officers evaluated the bids and submitted its report on 19.02.2026 to the Accepting Authority i.e., CAO/C/SCR (Chief Administrative Officer/Construction/South Central Railway), recommending 07 bids as qualified and 06 bids as disqualified including Petitioner, and the Accepting Authority accepted the recommendations on 20.02.2026.

               3.1. It is stated, evaluation of bids was conducted in accordance with the published tender conditions and documents submitted. As per Annexure-I of Appendix-IA, Para 7(b) at Page-47 of the RFP required certification that no investigation by any investigating agency in India or outside is pending against the bidder or its related persons. Petitioner altered the prescribed Annexure-I format by adding an additional certification stating that while no investigation is pending, there exists CBI FIR No. RC218292140007 dated 30.12.2021 which is pending adjudication and is sub-judice, involving officers of NHAI and DBL, with a stand that DBL and its officers are falsely implicated.

               3.2. It is stated, Petitioner’s declaration is contradictory as it certifies absence of investigation while simultaneously disclosing pendency of CBI FIR, rendering the bid non-responsive. As per Clause 2.1.7 of the RFP, any condition or stipulation in the bid leads to rejection, and Petitioner’s additional certification amounts to modification of the prescribed format under Annexure-I of Appendix-IA, thereby attracting rejection. Clause 1.2.1 of the RFP makes applicable the Government of India guidelines contained in Annexure VI of Appendix-IA, empowering the Authority to disqualify bidders at any stage. As per Para (a) of the said guidelines, conviction or indictment relating to a grave offence may result in disqualification, and as Petitioner is facing criminal trial in CBI FIR, the said guidelines are attracted.

               3.3. It is stated, on 20.02.2026, petitioner was informed through automated IREPS e mail that its Techno-Commercial Bid was found “not responsive and not qualified for opening financial bid.” Petitioner’s representation dated 21.02.2026 was replied by letter dated 24.02.2026 that as per Annexure-I of Appendix-IA, Para 7(b) required certification that no investigation by any investigating agency is pending, but Petitioner altered the prescribed format by adding certification stating that CBI FIR is pending adjudication and is sub-judice involving officers of NHAI and DBL, while claiming false implication. This creates contradiction, as petitioner simultaneously certifies absence of investigation and discloses the said FIR. It is further submitted that tender evaluation depends on compliance with tender conditions and petitioner is not fulfilling mandatory qualification and is treated as non-performing entity under Annexure-I of Appendix-IA. It is submitted that Clause 2.1.7 provides that any condition or stipulation in the bid renders it non-responsive, and petitioner’s additional certification amounts to modification of the prescribed format, thereby attracting rejection. It is submitted that petitioner is selectively reading Annexure-I, as the clause provides that non-fulfilment results in classification as “Non-Performing Entity.”

               3.4. It is stated, Petitioner, having participated in the tender without protest, is estopped from challenging Clauses 7(a) and 7(b) after disqualification, and the challenge to the clauses as arbitrary and violative of Article 14 is untenable, as Government contracts cannot be awarded to persons facing criminal trial for grave offences, and the tender conditions are framed at Railway Board level and uniformly implemented.

               3.5. Respondents 1 and 2 rely on the judgment in The Silppi Constructions Contractors v. Union Of India ((2019) 10 S.C.R. 932) wherein the Hon’ble Supreme Court held as under:

               " 25. That brings us to the most contentious issue as to whether the learned single judge of the High Court was right in holding that the appellate orders were bad since they were without reasons. We must remember that we are dealing with purely administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a state within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasi-judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. I and 2 were entitled to give reasons in the counter to the writ petition which they have done." (emphasis supplied).

               3.6. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. ((2016) 16 SCC 818), the Hon’ble Supreme Court held categorically as under:

               " 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.," (Para 15)(emphasis supplied).

               3.7. The Hon'ble Supreme Court in their recent judgment in Tata Motors Limited Vs. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) (2023 Live Law (SC) 467) held as follows:

               “ 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.'(emphasis supplied).

               25. In view of the above submissions, it is respectfully submitted that the Writ Petition is wholly devoid of merits, based on selective interpretations and misconceived legal grounds. The Petitioner has failed to establish any arbitrariness, mala fides, violation of statutory provisions, or infringement of Constitutional rights warranting interference by this Hon'ble Court under Article 226 of the Constitution of India. The impugned action of the Respondents was taken strictly in accordance with the tender conditions and pursuant to a fair, transparent, and objective evaluation process undertaken in public interest without any prejudice. The official Respondents reserve their right to file an additional counter, if necessary.

               Respondents therefore, pray to dismiss the Writ Petition.

4. Respondent No.3 also filed counter stating that theirs is a Joint Venture between CS Construction Co. Pvt. Ltd. and MMSI and is the successful bidder under Tender Notice dated 03.06.2025 and its bid amount is Rs. 761,95,37,161/-, which is 32.34% lower than the estimated value and more than Rs. 56 Crores lower than the L2 bidder. It is stated, Petitioner filed the present Writ Petition only on 02.03.2026 after completion of the tender process, therefore Writ Petition is vitiated by delay and laches and liable to be dismissed on this ground alone.

               4.1. It is also stated, the Hon’ble Supreme Court and High Courts have consistently held that delay and laches are sufficient grounds to dismiss writ petitions in tender matters, as laid down in Rotoffset Corpn. v. Security Printing & Mining Corpn. of India Ltd. (2025 SCC OnLine Del 5546); Gaurav Enterprises v. GTB Hospital W.P.(C) 522/2026, Judgment dated 23.02.2026 of High Court of Delhi; Moksh Innovations Inc. v. State of U.P. (2021 SCC OnLine All 206).

               4.2. It is stated, as per settled law, a bidder, who has participated in the tender, cannot subsequently challenge the tender conditions, and such challenge is impermissible, as held in Travancore Devaswom Board v. Ayyappa Spices ((2024) 7 SCC 543) and Moksh Innovations Inc. case (supra). According to Respondent No.3, framing of tender conditions is within the exclusive domain of the tendering authority and courts do not interfere unless there is manifest arbitrariness or mala fides, as held in Silppi Constructions Contractors; Galaxy Transport Agencies v. New J.K. Roadways ((2021) 16 SCC 808); Michigan Rubber (India) Ltd. v. State of Karnataka ((2012) 8 SCC 216); Jagdish Mandal v. State of Orissa ((2007) 14 SCC 517); Marc-M Furniture v. State of Telangana (2024 SCC OnLine TS 4356).

               4.3. It is stated, Clauses 7(a) and 7(b) were validly prescribed to ensure disclosure of pending proceedings and assess bidder’s integrity and fitness, and such conditions are neither arbitrary nor unreasonable but are standard eligibility requirements in public procurement, as recognized in Afcons Infrastructure Ltd.

               4.4. It is further stated, Petitioner’s challenge seeks substitution of Court’s judgment over the commercial wisdom of the tendering authority, which is impermissible in the absence of mala fides, which are neither alleged nor established. Petitioner has also sought re-tendering, which would cause grave prejudice to Respondent No.3 and undermine the integrity of the sealed bid process.

5. From a perusal of the material on record, it is to be seen, undisputedly, petitioner participated in the tender process pursuant to Tender Notice dated 03.06.2025 without any protest to Clauses 7(a) and 7(b) of Annexure-I, and submitted its bid accepting all the terms and conditions. They did not challenge the tender conditions at the stage of issuance of tender on 03.06.2025 or prior to submission of bid on 24.10.2025, but has chosen to file the present Writ Petition only on 02.03.2026 after being declared disqualified on 20.02.2026 and after completion of technical evaluation and opening of financial bids. This conduct clearly attracts the principle of delay and laches, and also the settled principle that a bidder who participates in the tender process without protest cannot subsequently challenge the terms of the tender after being unsuccessful, as was laid down in Travancore Devaswom Board v. Ayyappa Spices, and Moksh Innovations Inc. v. State of U.P.

6. According to learned Senior Counsel appearing for petitioner, respondents have erroneously equated criminal ‘trial’ with pending ‘investigation’ and misapplied Clause 7(b), as investigation concluded upon filing of charge-sheet and cognizance by the competent court, thereafter, the matter is in the stage of ‘trial’, which is legally distinct from ‘investigation’.

7. Here, it is to be seen, petitioner altered the prescribed Annexure-I format by adding an additional certification stating that while no investigation is pending, there exists CBI FIR No. RC218292140007 dated 30.12.2021 which is pending adjudication and is sub-judice, involving officers of NHAI and DBL, with a stand that DBL and its officers are falsely implicated. Petitioner’s declaration is contradictory as it certifies absence of investigation while simultaneously disclosing pendency of CBI FIR, rendering the bid non-responsive. As per Clause 2.1.7 of the RFP, any condition or stipulation in the bid leads to rejection, and petitioner’s additional certification amounts to modification of the prescribed format under Annexure-I of Appendix-IA, thereby attracting rejection. Clause 1.2.1 of the RFP makes applicable the Government of India guidelines contained in Annexure VI of Appendix-IA, empowering the Authority to disqualify bidders at any stage. As per Para (a) of the said guidelines, conviction or indictment relating to a grave offence may result in disqualification, and as Petitioner is facing criminal trial in CBI FIR, the said guidelines are attracted.

8. The Tender Committee evaluated the bid based on the documents submitted by Petitioner. In this regard, learned Senior Counsel for petitioner submits that ‘investigation’ and ‘trial’ are distinct stages, but the said submission does not assist the case of petitioner, as the tender condition required a clear and unconditional certification in the prescribed format, and Petitioner admittedly modified the format and introduced additional certification, which is impermissible under Clause 2.1.7 and renders the bid non-responsive.

9. It is settled law that framing of tender conditions is within the exclusive domain of the tendering authority and judicial review is limited to cases of mala fides, arbitrariness or perversity, which are not established in the present case. It is to be observed, conditions are intended to ensure integrity, reliability and suitability of bidders in execution of public projects involving substantial public funds, and cannot be termed arbitrary merely because they operate to the disadvantage of a particular bidder.

10. Further, interpretation of tender conditions, including Clauses 7(a) and 7(b), lies primarily with the tendering authority, being the author of the document. Even if two interpretations are possible, the interpretation adopted by the authority must prevail unless it is shown to be arbitrary or perverse, which is not the case here. Petitioner’s attempt to seek judicial declaration that Clauses 7(a) and 7(b) are unconstitutional and to direct issuance of a fresh tender amounts to inviting this Court to rewrite the tender conditions and interfere with the commercial decision of the authority, which is impermissible in exercise of writ jurisdiction. Judgments of the Hon’ble Supreme Court in Silppi Constructions Contractors v. Union of India,; Michigan Rubber (India) Ltd. v. State of Karnataka; Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. clearly hold that the Court should not interfere with tender conditions.

11. Moreover, petitioner has not established any mala fides, bias or extraneous considerations in the decision-making process. Evaluation of bids has been carried out by a duly constituted Tender Committee consisting of three SAG officers, strictly in accordance with the tender conditions, and the decision has been accepted by the competent authority i.e., CAO/C/SCR on 20.02.2026. The process is thus transparent, structured, and in conformity with the terms of the RFP.

12. Learned Senior Counsel appeared for Respondent No.3 places reliance on the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh v. Uttar Pradesh State Bridge Corporation Limited ((2022) 16 SCC 633), wherein at paras 27 ad 28, it has been held as under:

               “27. It is clear that Shri Dhruv Mehta is right when he refers to and relies upon the aforesaid judgment in Caratel Infotech [Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81] for the proposition that where there is a format which had to be strictly complied with, his client was justified in going by the literal reading of the aforesaid format, which only required a disclosure of pending investigations under Clause 7(b) of Annexure I of NIT. However, as has correctly been pointed out by Shri Saurbh Mishra and Shri Puneet Jain, Clause 7(b) of Annexure I, which is in terms similar to Para 13 of Appendix I-A, must be read together with Para 11 thereof, which, as has been pointed out hereinabove, requires the bidder to certify that in regard to matters other than security and integrity of the country, the bidder has not been convicted by a court of law or indicted. Clearly in the facts of the present case, though the investigation is no longer pending and though there is no conviction by a court of law, UPSBC has certainly been “indicted”, in that, a charge-sheet has been filed against it relatable to the FIR dated 15-5-2018 in which a trial is pending, though stayed by the High Court. Also, Shri Saurabh Mishra is correct in stating that “fraudulent practice”, as defined in Clause 4.3(b) of NIT, would include an omission of facts or disclosure of incomplete facts in order to influence the bidding process. In the facts of the present case, there is clearly an omission of a most relevant fact and suppression of the same fact, namely, that an FIR had been lodged against UPSBC in respect of the construction of a bridge by it, which had collapsed, and in which a charge-sheet had been lodged.

               28. This being the case, State of A.P. v. B. Chinnam Naidu [State of A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746 : 2005 SCC (L&S) 323] is clearly distinguishable, as in the facts of that case, the expression “convicted” could not have possibly included the factum of arrest which was pre-conviction. On the facts of the present case, we have seen as to how UPSBC has indulged in a fraudulent practice and has suppressed the fact that it was indicted for offences relatable to the construction of a bridge by it, which had collapsed. Equally, paras 12 to 18 of the judgment in Vinubhai Haribhai Malaviya v. State of Gujarat [Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1 : (2020) 3 SCC (Cri) 228] , which distinguish between investigation, inquiry and trial in a criminal case, are also of no avail to UPSBC in view of the finding hereinabove. Equally, the well-known rule of contra proferentem as expounded in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas, (2009) 5 SCC 313 : (2009) 2 SCC (Civ) 524 : (2009) 2 SCC (L&S) 32] (at para 32) is also of no avail, given the fact that there is no ambiguity whatsoever insofar as the fraudulent practice clause and Para 11 of Appendix I-A are concerned.”

13. In view of the same, the action of Respondents in treating Petitioner as non-responsive and non-performing entity is thus in accordance with the tender conditions and cannot be said to be arbitrary or illegal.

14. The contention that the communication dated 20.02.2026 is non-speaking is also without merit, in view of the law laid down in Silppi Constructions Contractors v. Union of India that reasons need not be given at the stage of rejection and can be furnished in the counter affidavit, which has been done in the present case.

15. The prayer for re-tendering is also untenable, as the financial bids have already been opened on 20.02.2026 and Respondent No.3 has been declared successful with bid amount of Rs. 761,95,37,161/-, being 32.34% lower than the estimate and more than Rs. 56 Crores lower than the L2 bidder, and directing re-tendering would cause prejudice, destroy the sanctity of sealed bid process and adversely affect public interest as held in Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking ((2023) 19 SCC 1).

16. It is also a settled principle of law that matters relating to award of contracts and tender conditions fall within the realm of commercial and administrative discretion of the tendering authority, and the scope of interference under Article 226 of the Constitution is extremely limited. The Court does not sit as an appellate authority over decisions of the tendering authority nor does it substitute its own interpretation in place of that of the authority which has authored the tender.

17. Judicial review in tender matters is confined only to examining the decision-making process and not the merits of the decision itself. Interference is warranted only when the action of the authority is shown to be vitiated by mala fides, arbitrariness, irrationality, perversity, or violation of statutory provisions. In the absence of such factors, the Court must exercise restraint and defer to the commercial wisdom and expertise of the tendering authority.

18. In view of the above analysis, this Court is of the considered opinion that Writ Petition is not maintainable and no case is made out for interference under Article 226 of the Constitution.

19. Accordingly, the Writ Petition is dismissed. No costs.

20. Consequently, the miscellaneous Applications, if any shall stand closed.