Judgment & Order (Cav)

1. Approach to this Court under Article 226 of the Constitution of India has been made seeking the following relief:

                   “In the premises aforesaid, it is most respectfully prayed that Your Lordships may be pleased to admit this petition, issue Rule, calling upon the Respondent authorities to show cause as to why the writ, order or direction, as prayed for shall not be issued and upon hearing the parties on the cause or causes that may be shown and on perusal of the records be pleased to grant to the Petitioner the following relief/reliefs:-

                   1. A writ of certiorari or any other appropriate writ, order or direction quashing the Impugned Letter dated 03.01.2026 (Annexure-16 to the Writ Petition) and directing the Respondents to consider the Petitioner as qualified;

                   2. Direct the Respondents No. 2 and 3 to not open the financial bids, scheduled for opening on 12.01.2026, till the pendency of the present writ petition;

                   3. Direct the Respondents No. 2 and 3 to consider the Petitioner's bid in case the financial bids are opened,

                   4. Pass such other and further orders as this Hon'ble Court may deem fit and proper in the interest of justice, equity and good conscience.

                   -AND-

                   Pending disposal of the Rule, staying the Impugned Letter dated 03.01.2026 or any consequential orders thereto (Annexure-16 to the Writ Petition) and directing the Respondents No. 2 and 3 to not open the financial scheduled for opening bids, on 12.01.2026, till the pendency of the present writ petition and/or be pleased to pass such order or orders as Your Lordships may deem fit and proper.”

2. The facts, as projected by the petitioner which are relevant to the determination of the lis in question can be stated briefly as follows.

3. The respondent no. 2 - Numaligarh Refinery Limited (herein after NRL), through the respondent no. 3 had floated a Notice Inviting Tender on 25.07.2025 for the work “Balance of Plant Works for LPG Marketing Terminal”. As per the requirement of the notice, a bidder was required to be technically qualified whereafter his commercial bid would be taken into consideration. The petitioner which claims to be technically qualified had submitted its bid, which however was held to be non-responsive. The said action was the subject matter of challenge in a proceeding initiated in the Hon’ble Delhi High Court, which was however, disposed of on 31.12.2025 directing consideration and disposal of the representation of the petitioner which was said to be pending. The said representation was rejected vide an e-mail dated 03.01.2026 which is the subject matter of the present challenge, for which, the relief as stated above, has been prayed for. The primary grievance of the petitioner is that such rejection of the bid of the petitioner on the technical ground has been done without any application of mind, arbitrarily and with a mala fide intention.

4. I have heard Shri M. K. Choudhury, learned Senior Counsel, assisted by Shri S. Khound, learned counsel and Shri P. Shrivastava, learned counsel for the petitioner. I have also heard Shri S. S. Roy, learned CGC appearing for the respondent no. 1, Shri A. Garg, learned counsel for the respondent no. 2 and Shri J. Roy, learned Senior Counsel assisted by Ms. B. Saha, learned counsel for the respondent no. 3.

5. Shri Choudhury, the learned Senior Counsel for the petitioner has submitted that the tender document itself had laid down clearly the aspect as to how a bidder would be deemed to be technically qualified. He has submitted that the petitioner fulfills the said criteria laid down in Clause 10.1 (b), which is as follows:

                   “The Bidder must have successfully completed at least 1 (one) engineering, procurement and construction (EPC) / engineering, procurement, construction and commissioning (EPCC) / lump sum turnkey basis (LSTK) contract on its own with single point responsibility, involving “project management, design or residual design and detailed engineering*, procurement, construction, pre-commissioning and commissioning / commissioning assistance”, during last 15 years ending last day of month previous to one in which the original bid due date falls, for any 1 (one) of the following:

                   (a)

                   …

                   Or

                   (b)

                   “Any Process Unit” in Hydro-Carbon Sector (Refineries or Petrochemical or On-Shore Gas and/or Oil Processing Facility or Offshore Gas and/or Oil Processing Facility) or Fertilizer Sector (Fertilizer Plant).”

6. To support the aforesaid contention, the learned Senior Counsel has drawn the attention of this Court to the Certificate issued by an earlier owner, wherein it has been certified that the petitioner has the experience of undertaking a work on EPC basis. He has also drawn the attention of this Court to the completion certificate given with regard to the aforesaid work. He submits that in view of such certificate, the contents of which are not disputed or rejected, the impugned action of rejecting the bid of the petitioner on the ground of technical non-responsiveness is unsustainable in law. The learned Senior Counsel has drawn the attention of this Court to the impugned communication, vide e-mail dated 03.01.2026 and has contended that the consideration which have been stated are ex facie erroneous, as the earlier work has been stated to be on the rate contract basis, whereas the document in support of such work clearly states that it is on EPC basis. He has submitted that an affidavit-inopposition has been filed by the respondents on 17.01.2026 wherein a justification has been sought to be made regarding the decision by incorporating new grounds, which is not permissible in law. He has reiterated that holding the petitioner to have done the previous work on item rate basis and not on EPC basis is without any application of mind and is arbitrary in view of the clear mention in the certificate dated 20.08.2025. The Senior Counsel has submitted that the grievance of the petitioner is only with regard to holding the bid of the petitioner to be technically non-responsive and by such impugned action the scope of competition has been sought to be reduced.

7. In support of his submission, the learned Senior Counsel has placed reliance upon the following case laws:

                   (i) (2024) 10 SCC 273 [Banshidhar Construction Pvt. Ltd. vs. Bharat Coking Coal Ltd. & Anr.]

                   (ii) 2022 SCC Online Gau 1990 [B.N. Infraprojects LLP vs. Union of India]

                   (iii) 2023 SCC Online Gau 5352 [ Royal Bnillp vs. Union of India]

8. In the case of Banshidhar (supra), the Hon’ble Supreme Court had reiterated the requirement of the Government bodies to uphold fairness and transparency in grant of Government contracts. In the case of B.N. Infraprojects (supra), this Court had interfered with a decision making process regarding the grant of a contract as a relevant consideration qua to the credentials of the petitioner was ignored and overlooked. In the case of Royal Bnillp (supra), interference was made by this Court as the rejection of a bid was on a hyper-technical ground.

9. Per contra, Shri Garg, the learned counsel for the respondent no. 2 - NRL has strenuously opposed the writ petition. He has submitted that the petitioner is thwarting a process of allotment of a work of immense national importance by instituting frivolous litigations. He has submitted that the litigation was instituted initially in the Hon’ble Delhi High Court in spite of the fact that there was lack of territorial jurisdiction. Be that as it may, in terms of the direction of the Hon’ble Delhi High Court on 31.12.2025, the representation of the petitioner was duly considered culminating in the issuance of the communication dated 03.01.2026, vide e-mail which has subsequently been challenged in the present writ petition. He has submitted that the representation was duly considered and by stating relevant consideration and factors, the same has been rejected. He has strenuously disputed the proposition of any mala fide in the decision making process. He has submitted that the conduct of the petitioner itself is not bona fide in presenting the instant challenge.

10. The learned counsel for the NRL has drawn the attention of this Court to the NIT, more particularly the scope of work. He has submitted that the requirement of a prospective bidder to justify its technical responsiveness which is to be done by furnishing documentary proof of work order / contract agreement mentioning the scope of work along with completion certificate. He has also submitted that the present work is with construction of a ‘Process Unit’, which has been defined under Section 2 (1) (y) of the Petroleum and Natural Gas Regulatory Board (Technical Standards and Specifications including Safety Standards for City or Local Natural Gas Distribution Networks) Amendment Regulations, 2019 which reads as follows:

                   “A unit having integrated sequence of operation, physical and chemical and may involved preparation, separation, purification, or change in state, energy content or composition”

11. By drawing the attention of this Court to the affidavit-in-opposition filed on 17.01.2026, the learned counsel for the NRL has submitted that the completion certificate alone, which has been relied upon by the petitioner, would not be conclusive to determine the technical responsiveness of the petitioner. He has also submitted that in any case, the completion certificate is dated 20.08.2025, which is after the date of issuance of the present NIT. Be that as it may, he has submitted that the said completion certificate refers to two annexures with regard to the work involved. He has submitted that on an examination of the two annexures, it would show that the experience is of constructing refrigerated storage tanks. He has added that though EPC is mentioned, the said work cannot be treated to be a ‘process unit’ in terms of the definition, as mentioned above. He has also added that even on commercial evaluation, the petitioner would not be qualified as reliance by the petitioner has been made on the combined value of the works done which is not the criteria. He has submitted that in spite of all the aforesaid facts, the respondent corporation being a PSU has still extended the time so that the case of the petitioner could be duly considered.

12. In support of his submission, the learned Counsel for the NRL has relied upon the following case laws:

                   i. Tata Motors Limited Vs The Brihan Mumbai Electric Supply & Transport Undertaking (Best) and Ors. reported in AIR 2023 SC 2717.

                   ii. Technip Energies India Ltd. Vs The Union of India & Ors. [WA No. 258/2023 order dated 20.07.2023].

13. In the case of Tata Motors (supra), the restrictive scope of a writ Court in contractual matters has been reiterated. For ready reference, the relevant observations are extracted herein below:

                   “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.”

14. In the case of Technip Energies India Ltd, a Division Bench of this Court has laid down as follows:

                   “6. Determination of this Court:

                   ….

                   XVI. In the considered opinion of this Court, the employer NRL has acted reasonably in accordance with the tender condition. Such decision cannot be said to be perverse. The NRL being the owner of the project is the best entity to understand and the appreciate its requirements and interpret its document. …”

15. The learned counsel for the NRL has also informed this Court that the work of Storage Tanks in the project was already allotted to the petitioner.

16. Supporting the stand of the Refinery, Shri J. Roy, learned Senior Counsel appearing for the respondent no. 3 consultant has submitted that there is no error or illegality in the decision making process and the work in question has been sought to be done through his client. He has submitted that his client is having wide experience in the process of allotment of such work and all the decisions have been taken bona fide. He submits that the writ petition is required to be dismissed and the interim order is required to be vacated.

17. Shri Choudhury, the learned Senior Counsel in his rejoinder has submitted that under Clause 10.4 regarding documentation, there is a clear mention of submission of completion certificate, which the petitioner has done and therefore, the respondents would be precluded from taking a stand that they are not relying upon the completion certificate alone. He has also submitted that in the impugned communication, a wrong fact has been stated that the experience of the petitioner has been stated to be item rate contracts. He, however, adds that there is no prohibition that item rate contracts would not be taken into consideration in determining the technical responsiveness of a particular bidder. He has submitted that the impugned decision is mala fide and arbitrary which requires interference by this Court.

18. The rival submissions advanced by the learned counsel for the parties have been duly considered and the materials placed on record have been carefully examined. The contesting parties have also filed written submissions.

19. At the outset, this Court is reminded of the fact that the scope of interference by a Writ Court in exercise of its powers of judicial review, in contractual matters, is limited. In this connection, it is beneficial to refer to the principles laid down by the Hon’ble Supreme Court in the case of Central Coalfields Limited & Anr. vs. Sll-Sml (Joint Venture Consortium) & Ors. reported in (2016) 8 SCC 622 which are extracted herein below:

                   “47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal followed in Michigan Rubber.

                   48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.”

20. As per the settled principles, interference by a Writ Court can be done only when there is an error apparent in the decision making process, or if a case of mala fide is made out. In the instant case, the impugned communication dated 03.01.2026, by which the representation of the petitioner has cited certain reasons on the aspect of consideration of the certificates relied upon by the petitioner in support of its claim to be technically responsive. This Court has noted that under Clause 10.4.1 (a), regarding documentation, there is a primary requirement of submission of work order/contract agreement/contract document, along with completion certificate. For ready reference the aforesaid Clause is extracted herein below:

                   “a) For technical experience criteria, The Bidder shall furnish documentary proof in the form of copy of work order(s) / contract agreement(s)/ relevant pages of contract document(s) mentioning the scope of work along with completion certificate(s) issued by owner/consultant and approved Design/ drawing documents or any other certificate issued by owner/consultant certifying that work is commissioned, fulfilling the technical experience criteria.”

21. While there would be a requirement of submission of the complication certificate, the emphasis is on the aspect of the nature and scope of the work done by a prospective bidder to show its technical responsiveness. This Court is unable to accept the submissions made on behalf of the petitioner that completion certificate itself would be sufficient for the purpose of assessment of the technical responsiveness through a document. This Court, however, is of the view that though the completion certificate has been issued on 20.08.2025 of a work which was completed on 18.12.2022 unless the contents of such certificate is disputed, or the certificate itself is alleged to be forged or fabricated, this Court would not take a view that such certificate, per se, cannot be taken into consideration at all. However, this Court would hasten to add that the requirement of such completion certificate is to be done along with the documents pertaining to the works done by a prospective bidder to ascertain the scope of such works done.

22. To examine the decision making process whereby the bid of the petitioner has been held to be technically non-responsive, it is required for the Court to apply its mind to the documents enclosed by the petitioner in support of its technical responsiveness. The completion certificate dated 20.08.2025 refers to two annexures. While the petitioner asserts that it fulfills the requirement under Heading (b), the details of the work would show that those pertain to construction of storage tanks only. Though there is a reference that such storage tanks were constructed on an EPC mode the requirement is with regard to the ‘process unit’ which is statutorily defined as mentioned above. The process unit clearly lays down that it has to be a unit with integrated sequence of operation, physical and chemical which may involve preparation, separation, purification etc. This Court has also been informed that the work construction of Storage Tanks have already been allotted to the petitioner.

23. In the opinion of this Court, though the work said to have been done by the petitioner to demonstrate its technical responsiveness may be termed to be on EPC basis, the same would not fulfill the requirement of the technical responsiveness, more particularly of Clause (b), which the petitioner relies upon. As mentioned above, the experience under the aforesaid clause has to be with regard to “Any Process Unit”.

24. It is a settled position of law that the terms of a tender document being authored by the owner and it is the owner who would be the best interpreter of such clause. A prospective bidder cannot have the liberty to interpret any clause to suit its convenience. At this stage, this Court hastens to add that in case if the interpretation given by the owner is wholly unreasonable on the face of it, there may be a scope for taking another view. However, in the instant case, this Court is of the considered opinion that the interpretation given by the respondents cannot be stated to be unreasonable, arbitrary or illegal.

25. The case laws relied upon by the learned counsel for the petitioner would not come to the aid of the petitioner, inasmuch as, the point of law involved in the present case is different. As noted above, though in the impugned communication dated 03.01.2026, the experience certificate has been stated to be on the basis of Item Rate Contract and not EPC, this Court is of the view that even if it is held that the work done is under EPC, as mentioned in the certificate, the same pertains to construction of refrigerated storage tanks and cannot be read for the purpose of qualification for a ‘Process Unit’ which has been statutorily defined.

26. In the conspectus of the aforesaid discussions, this Court is of the opinion that no case for interference is made out and accordingly, the writ petition is dismissed. Interim order passed earlier, stands vacated.

27. Cost made easy.