Purbanchal Buildtech Pvt Ltd vs The State Of Assam And Anr

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GAHC010208462026

2026:GAU-AS:16326
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5180/2026
PURBANCHAL BUILDTECH PVT LTD
HOUSE NO 2 SEWALI PATH F A AHMED NAGAR SIX MILE GUWAHATI
KAMRUP METRO ASSAM 781022 REPRESENTED BY ONE OF ITS
DIRECTORS SRI BHASKAR GOSWAMI SON OF SRI AMBIKA PAD GOSWAMI
RESIDENT OF VILLAGE BARGAON PO BIHDIA DISTRICT KAMRUP ASSAM
781381
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE SPECIAL COMMISSIONER AND SPECIAL
SECRETARY TO THE GOVT OF ASSAM PUBLIC WORKS ROADS
DEPARTMENT DISPUR GUWAHATI 781006
2:THE CHIEF ENGINEER (EAP)
PUBLIC WORKS ROADS DEPTT.
ASSAM
FATASIL AMBARI
GUWAHATI 781025
2:THE CHIEF ENGINEER EAP
PUBLIC WORKS DEPARMENT ASSAM FATASIL AMBARI GUWAHATI 78102

BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT
For the petitioner : Mr. K.N. Choudhury, Sr. Adv
: Mr. R.M. Deka, Adv

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For the Respondents : Mr. P. Nayak, Addl. AG

Date of reserve of the judgment : 02.11.2026
Date of pronouncement of judgment : 06.11.2026

Whether the pronouncement is of the
operative part of the judgment? : Yes

Whether the judgment has been pronounced? : Yes


J UDGMENT & O RDER (C AV )

1. The present writ petition challenges the tender cancellation
notice No. CE/ASRIP/104/2026/69 dated 10.09.2026, issued by the Chief
Engineer (EAP), Public Works (Roads) Department, Government of Assam,
whereby the tender process relating to Road Safety Improvement Works on
State Highways and Major District Roads in Dibrugarh Division under the
Assam Secondary Road Network Improvement Project (ASRIP), more
particularly relating to Package No. ASRIP/A/RS-2A was cancelled. The
further challenge is to a fresh procurement notice, “Request for Bids (Small
Works)”, under the same package, dated 10.09.2026.
2. The principal challenge to the impugned action is based on
alleged non-compliance with Section 26 of the Assam Public Procurement
Act, 2017, and on the ground that the cancellation is arbitrary, as it is based
on allegations relating to another ongoing project without a reasoned
assessment of their relevance to the present tender.
3. The facts necessary for adjudication of the controversy may
first be noted.
4. Pursuant to the Notice Inviting Tender dated 10.02.2026, bids
were invited for Road Safety Improvement Works of State Highways and
Major District Roads in Dibrugarh Division under ASRIP. The package in
question relates to Package No. ASRIP/A/RS-2A . The estimated cost of the

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work was approximately Rs.22.88 crore.
The petitioner participated in the tender process along with another bidder,
Sri Numal Saikia. Upon evaluation, both bidders were found technically
qualified and accordingly, their bids were opened on 25.05.2026. The
petitioner quoted Rs.21,49,54.945/-, approximately 6.05% below the
estimated cost, and was ranked L-1. The other bidder quoted
Rs. 21,61,72,364/-, approximately 5.52% below the estimated cost, and was
ranked L-2.
The Bid Evaluation Committee recommended award of the work to the
petitioner at its quoted price.
5. The Tender Committee considered the matter in its meeting
held on 07.08.2026. The record reveals that some members of a political
party, through the local MLA, had lodged complaints against the petitioner
regarding the poor quality and delays in executing of the road construction
work under Asom Mala 2.0 in the Digboi LAC. Consequently, the District
Commissioner, Tinsukia, conducted an inquiry, which was followed by
another inquiry by senior officers of the Public Works Department.
The Tender Committee noted the inquiry reports and, referring to the
contractor's alleged poor performance in the ongoing project, recommended
retendering the work, which the highest competent authority also
approved.
6. Accordingly, by the impugned notice dated 10.09.2026, the
tender was cancelled, and on the same date, a fresh Notice Inviting Tender
for the said package was issued. Although the notice communicates the
decision to cancel, it does not set out the reasons for that decision.
7. Mr. K. N. Choudhury, learned Senior Counsel for the
petitioner, contends that the cancellation is unsustainable in law. It is
submitted that the tender conditions prescribed specific criteria for

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assessing a bidder's historical non-performance, and that the Tender
Committee could not disregard those criteria to introduce an independent,
unpublished disqualification based on allegations concerning another
project.
8. It is further contended that the inquiry material was relied
upon without affording the petitioner an opportunity to explain the
allegations, and that the findings of the inquiry, read as a whole, do not
support the conclusion that the petitioner was disqualified or that the entire
procurement process ought to be abandoned.
9. The learned Senior Counsel for the petitioner has also
pointed out that the Asom Mala 2.0 work was undertaken by PBZ-LZ (JV), in
which the petitioner claims to have a 51% participation stake. The
petitioner asserts that the joint venture work remains ongoing and that the
said contract has neither been terminated for non-performance nor has it
formally been determined to disqualify the petitioner from participating in
future procurement processes.
10. It is further contended that the departmental inspection report
also identified deficiencies on the part of departmental personnel and the
consultant, and recommended corrective measures for the ongoing project,
rather than the cancellation of the tender in question. The learned Senior
Counsel also argues that the action taken is disproportionate to the alleged
deficiencies and amounts to the blacklisting of the petitioner.

11. Per contra, Mr. P. Nayak, learned Additional Advocate General,
Assam, for the respondents, referring to the affidavit in opposition, argues
that the competent authority took the decision in view of complaints and
the findings of the inquiry into the petitioner's performance in the Asom
Mala 2.0 project.

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12. According to learned counsel, under Clause 3.2.1 of Section
III of the Bid Document, non-performance of a contract resulting from a
contractor's deficiency in an earlier contract is a valid ground for
disqualification, and the Tender Committee is competent to reverse the Bid
Evaluation Committee's recommendation. Therefore, the action of
cancellation of the tender cannot be termed as an arbitrary action
warranting interference in the exercise of the power of judicial review of this
Court, more particularly when such a decision is based on two inquiry
reports confirming non-performance of the petitioner in the contract under
Asom Mala 2.0.
13. According to the respondents, the petitioner had no vested
right to insist on the award of the contract merely because it emerged as
the lowest bidder, especially when no Letter of Acceptance had been
issued.
14. I have given anxious consideration to the arguments advanced
by the learned counsels for the parties. I have also considered the parties'
pleadings and the materials placed on record, including the tender
documents, the minutes of the Tender Committee meeting dated
07.08.2026, the inquiry reports relating to the work under Asom Mala 2.0,
the note-sheets, and the impugned cancellation notice.
15. It is well-settled that a bidder does not acquire an indefeasible
right to the award of a contract merely by being declared the lowest bidder.
The procuring authority retains the power to reject bids or cancel a
procurement process in accordance with the governing statute and the
tender conditions. However, the exercise of such power is not immune from
judicial review.
16. In Tata Cellular vs. Union of India, (1994) 6 SCC 651 ,
the Supreme Court explained the limits of judicial review in contractual

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matters and emphasized that the Court examines the legality of the
decision-making process rather than substituting its own assessment for the
administrative authority. In Jagdish Mandal vs. State of Orissa , (2017)
14 SCC 517 , the Supreme Court reiterated that interference in tender
matters is warranted only where the process is arbitrary or irrational and
where the public interest is affected. The Supreme Court reiterated the
same restraint in Michigan Rubber (India) Limited v. State of
Karnataka, (2012) 8 SCC 216 .
17. These decisions, however, do not confer an unrestricted
discretion upon the procuring authority. The procuring authority must act
within the governing legal framework, on relevant considerations, and for a
purpose which the law permits. Judicial restraint in public contract matters
does not require the Court to sustain a decision where the record fails to
disclose a rational connection between the material relied upon and the
action taken.
18. The Assam Public Procurement Act 2017 (hereinafter referred
to as the Act, 2017) recognizes the procuring entity's authority to prescribe
qualification requirements relating to a bidder's financial, technical, and
professional capacity and experience.
Section 7 of the Act, 2017 requires that the bidding documents set out the
qualification requirements and apply them uniformly.
Section 7(5) further requires the procuring entity to evaluate bidders'
eligibility and qualifications only in accordance with the requirements
specified in the bidding documents. More specifically, Section 14(6) of the
Act, 2017, expressly provides that the procuring entity shall not use any
criteria or procedure other than those mentioned in the bidding documents
when evaluating bids.
19. The legislative mandate, therefore, requires the procuring

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authority to evaluate bids by applying the criteria it prescribed and notified
to all prospective bidders.
20. The Assam Procurement Rules, 2020 (hereinafter referred to
as the Rules, 2020) reinforce this requirement.
Rule 15(2) provides that all bids shall be evaluated solely on the basis of
criteria specified in the bidding documents.
Rule 15(3) further makes it clear that price bids are to be evaluated only
amongst those bids which meet the eligibility, qualification and techno-
commercial criteria prescribed in the bidding documents.
The requirement is even more explicit in Rule 23(14)(v), which provides
that the evaluation of technical bids shall be based solely on the criteria
specified in the bidding documents and that such criteria shall not be
waived even where none of the bidders meet them. It further provides that
if none of the bids are technically acceptable or none meet the prescribed
criteria, the procurement process shall be cancelled and fresh bids be
invited without opening the financial bids.
Rule 23(14)(iv) also prohibits any substantive change to qualification
information.
21. The statutory and regulatory scheme thus makes it clear that
qualification criteria cannot be diluted during the evaluation process. Such a
requirement is an essential safeguard to ensure transparency, equal
treatment and a level playing field amongst all prospective bidders.
22. In the present case, Section 26 of the Assam Public
Procurement Act, 2017 expressly governs the power of cancellation.
Sub-section (1) of Section 26 permits the procuring entity to cancel the
procurement process at any time before the acceptance of the successful

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bid, for reasons to be recorded in writing.
Sub-section (3) requires the procuring entity to immediately communicate
the decision and the reasons for cancellation to all bidders who participated
in the procurement process.
Therefore, the statutory scheme recognizes the power to cancel; however, it
subjects its exercise to the requirement of recording reasons and
communicating the decision along with those reasons.
23. The requirement of recording reasons is not an empty
formality. It enables the authority to demonstrate that it took the decision
on relevant considerations and in accordance with law. Such a requirement
serves another purpose: it informs participating bidders of the basis on
which the process ended and allows the decision to be examined against
the applicable statutory and tender framework.
24. Therefore, these two requirements must be given effect to. An
internal administrative decision does not dispense with the statutory
obligation to communicate the reasons for cancellation. In the present
case, the cancellation notice dated 10.09.2026 merely communicates the
decision to cancel the tender. It does not disclose the reasons for such
cancellation.
25. Before this Court, the respondents rely upon the minutes of
the Tender Committee meeting dated 07.08.2026, which refer to the
complaints and inquiry reports concerning the petitioner’s performance in
the ongoing Asom Mala 2.0 project.
26. A perusal of the minutes discloses the broad considerations
the Committee weighed. Accordingly, this Court cannot hold that the
departmental record contains no rationale.
27. However, the minutes of the meeting dated 07.08.2026 and
the inquiry report reveal that the Tender Committee's concerns do not

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demonstrate a reasoned application of the tender conditions or adequately
explain why those concerns warranted the cancellation of the entire
procurement process. In any event, it is admitted that the reasons were
not communicated either through the impugned cancellation notice or by
any other means required under Section 26(3) of the Act of 2017.
28. Now, coming back to the inquiry materials, the materials
placed before this Court show that the District Commissioner's report
recorded allegations and deficiencies concerning the quality of work,
including aspects of bituminous layers, concrete works, drainage, and
related construction activities. It also refers to a work stoppage arising from
a dispute.
29. For the sake of completeness, this Court proposes to
reproduce the relevant portion of the inquiry report of the District
Commissioner as follows:
5 . Observations/Findings
a. Quality Audit
Layer Thickness Deficit : At multiple inspection points, the compacted
thickness of the bituminous and non-bituminous layers was found to be below
the minimum specifications outlined in the estimates.

Material Inconsistency : Certain samples contained an excessive percentage
of fine aggregates, exceeding permitted limits and compromising the road's
load-bearing capacity. Additionally, the RCC box culverts suffered from
improperly proportioned concrete materials and steel alloys that failed to meet
required specifications, thereby undermining both the quality and structural
integrity of the culverts.
Sub-base Instability : In specific sections where sample was extracted, the
Water Bound Macadam (WBM) layer did not meet the required composition,
posing a risk of premature cracking and potholes.
Drainage Infrastructure Deficiencies : Inspections of the existing drainage

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system revealed multiple structural and geometric deficiencies, Geometrically,
the drains exhibited poor alignment and uneven flooring. Structurally, the
concrete sections demonstrated significant honeycombing, and the mandatory
weep holes were entirely omitted from the construction. These issues
collectively compromise both the hydraulic efficiency and structural integrity
of the drains.
It is also to be noted that the deficiencies observed were informed by the
Consultancy Team to the authority via a Monthly Progress Report or on daily
basis through WhatsApp group of the PWRD Department (Ref A-VII)
b. Inventory and Status Report of Paver Blocks
A total of 9,86,700 paver blocks were originally installed over an area of
25,300.00 square meters. The Executive Engineer (EE), PWRD, has provided
the following status update regarding their current utilization and disposal
(Ref Annexure VIII & IX):
Damaged Blocks : Approximately 40% of the total inventory was damaged
due to aging and the dismantling process.
Stolen Inventory : Around 4,00,000 blocks were reported stolen, for which
FIR has been registered with the Officer-in-Charge (OC), Digboi.
Diverted/Utilized : A large portion of the paver blocks amounting to about
82000 has been repurposed and utilized in various other government and non-
government projects.
Departmental Custody : The PWRD, Digboi & Margherita TR Division,
Tinsukia currently retains custody of approximately 28,000 dismantled blocks.
Pending Dismantling : An additional 80,000 blocks remain on-site waiting to
be dismantled.
c. Allegation of misconduct by Matlebuddin Ahmed
The deep-seated dispute between Bhaskar Goswami, the contractor and
authorized representative of PBPL and Manas Protim Dahutia, the petitioner-
representing the BJYM, Tingrai Mandal Committee-involves long-standing
allegations of misconduct against Matlebuddin Ahmed, along with a history of
reported verbal and physical altercations. These claims are extensively
documented in numerous petitions submitted by both parties to various

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government agencies (Ref-Annexure IV, V, VI). The animosity between the
two sides escalated further on May 14th, 2026, when a heated argument broke
out during the course of the official inquiry. Given the volatile nature of the
conflict, it is recommended that the police administration thoroughly
investigate the mutual allegations of assault and threats, strictly adhering to
established legal rules and procedures.
6. Recommendations
The integrity of the Asom Mala 2.0 project rests on strict adherence to quality
and timely completion. Minor patches or superficial fixes will not suffice
where the structural foundation is compromised.
Actionable items :
i. Total reconstruction is carried out
in every section where sample testing/investigation indicated a deficit
including the drain at Km 16+300-16+350 RHS and the RCC Bax culverts at
Km 18+187 RHS and Km 12+380 LHS.
ii. Accurate layer assessment of the
entire stretch at regular intervals using appropriate equipment such as DBM
Core cutting machine and other similar testing instruments.
iii. The Implementing
department/agency should require the contractor to account for the poor
workmanship and the use of substandard materials on the project.
iv. Reshuffling of the PWRD officials
currently on this project is a move that could rebuild public trust in the
administration.
The following steps should be prioritized before resuming construction of the
remaining percentage of work:
1. Dismantling of Non-Compliant Sections : The identified "deficit areas"
must be stripped back to the sub-grade level.
2. Relaying as per Estimates : Fresh materials must be laid in strict
accordance with the approved plan and estimates to ensure the road can
handle projected traffic volumes.
3. Enhanced Supervision : A more rigorous oversight mechanism should be

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placed during the reconstruction phase to prevent a recurrence of these lapses.
4. Precautionary works : Proper signages and barricading at vulnerable
locations using bamboo and reflective materials for visibility during dark.
30. The subsequent departmental inspection report recorded
certain deficiencies requiring rectification, including shortcomings in the
culvert and drainage works and workmanship issues. At the same time, the
report noted that certain measurements conformed to the prescribed
specifications, found no major material inconsistencies in the aspects
examined, and identified deficiencies in supervision and other areas for
which departmental personnel and the consultant were also found
responsible. Consequently, the report recommended corrective and
contractual measures for the ongoing project.
31. For the sake of completeness, this Court proposes to
reproduce the relevant portion of the Inspection Report:
a. Quality Audit
The field inspection has been carried out with the PWRD officials of Digboi &
Margherita TR Division headed by Sri Achyut Kumar Baruah, EE, Sri Binod
Kr. Chaubey, AEE, Digboi TR Sub Division, officials from RITES Ltd
(Consultancy Services for Third Party Monitoring & Quality Control under
Asom Mala 2.0) -Sayan Barman (RE), Suraj Kashyap (Asst. Highway
Engineer), Ramesh Kr. Jha (QC Engineer) and the contractor's representative,
headed by Chinmay Shivam, Project Manager, PBPL, and the para-wise test
findings and observations are as follows: (Reports & photographs are enclosed
separately).
Layer Thickness:
As per above findings, the compacted thickness of the bituminous and non-
bituminous layers were found to be as per the specified thickness as outlined in
the DPR provisions, except for some minor variations which may be adjusted
during the execution of the next overlay layers to maintain the overall crust
thickness as per contract provisions.
Material Inconsistency:

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As above, no major noticeable material inconsistency recorded except some
minor variation, which may be ignored comparing to the executed volume of
work.
Sub-base Instability :
As above, no major Sub-Base/ Base Instability has been noticed except some
minor variation which may be ignored comparing to the executed volume of
work.
Drainage Infrastructure Deficiencies :
As above, some noticeable poor workmanship has been detected and
appropriate remedial measures should be taken hy dismantling and re-
constructing the damage wing walls of Bax Culvert at Km 12+400 (LHS) as
well as dismantling and re-constructing the defective drain cum foot path
work....
Inventory and Status Report of Paver Blocks
As above, it is found that the concern AEE/EE, PWRD, has not handed over the
work site to Contractor (Possession of the site) as per contract agreement vide
Section-3: Condition of Contract, Clause No.21 & Section 4: Contract Data,
Clause No.14. As such, the AEE of Digbol TR Sub-Division, Digbol has lodged
one FIR for the stolen ICBP blocks at the Digbei Police Station on dated
19/03/2026. (Ref-Annexure-10). Further, the AEE/EE has not maintained any
proper Numerical Accounts for safe custodian of the ICBP blocks by the
Contractor during the construction period.
C. Allegation of misconduct by Matlebuddin Ahmed
The inspection has been conducted and limited in view of the allegations
regarding slow progress, poor quality of execution and sub-standard work as
communicated by the District Commissioner, Tinsukia and therefore allegation
of any misconduct by Sri Matlebuddin Ahmed has not been covered in this
Inspection.
RECOMMENDATION/ACTIONABLE ITEMS AS PER TERMS OF
REFERENCE:
1. Deficiencies and defects in the project execution:
i.Poor management and lack of initiative from the part of contractor have been

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reported by the EE, PWRD for shifting of W/S pipeline/Utility shifting/shifting
of Gas pipe lines/shifting of telephone cable lines etc. resulting un-necessary
delay in execution of drain cum foot path from Km 0+00 to Ktm 2+600.
ii.Minor deficient in DBM layer thickness at Km 4+980 & Km 15+220 (RHS)
recorded.
iii. Damage wing walls of Box Culvert at Km 12+400 (LIIS) observed.
iv. Poor workmanship in construction of drain cum foot path work for a length
of 20.00m (approx.) at Km 16+400 (RHS) observed.
v.Deficient execution of Mandatory man-holes and mandatory weep holes in
drain cum foot path construction at Km 16+400 (RHS) observed.
vi.Honey combing in all RCC Box culverts has been observed.
vii.Minor deficient in GSB layer thickness at Km 19+980 recorded.
viii. Noticeable slow progress in construction of drain cum footpath works has
been observed (partially completed 0.30km out of 6.50km).
ix. Non-co-operative from the part of contractor with the Third-Party
Monitoring and Quality Control Consultant (RITES Ltd) leading to poor quality
of workmanship resulting non-rectification of defects and improper reporting of
quality control reports and documentation.
x.Poor management and lack of proper guidance from the part of EE, PWRD in
dealing with Contractor an[4:50 pm, 2/11/2026] Nayana: and Third-Party
Monitoring and Quality Control Consultant (RITES Ltd).
xi. The EE of Digboi & Margherita TR Division, Tinsukia was found reluctant
to release payment to contractor's RA Bills ignoring the role and responsibilities
of Third-Party Monitoring and Quality Control Consultant (RITES Ltd).
xii. The EE of Digboi & Margherita TR Division, Tinsukia was found reluctant
to release the payment to Third-Party Monitoring and Quality Control
Consultant (RITES Ltd) without assuring their services provided as per clause 4
of Term of Reference (Scope of Services) of the tender agreement.
4. To examine the role and responsibilities of the Consultant Supervision
Service, namely RITES Ltd, in relation to the execution, supervision and
monitoring of the project works .
The Third-Party Monitoring and Quality Control Consultant (RITES Ltd) is

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mainly responsible for quality of works of the project in terms of deficiency and
defective works. It is also observed that there is lack of communication on part
of Quality Control consultant with Contractor & PWRD officials about the
defective works which further led to deterioration in quality of works. It is
found that no proper Quality Control Register as well as no proper
documentation has been maintained by the Quality Control Consultant
regarding rectification of defective works etc. The Third-Party Monitoring and
Quality Control Consultant, RITES Ltd is using the Monthly Progress Report as
a media to inform the Executive Engineer about the grievances and field data
regarding defect/rectification etc. instead of directly writing to the Contractor
with an intimation to Executive Engineer and higher authority. As a whole, it
can be inferred that the third-party monitoring & quality Control Consultant is
not taking any authority, provided as per clause 4 of Term of Reference (Scope
of Services) of the tender agreement.
32. In exercising its power of judicial review, this Court is not
called upon in the present proceeding to pronounce on the technical
correctness of each observation in the reports or to determine the
respective contractual liabilities arising out of the Asom Mala 2.0 project.
However, the report must be examined only to the extent necessary to
ascertain whether the decision to cancel the present tender was rationally
supported by the materials relied upon.
33. Read as a whole, the reports disclose concerns about the
execution of ongoing work and identify deficiencies requiring attention;
however, they do not, by themselves, establish that the petitioner was
disqualified from participating in the present tender or that cancelling the
entire procurement process was a necessary consequence of the findings.
34. In this regard, the bidding documents are particularly
significant.
Section III of the Bid document deals with the Evaluation and Qualification
Criteria;

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Under Sub-clause 2.1, it sets out the requirement relating to the history of
non-performing contracts.
The requirement stipulates that non-performance of a contract should not
have occurred as a result of default on the part of the contractor since
01.01.2020.
The accompanying footnote defines non-performance by reference to the
employer's decision on the contractor’s default, subject to the conditions
specified therein.
Form CON-2 under Section IV of the bidding documents correspondingly
requires the bidder to make a declaration regarding historical contract non-
performance and, where applicable to furnish particulars of the contract and
the reasons for such non-performance.
35. The aforesaid provisions indicate that the tendering authority
prescribed a specific framework for assessing a bidder's historical non-
performance. The criteria are not based on any complaints having been
made against a contractor. At the same time, it does not equate every
deficiency noticed during contract execution with non-performance resulting
from a default on the Contractor's part.
36. Therefore, in the facts of the present case, the distinction
between a complaint, a technical deficiency requiring rectification, and non-
performance within the meaning of the stipulated qualification criteria in the
bid document is material.
Therefore, the Tender Committee had to examine the inquiry material in the
light of the language of sub-clause 2.1 and determine whether the facts
established therein attracted the criteria prescribed by the bidding
documents.
37. It is true that the inquiry reports record certain deficiencies in
the execution of the Asom Mala 2.0 project. The subsequent departmental

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report also records that the works are generally in accordance with the
prescribed specifications, identifies deficiencies requiring rectification, and
refers to shortcomings in supervision and other aspects involving both
departmental personnel and the consultant.
However, this Court cannot adjudicate upon the technical correctness of
those observations or the contractual responsibility of the parties in relation
to that project or any deficiency that existed. This Court is concerned with
whether those findings could legally form the basis for treating the
petitioner as a contractor with a history of non-performance, which,
admittedly, is the reason for cancelling the procurement process entirely.
38. In this regard, the provisions of section 7(5), 14(6) of the Act, 2017
read with Rules 15(2), 15(3) and 23(14)(v) of the Rules, 2020 mandate that
the eligibility and qualification of bidder must be assessed strictly in
accordance with the criteria prescribed in bidding documents and that no
additional or unnotified criteria can be introduced during the evaluation
process by the Tender Committee exercising its role in the approval process
for procurement under ASRIP as conferred upon it under project operation
manual of ASRIP.
39. The procuring authority, having prescribed specific criteria under
sub-clause 2.1 of section III of the bidding documents for historical contract
non-performance, was required to examine the inquiry findings within the
parameters of those criteria. A mere complaint and adverse observation
regarding execution, or a deficiency requiring contractual rectification,
without a determination satisfying the stipulated condition, cannot be
equated with non-performance within the bidding documents.
40. This court therefore finds that the material relied upon by the
Tender Committee does not demonstrate that the petitioner attracted the
prescribed criteria of historical contract non-performance to overrule the

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recommendation of the bid evaluation committee. Therefore, the decision
to cancel the tender, founded on a general assessment of alleged poor
performance without undertaking such an examination, cannot be sustained
merely on the basis of the Tender Committee's power under the ASRIP
manual and the procuring authority's general discretion. Such discretion
must be exercised within the statutory and regulatory framework governing
the procurement process, that too without there being any defect in the
tender process and/or general policy change
41. There is a further aspect that cannot be overlooked.
The Tender Committee recorded the petitioner's alleged poor performance
in the ongoing Asom Mala 2.0 project as the reason for recommending
rebidding. If it is left unqualified and treated as an established
determination of the petitioner's unsuitability, such a reason may have
consequences beyond the cancellation of the present tender.
In a fresh tender, the same assessment may be relied upon to question the
petitioner's eligibility at the threshold. The assessment may also be invoked
in subsequent procurement processes.
Therefore, the concern is not confined solely to the petitioner's claim to be
considered in the cancelled tender; it also relates to the potential continuing
consequences of an adverse assessment not shown to have been made in
accordance with the prescribed criteria.
42. The impugned cancellation is admittedly not based on a
general policy change or a defect affecting the procurement process itself.
The Tender Committee recorded the reason as the petitioner's alleged poor
performance in a separate ongoing project. The inquiry findings were relied
upon to question the petitioner's suitability for the tender process, despite
its technical qualifications and its position as the lowest bidder.
In these circumstances, before relying on the disputed adverse findings to

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the petitioner's prejudice, fairness required that the petitioner ought to have
been given a reasonable opportunity to explain its position and that, if
submitted, the explanation ought to have been considered in accordance
with the tender conditions.
43. The decision also fails to test the proportionality.
The tender committee's concern relates to the petitioner's performance in
another ongoing project. The authority had to consider whether the
material disclosed any failure that attracted any prescribed qualification
criteria and whether that concern justified cancelling the entire procurement
process. The petitioner was found technically qualified, and its financial bid
was recommended for acceptance. In these circumstances, the impugned
action was disproportionate, as it did not first establish relevant deficiencies
in the petitioner’s eligibility under the tender conditions. The decision does
not explain why such an extreme course was necessary.
44. The respondents are correct that the petitioner's position as L-
1 did not confer an automatic right to award the contract. However, such
proposition does not answer the challenge raised in the present petition.
The petitioner does not succeed in the present proceeding merely because
it quoted the lower price; its challenge succeeds because the exercise of the
statutory power of cancellation must conform to the governing law. The
absence of an indefeasible right to contract does not place the procuring
authority's decision beyond the remit of Article 14 of the Constitution of
India.
45. Applying the principles laid down in Tata Cellular (supra),
Jagdish Mandal (supra), and Michigan Rubber (supra), this Court does
not determine whether the petitioner's performance in the Asom Mala 2.0
project was satisfactory or whether the technical deficiencies recorded in
the inquiry reports were ultimately established. However, the facts require

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an examination as to whether the Tender Committee assessed the inquiry
report and relied upon it in accordance with the tender conditions, and
whether the decision to cancel the tender was supported by reasons that
rationally justified that course.
46. To repeat, the Tender Committee recorded a general concern
about the petitioner's performance in another project, but the record does
not show that it applied the prescribed historical non-performance criteria.
Further, the cancellation notice does not state the reasons for cancellation,
as required under Section 26(3) of the Assam Public Procurement Act,
2017; no other means was also adopted for compliance with such statutory
mandate.
The adverse assessment relied upon may prejudice the petitioner's
participation in fresh tenders and future procurement processes, without
any independent determination of its default under the applicable criteria.
The cumulative effect of these deficiencies renders the decision arbitrary
and unsustainable under Article 14 of the Constitution of India. Accordingly,
the impugned cancellation notice dated 10.09.2026 and the fresh tender
process initiated vide NIT dated 10.09.2026 stand set aside and the writ
petition stands allowed. The respondents shall now proceed in accordance
with the NIT dated 10.02.2026.
47. Parties to bear their own costs.

JUDGE
Comparing Assistant