01Facts
The petitioner and opposite party No. 6 participated in a tender for construction of Banijyakar Bhawan, Bhubaneswar, on a turnkey basis.
pp. 4–6After technical evaluation, seven bidders’ financial bids were opened. Opposite party No. 6, whose lump-sum bid was ₹175 crore, was ranked L-1; the petitioner’s bid of ₹183.11 crore was ranked L-2.
pp. 4–6, 55–56The petitioner sought, among other reliefs, to quash the financial evaluation and have its bid treated as L-1.
pp. 3–402Issues
i.Whether Clause 36 of Appendix-IX, Volume II of the OPWD Code required rejection of opposite party No. 6’s bid as more than 15% below the tender value, despite the tender being for a turnkey project and requiring lump-sum bids.
pp. 28–30, 33–36ii.Whether the tendering authority’s evaluation and declaration of opposite party No. 6 as L-1 was arbitrary, discriminatory, or otherwise unlawful so as to warrant interference under Articles 226 and 227.
pp. 14–16, 47–4903Law Applied
Under Articles 226 and 227, judicial review in tender matters generally examines the decision-making process, not the merits of the commercial decision; intervention is warranted where the process or decision is mala fide, arbitrary, irrational, perverse, or contrary to public interest. The employer that framed the tender is ordinarily best placed to interpret its requirements, and courts defer to that interpretation absent mala fides or perversity (Tata Cellular v. Union of India; Jagdish Mandal v. State of Orissa; Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd.).
pp. 18–28, 37–39Essential tender conditions must ordinarily be followed, but the terms of the tender govern the evaluation and cannot be displaced by importing unrelated provisions of the OPWD Code.
pp. 24–28, 46–47The Court also treated the OPWD Code provisions at issue as executive instructions rather than statutory rules, noting that a breach of such instructions does not, by itself, confer an enforceable right on a bidder (G.J. Fernandez v. State of Mysore; Akshay Kumar Rout v. State of Odisha).
pp. 39–46Provisions in the judgment · 6
Limited Liability Partnership Act, 2008 Section 36Section 6.3.15XXXIV
Punjab National Bank Officer Employees’ (Discipline and Appeal) Amendment Regulations, 2023 Section 123Section 2Section 3
04Reasoning
The Court found that the tender required each bidder to submit a total price as a lump sum for execution of the turnkey work, while the RfP did not specify an estimated contract value against which the 15% threshold in Clause 36 could be calculated.
pp. 28–30, 33–34The petitioner had treated the stated amount put to tender and the bid-security figure as establishing the estimated contract value, but the Court accepted the tendering authority’s distinction between those figures and the lump-sum price to be quoted.
pp. 29–31It also noted that the petitioner’s percentage comparison appeared in its own document, whereas the official evaluation ranked bidders by their quoted lump-sum amounts.
pp. 10–11, 55–56As all seven responsive bids were evaluated on the same basis, and no mala fides, unequal treatment, or perversity was established, the Court declined to substitute its view for that of the tendering authority.
pp. 34–38, 47–4905Holding
The Court held that the petitioner had not established that Clause 36 applied to this turnkey, lump-sum tender or that the financial evaluation was arbitrary or unlawful.
pp. 55–56It dismissed the writ petition, vacated the interim order, disposed of any pending interlocutory applications, and made no order as to costs.
pp. 55–56Original Court PDF
M/S SUNIL KUMAR AGRAWAL LLP, RAIPURvsSTATE OF ODISHA
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