M/S Sbb Construction Pvt.Ltd, Bhadrak v. State of Odisha

Orissa HC30 Oct 2025WP(C)/23513/2025

Case brief

AI extract

What is this about?

EMD refund; second-lowest bidder; L-1 bidder challenge pending before apex Court; cancellation of earlier tender and re-tender; road works MDR-70 Thakurmunda-Dangadiha-Podadiha-Udala-ManitriBaisinga-Rupsa (61/000 KM to 84/000 KM); State of Odisha; W.P.(C) No.23513 of 2025; High Court of Orissa at Cuttack; Harish Tandon, Chief Justice; M.S. Raman, Judge; disposed on 30.10.2025 with direction to refund EMD within two weeks; no statute or precedent cited in the order; EMD quantum not disclosed.

What did the court decide?

Refund of the EMD submitted by the petitioner (as condition precedent for participation in the tender) within two weeks from the date of communication of the order. ¶¶27

M/S Sbb Construction Pvt.Ltd, Bhadrak Vs State of Odisha — Orissa HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Refund of the EMD submitted by the petitioner (as condition precedent for participation in the tender) within two weeks from the date of communication of the order.

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Issue for consideration

Whether the EMD submitted by the second-lowest (L-2) bidder must be refunded where the first-lowest (L-1) bidder is pursuing the matter before the apex Court, such that the petitioner would not be awarded the contract.

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Ratio / Principle

Even where no challenge is shown to the tender, the authority cannot retain the EMD submitted by the second-lowest bidder; the second-lowest bidder's right fructifies only if the first-lowest bidder refuses or declines to execute the work.

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Key takeaways

Since the first-lowest bidder is pursuing his remedy before the apex Court, he is ready and willing to perform the work, and there is every possibility that the petitioner would not be awarded the contract; the petitioner had also signified his conscious decision to withdraw from participation.ratio¶¶23
The authorities were directed to refund the EMD submitted by the petitioner as a condition precedent for participation in the tender process, within two weeks from the date of communication of the order.ratio¶¶24

Detailed headnote1 paragraphs

Writ petition (W.P.(C) No.23513 of 2025, decided 30.10.2025) by the second-lowest (L-2) bidder, M/s. SBB Construction Pvt. Ltd. Bhadrak, in a tender floated for widening and strengthening of the Thakurmunda-Dangadiha-Podadiha-Udala-ManitriBaisinga-Rupsa Road (MDR-70) from 61/000 KM to 84/000 KM under State plan, floated after cancellation of an earlier tender. The successful bidder of the earlier tender had challenged the cancellation and the fresh tender before the High Court and won; his further challenge, pressed by the L-1 bidder of the fresh tender, was pending before the apex Court. Held (Harish Tandon, C.J. and M.S. Raman, J.): even absent any challenge to the tender, the authority cannot retain the EMD of the second-lowest bidder, whose right fructifies only if the first-lowest bidder refuses or declines the work; with the L-1 bidder prosecuting his case before the apex Court (implying readiness and willingness to perform), the petitioner would not be awarded the contract, and he had already signified his intention to withdraw. Authorities directed to refund the EMD within two weeks of communication of the order; writ petition disposed of.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.23513 of 2025

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M/s. SBB Construction Pvt. Ltd. Bhadrak

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…. Petitioner

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Mr. Sidharth Shankar Padhy, Advocate -Versus-

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State of Odisha and others

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…. Opposite Parties

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Mrs. Suman Pattanayak, Addl. Govt. Advocate

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CORAM:

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HON’BLE THE CHIEF JUSTICE AND

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HON’BLE MR. JUSTICE MURAHARI SRI RAMAN

ORDER

Order No.

02.

30.10.2025

1. Admittedly, the writ petitioner was declared as a second lowest

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bidder in the tender floated for improvement by widening and strengthening of Thakurmunda-Dangadiha-Podadiha-Udala-ManitriBaisinga-Rupsa Road (MDR-70) from 61/000 KM to 84/000 KM under State plan. The said tender was floated by the authority after cancelling the earlier tender for the similar work.

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2. The successful bidder of the earlier tender challenged not only the order of cancellation of the said tender but floating of the instant tender by the authorities consequent upon the cancellation thereof by filing the writ petition before this Court. The writ petition was decided in favour of the said tenderer and ultimately, the matter has

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reached the apex Court.

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Page 1 of 3

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3. We are given to understand that the apex Court is in seisin of the matter. The challenge to the order of the High Court is made by the L-1 bidder in the instant tender and the petitioner has come up with the plea that since he is adjudged as the second lowest bidder

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and the first lowest bidder is pursuing the matter in any given situation, he would not be awarded the contract and, therefore, the EMD submitted by him should be refunded.

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4. We find logical justification in the stand of the petitioner for the reason that even if no challenge is shown to the tender, the authority cannot retain the EMD submitted by the second lowest bidder. The right of the second lowest bidder would only fructify in the event when the first lowest bidder refuses or declines to execute the work. Since the first lowest bidder is pursuing the remedy and has approached the apex Court, it implies that he is ready and willing to perform the work and there is every possibility that the petitioner would not be awarded the contract. The petitioner has also signified his conscious decision to the authorities that in all conceivable situations, he would not be regarded to have participated and wanted to resile therefrom.

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5. In such view of the matter, we direct the authorities to refund the EMD submitted by the petitioner as a condition precedent for

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Page 2 of 3

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participation in the tender process within two weeks from the date of the communication of this order.

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6. Accordingly, this writ petition is disposed of.

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(Harish Tandon) Chief Justice

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(M.S. Raman) Judge

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Sisira

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Signature Not Verified

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Digitally Signed Signed by: SISIRA KUMAR BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Oct-2025 18:54:18

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M/S Sbb Construction Pvt.Ltd, Bhadrak v. State of Odisha

Case brief

What is this about?

What did the court decide?

M/S Sbb Construction Pvt.Ltd, Bhadrak v. State of Odisha

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Procedural history

Parties & counsel

Coram

Case details

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