Gopal Kumar Vs The State of Bihar

... ... Respondents ====================================================== Appearance : For the Petitioner : Mr. Shekhar Singh, Sr. Advocate with Mr. Kumar Anjaney Sharma, Advocate Mr. Shubham, Advocate Mr. Ranvir Pratap Singh, Advocate Ms. Shambhavi Singh, Advocate For the Respondent No.10 : Mr. Anand Kumar Ojha-1, Advocate For the Respondent No.11 : Mr. Bachan Jee Ojha, Advocate For the Respondents : Mr. Amish Kumar, AC to AG ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and

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HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

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Date : 02-04-2026

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 2/17

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Heard learned counsel for the parties.

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In the present petition, the petitioner has prayed for the

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following relief(s):-

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"i. Issuance of an appropriate writ/s, order/s or direction/s, particularly in the nature of writ of Certiorari for quashing and setting aside the impugned decision/order dated 06.10.2025 and 02.12.2025 passed by the Technical Evaluation Committee, Rural Works Department whereby the Petitioner's technical bid submitted under Notice Inviting Tender Bearing No. RWD/SSY/HQ/ET/202526 Dated 28.07.2025 for construction and six year operation & management including surface renewal for rural road/bridge under component of Sulabh Samparakta Yojana (SSY) described as 'Konipar Baba Sthan se Variyarpur Tak aur Gopalpari ka Konipur PWD Sadak tak Path Nirman(Tender ID-143842) has been arbitrarily, illegally and without authority of law disqualified from the technical bid stage.

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ii. Issuance of an appropriate writ/s, order/s or direction/s, particularly in the nature of writ of Mandamus to Declare the Petitioner, technically qualified for participation in the tender process under Notice Inviting Tender Bearing No. RWD/SSY/HQ/ET/2025-26 Dated 28.07.2025 for construction and six year operation & management including surface renewal for rural road/bridge under component of Sulabh Samparakta Yojana (SSY) described as 'Konipar Baba Sthan se Variyarpur Tak aur Gopalpari ka Konipur PWD Sadak tak Path Nirman (Tender ID-143842) and to include the Petitioner's bid in the financial bid evaluation stage of the tender process without any further delay.

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 3/17

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iii. Issuance of an appropriate writ/s, order/s or direction/s, particularly in the nature of writ of Mandamus, for declaration of respondent no.11 to be the lowest bidder Notice Inviting Tender Bearing No. RWD/SSY/HQ/ET/2025-26 Dated 28.07.2025 for construction and six year operation & management including surface renewal for rural road/bridge under component of Sulabh Samparakta Yojana(SSY) described as 'Konipar Baba Sthan se Variyarpur Tak aur Gopalpari ka Konipur PWD Sadak tak Path Nirman'(Tender ID-143842) to be illegal, arbitrary, malafide, and void ab initio, being the outcome of a tainted and procedurally defective evaluation process. iv. Issuance of an appropriate writ/s, order/s or direction/s, particularly in the nature of writ of Mandamus to direct the respondent authorities to reconsider the Petitioner's bid by declaring the Petitioner technically qualified, open the Petitioner's financial bid, and thereafter award the tender in favour of the Petitioner.

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v. To direct the Respondents restraining them from giving effect to or executing any work order/contract agreement pending final adjudication of the present writ petition.

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vi. Any other relief/reliefs as Your Lordships may think fit and proper in the facts and circumstances of the case."

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The brief facts of the case are that the Rural Works

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Department, Government of Bihar, issued a Notice Inviting Tender dated 28.07.2025 bearing No. RWD/SSY/HQ/ET/2025-26 for construction and six-year operation and maintenance of a rural road/bridge project under the Sulabh Samparakta Yojana (SSY). Pursuant thereto, the petitioner

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 4/17

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participated in the tender process and submitted its bid within the stipulated time. Upon evaluation of technical bids, the Technical Bid Evaluation Committee, in its meeting dated 08.09.2025, declared the petitioner technically qualified.

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Subsequently, a complaint dated 13.09.2025 was submitted by another bidder alleging non-disclosure of certain prior work by the petitioner. On the basis of the said complaint, a show cause notice dated 16.09.2025 was issued to the petitioner, to which the petitioner submitted a detailed reply on 18.09.2025 along with supporting materials, stating inter alia that the work referred to in the complaint had already been proposed to be dropped by the competent authority and did not constitute an existing or ongoing commitment as on the date of bid submission. However, upon re-evaluation of the technical bid on 06.10.2025, the petitioner was technically disqualified by invoking Clause 4.6(3) of the CMBD on the ground of alleged non-disclosure of ongoing work. Further, in a subsequent re-evaluation held on 02.12.2025, the petitioner continued to be technically disqualified, and financial bid was opened.

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Vide order dated 29.01.2026, notice was issued to respondent Nos. 10 and 11. In pursuance thereof, learned counsels have entered appearance on behalf of respondent Nos. 10 and 11 by filing

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 5/17

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Vakalatnama, which is taken on record. However, till date, no counter affidavit has been filed on behalf of the private respondents.

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Learned counsel for the petitioner submits that the contention of the respondent-Department that there was alleged nondisclosure of work under Agreement No. 23/SBD/2020-21 is wholly misconceived, inasmuch as the said work, namely Sharma PMGSY Road to Godh Tola Harijan Tola Tak under Lakhisarai Division , had already been proposed to be dropped by the concerned Executive Engineer vide letter dated 18.06.2024, prior to the last date of submission of the bid. Agreement No. 23/SBD/2020-21, the details whereof are reproduced as

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under:-

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SI. No.	Name of Road	Lenth (KM)	Constru ction Cost	Maintanance Cost	Agreement Value	Block
2.	Sharma PMGSY Road to Gadh Tola Harizan Tola Tak	1.500	87,73,06 1	11,79,687	99,52,748	Barahiya

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It is further submitted that the Executive Engineer, Rural Works Department, Lakhisarai Division, vide Letter No. 1876 dated 29.08.2025 reiterated the letter dated 18.06.2024 and, had recommended dropping of the said work. As such, no subsisting obligation remained upon the petitioner. Extract of letter dated 18.06.2024 is reproduced hereinbelow:

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dk;Zikyd vfHk;ark dk dk;kZy; xzkeh.k dk;Z foHkkx] dk;Z izeaMy] y[khljk;

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 6/17

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i=kad 1125¼vuq0½ y[khljk;@fnukad%& 18@06@24

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izs"kd] bZ0 vk'kqrks"k dqekj dk;Zikyd vfHk;ark xzkeh.k dk;Z foHkkx]

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dk;Z izeaMy y[khljk; lsok esa] v/kh{k.k vfHk;ark xzkeh.k dk;Z foHkkx] dk;Z vapy] eqaxsjA

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fo"k;%& MMGSY-NDB BRICS ;kstukUrxZr iFkksa dks Drop djus ds laca/k esaA

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egk'k;]

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mi;qZDr fo"k; ds laca/k esa dguk gS fd dk;Z izeaMy y[khljk; vUrxZr MMGSY-NDB BRICS ds fuEu iFkksa dks Drop izLrko izfrosnu fofgr izi= esa rS;kj dj vko';d dkjZokbZ gsrq lefiZr dh tkrh gSA iFkksa dh lwph fuEu gS%&

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dz0	iFk dk uke	iSdst la[;k
1	Jaitpur Khutha Road to Dhobi Tola Dhaanuk Tola Tirasali Tola Primary School Tak	MMSGY-NDB-BRRP-113
2	L028 Nahar Path to Mandal Tola (Behrama)	MMSGY-NDB-BRRP-113
3	T01 to Koriya Dayal Tola	MMSGY-NDB-BRRP-113
4	T012 ODR to Ofapur Mushari	MMSGY-NDB-BRRP-113
5	L091 to Mankatha	MMSGY-NDB-BRRP-113
6	Sharma PMGSY Road to Gadh Tola Harizan Tola Tak	MMSGY-NDB-BRRP-192
7	PMGSY Jankidih to North Yadav Tola Basathpul	MMSGY-NDB-BRRP-193

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vuq0&;FkksDRkA fo'oklHkktu

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g0@&18@06@24 dk;Zikyd vfHk;ark xzkeh.k dk;Z foHkkx] dk;Z izeaMy y[khljk;

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To be Dropped Road List of MMGSY-NDB (BRICS)

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SI.No. Name of Roads District Division Project ID Administrati Administrati Length (In Expenditure If Reasons for Remarks
ve Approval ve Approval Km) Any dropping
Cost (In Reference (in lakh)
lakh) i.e. Letter
No./Date of
Serial no
1 Jaitpur Khutha Lakhisarai Lakhisarai 20804001902 58.215 1054/04.12. 0.917 0.000 Constructed
Road to Dhobi 2018 & Sr By
Tola Dharmuk No-24 Panchayat
Tola Tiresali Tola Scheme
2 L028 Nahar Path Lakhisarai Lakhisarai 20804001911 117.00 1054/04.12. 2.035 0.000 Habitation
to Mandal Tola 2018 & Sr Already
(Behrama) No-33 Connected
3 T01 to Koriya Lakhisarai Lakhisarai 20804001912 69.950 1054/04.12. 1.007 0.000 Habitation
Dayal Tola 2018 & Sr Already
No-34 Connected
4 T012 ODR to Lakhisarai Lakhisarai 20804001913 42.030 1054/04.12. 0.569 0.000 Constructed

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7/17

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	Ofapur Mushari					2018 & Sr No-35		By Panchayat Scheme
5	T019 Mankatha	Lakhisarai	Lakhisarai	20804001914	66.020	1054/04.12. 2018 & Sr No-36	1.359	Railway Land Allignment Not Available
6	Sharma PMGSY Road to Gadh Tola Harizan Tola Tak	Lakhisarai	Lakhisarai	2080400190023	100.667	101/24.01.2 020 & Sr No-32	1.500	Constructed By Other Scheme
7	PMGSY Jankidih to North Yadav Tola Basathpul	Lakhisarai	Lakhisarai	2080400190025	103.843	101/24.01.2 020 & Sr No-34	1.377	Constructed By Other Scheme

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1. Certified that the following works sanctioned by Rural Works

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Department under MMGSY-NDB (BRICS) are proposed to be dropped by division for reasons indicated in each case.

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2. If Any expenditure already incurred on these roads from the funds released by department for any activity has been recouped by the division. This has been reflected on the MIS also (If no expenditure has been incurred the same may be stated).

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3. It is further certified that fresh proposals for sanction of these roads will not be sought by the division under MMGSY-NDB (BRICS)

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4. It is also certified that the amount incurred in respect of the roads already dropped by the Ministry has been recouped from the division and credited to MMGSY funds and is reflected on MIS.

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Further, extract of letter no. 1876 dated 29.08.2025 is

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reproduced hereinbelow:

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“dk;Zikyd vfHk;ark dk dk;kZy; xzkeh.k dk;Z foHkkx] dk;Z izeaMy] y[khljk; i=kad 1876¼vuq0½------ @ y[khljk;@fnukad%& 29-08-25 @ izs"kd] bZ0 vk'kqrks"k dqekj dk;Zikyd vfHk;ark] xzkeh.k dk;Z foHkkx] dk;Z izeaMy y[khljk; lsok esa] v/kh{k.k vfHk;ark xzkeh.k dk;Z foHkkx] dk;Z vapy] eqaxsjA

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fo"k;%& MMGSY-NDB (BRICS) ;kstuk vUrxZr vkB ¼8½ iFkksa dks Drop djus ds laca/k esaA

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 8/17

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egk'k;]

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mi;qZDr fo"k;d izklafxd i= ds }kjk MMGSY-NDB (BRICS) ;kstuk vUrxZr fuEu vkB ¼8½ iFkksa dks Drop djus gsrq fofgr izi= esa okafNr lwpuk vxzrsj dkjZokbZ gsrq lefiZr dh tkrh gSA 1. Jaitpur Khutha Road to Dhobi Tola Dhaanuk Tola Tirasali Tola Primary School Tak

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2. L028 Nahar Path to Mandal Tola (Behrama)

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3. T01 to Koriya Dayal Tola 4. T012 ODR to Ofapur Mushari 5. L091 to Mankatha

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6. L041 Pathua to Kanharpur

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7. PMGSY PMGSY JANKIDIH to NORTH YADAV TOLA BASTHPUL 8. Sharma PMGSY Road to Gadh Tola Harizan Tola Tak vr% vuqjks/k gS fd mijksDRk iFk dks Drop djus dh d`ik dh tk,A vuq0&;FkksDRkA fo'oklHkktu g0@&29@08@25 dk;Zikyd vfHk;ark xzkeh.k dk;Z foHkkx] dk;Z izeaMy y[khljk;

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Learned counsel for the petitioner further submits that once

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the department itself had taken a conscious decision to drop the work, the same could not have been treated as an ‘existing commitment’ or ‘ongoing work’ requiring disclosure. The disqualification on such ground is, therefore, arbitrary and unsustainable, particularly when the alleged omission does not constitute a material deviation that would affect the bid capacity of the petitioner.

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Learned counsel for the respondent-State submits that the disqualification is in strict conformity with the terms and conditions of the Notice Inviting Tender and the provisions of the CMBD. It is submitted that Clause 4.2(m) of the CMBD mandates disclosure of existing commitments and ongoing construction works, which reads as under:

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"4.2(m) Existing commitments and ongoing construction work being undertaken by the bidder shall be submitted in prescribed format as described in qualification criteria."

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It is further submitted that Clause 4.6 of the CMBD provides for determination of available bid capacity, wherein the value of existing commitments and ongoing works is a crucial component, and Explanation 3 thereto specifically requires disclosure even of such works which are pending. Clause 4.6 of the CMBD, reads as under:-

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"4.6 Bidders who meet the minimum qualification criteria will be qualified only if their available bid capacity is more than the total bid value. The available bid capacity will be calculated as under :

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Assessed Available Bid capacity = (ANM – B)

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Where

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A = Maximum value of civil engineering works executed in any one year during the last five financial years {updated @8% per year to the price level of the preceding financial year in which bids are invited as specified in NIT} taking into account the completed as well as works in progress.

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N = Number of years prescribed for completion of Initial Rectification, Minor improvement, Surface renewal, Construction of bridge/drainage /protection for which bids are invited (period up to 6 months to be taken as half-year and more than 6 months as one year).

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M =3

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B = Value, at the current price level, of existing commitments and on- going works to be completed during the period of completion of Initial Rectification, Minor improvement, Surface renewal, Construction of bridge/drainage /protection for which bids are invited.

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Explanation-

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The Existing Commitment shall be the value of the remaining work, which has already been awarded to the bidder as on the date of submission of bid.

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 10/17

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The value of the remaining work should be calculated on the basis of the value of work as recorded in measurement book till the date of submission of bid, by bidder.

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In case of Land dispute, Forest Land issue, pending for Foreclosure or drop etc., the bidder must mention such work in the remarks column of the Existing commitments and ongoing construction work related format in clause 1.3.2(A) of Section III Qualification Information. However, In this regard, if the bidders attach any request letter in bid regarding not subtracting the remaining amount to calculate the available bid capacity, the same may be considered after due verification. 4. Further the value of any work awarded to the bidder in the period between the submission of bid and award of the present work shall also be counted as existing commitment.

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In case of EPC and similar nature Contracts, the existing commitment shall be counted from the appointment date or as mentioned in respective contract document. Construction of road/bridge for which bids are invited."

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Learned counsel for the respondents further submits that

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the State Government has also issued a clarification dated 20.05.2025 explaining the scope of ‘existing commitments/ ongoing construction work’, wherein it has been clarified that bidders are required to disclose not only works in progress but also such works which, for any reason including land disputes or other impediments, are not being executed, along with reasons for pendency. The contents of the said letter dated 20.05.2025 are reproduced as under:

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" xzkeh.k dk; foHkkxZ fcgkj ljdkj izsl foKfIr

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 11/17

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,rn~ lacaf/kr laosndksa dks xzkeh.k dk;Z foHkkx] fcgkj }kjk fuxZr Combined Model Bidding Document (CMBD) dh dafMdk 4-2 (m) dks fuEu :i ls Li"V fd;k tkrk gS%& "Existing Commitments and ongoing construction work being undertaken by the bidder shall be submitted in prescribed format as described in qualification Criteria"

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bl laca/k esa ;g Li"V fd;k tkrk gS fd foHkkxh; fufonkvksa esa Hkkx ysus okys fufonkdkj fufonk esa Existing Commitments and ongoing construction work esa Work in Progress okys dk;kZsa ds vfrfjDr mu lHkh dk;ksZa tks fdlh Hkh dkj.k ;Fkk Hkwfe fookn] ou foHkkx ,oa vU; dkj.kksa ls izxfr esa ugha gS ,oa yfEcr gS mu dk;ksZa dks yfEcr j[kus ds dkj.kksa dks Li"V djrs gq, vius Existing Commitments and ongoing construction work esa foLr`r :i ls mYys[k vfuok;Zr% djsaxsA

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It is, therefore, submitted by the learned counsel for the respondents that the action of the respondents is fair, reasonable, and in consonance with the tender conditions, leaving no scope for judicial interference in a contractual matter of this nature.

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Learned counsel for the private respondents adopts the arguments advanced by the counsel for the respondent-State.

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The limited issue which arises for consideration before this Court is as to whether the respondents were justified in disqualifying the petitioner on the ground of non-disclosure of a work under Agreement No. 23/SBD/2020-21, which had already been proposed to be dropped by the competent authority prior to the date of submission of the bid, and whether such work could be treated as an ‘existing commitment/ongoing work’ within the meaning of the relevant clauses of the CMBD.

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The issue in the present case relates to the interpretation of the expression ‘existing commitments/ongoing construction work’ as

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Patna High Court CWJC No.20584 of 2025 dt.02-04-2026 12/17

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stated in Clause 4.2(m) and Clause 4.6 of the Combined Model Bidding Document (CMBD). Clause 4.2(m) requires a bidder to disclose ‘existing commitments and ongoing construction work being undertaken’, whereas Clause 4.6 provides for determination of ‘available bid capacity’, wherein the value of ‘existing commitments and ongoing works to be completed’ is to be taken into account. Explanation 1 to Clause 4.6 further clarifies that ‘existing commitment’ means the value of the remaining work already awarded to the bidder as on the date of submission of the bid.

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From a combined reading of the aforesaid provisions, it is clear that the expression ‘existing commitment’ refers to a subsisting and enforceable obligation which has a direct bearing on the bidder’s capacity to execute the work for which tender has been issued. The emphasis is on the value of work ‘to be completed’, thereby indicating that only such works which are ongoing and capable of execution fall within its scope.

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Explanation 3 to Clause 4.6 provides that works pending for foreclosure or proposed to be dropped in case of land dispute or forest land issue, are also to be mentioned in the remarks column. Further a clarification had been issued dated 20.05.2025, which seemingly expands the meaning of ‘existing commitments’. Such press release cannot supplant the conditions of CMBD, and at best it can clarify the conditions of the CMBD.

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Further, Explanation 3 to Clause 4.6 anticipates only two situations, i.e., in case of land dispute or forest land issue, where there is a necessity of the work to be done. However, in case, where the work has already been completed by another scheme, it cannot be said to be included within the meaning of ‘existing commitment/ongoing work’. The letter dated 18.06.2024 clearly stipulates that the said work was not necessary to be done, as the work was already done under another scheme.

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Additionally, the purpose of Explanation 3 read with clarification dated 20.05.2025 is to ensure proper disclosure and transparency. The disclosure is for all such works, which are presently being executed, along with reasons for pendency, if any. A work which has already been constructed by another scheme cannot be said to included in such disclosure.

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In the present case, it is not in dispute that the work under Agreement No. 23/SBD/2020-21, namely Sharma PMGSY Road to Godh Tola Harijan Tola Tak under Lakhisarai Division , was proposed to be dropped by the Executive Engineer vide letter dated 18.06.2024, which was subsequently accepted by the respondent-State on 04.12.2025. It is also an admitted position that as on the date of submission of the bid, i.e., 14.08.2025, no work was to be executed pursuant to the said agreement as per the letter of the Executive Engineer dated 18.06.2024.

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It is further significant that though the proposal to drop the said work was sent in the year 2024, the same was formally approved only on 04.12.2025. The delay in approval is attributable to the respondent authorities and cannot be put against the petitioner. In such circumstances, the petitioner cannot be penalized for such non-disclosure of a work which had already been proposed to be dropped and in respect of which no subsisting obligation remained in practical terms.

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In matters relating to award of contracts, the scope of judicial review is limited. However, it is well settled that the decisionmaking process must be fair, reasonable, and free from arbitrariness. The Hon’ble Supreme Court in Montecarlo Ltd. v. NTPC Ltd. reported in (2016) 15 SCC 272 , has held that though the employer is the best judge of the interpretation of tender conditions, such interpretation must be reasonable and not arbitrary, and the Court can interfere where the decision is irrational. The relevant part of the judgment reads as follows:

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“26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be

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assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multiprong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decisionmaking process should clearly show that the said maladies are kept at bay...”

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In the present case, the interpretation adopted by the respondents treats even a work which had been proposed to be dropped and was not being executed as an ‘existing commitment’. Such an interpretation, in the opinion of this Court, is unreasonable and contrary to the object of Clause 4.6, which is to assess the actual capacity of a bidder. The purpose of disclosure of existing commitments is to assess the real workload of the bidder. A work which is not being executed and in respect of which the department itself has initiated steps for dropping (as being constructed by another scheme) cannot be equated with an

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ongoing and subsisting commitment where there is necessity of work to be done.

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In such circumstances, this Court is of the considered view that the said work cannot be treated as an ‘existing commitment’ or ‘ongoing work’ within the meaning of Clause 4.6. Mere existence of an agreement, without any subsisting or enforceable obligation, would not attract the requirement of disclosure so as to entail disqualification.

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It is further noted that in the impugned decision after reevaluation of the technical bid of the petitioner, dated 06.10.2025, there is no consideration on the plea taken by the petitioner, nor they have assigned any reason to reject the contention of the petitioner. Therefore, the impugned decision is also in violation of the principles of natural justice.

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The action of the respondents in treating the said work as an ‘existing commitment’ and disqualifying the petitioner on such ground is, therefore, arbitrary and not in consonance with the terms of the bidding document.

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In view of the discussions made herein above, this Court is of the view that the non-disclosure of the said work does not amount to a material lapse affecting the petitioner’s bid, and consequently, the impugned decisions dated 06.10.2025 as contained in Annexure – P/6,

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and 02.12.2025 as contained in Annexure – P/8 series, cannot be

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sustained in law and are, hereby, set aside.

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