M/S. Gvpr Engineering Limited- M/S Hes Infrastructure PVT. LTD. Jv. vs. State Of Rajasthan

The present writ petition has been filed with the following prayers: “It is, therefore, most respectfully prayed that this writ petition may kindly be accepted and allowed and be further pleased: (i) To quash and set aside the order dated 29.06.2024 passed by the Additional Chief Engineer, Projects, Public Health and Engineering Department, Project Division Bharatpur declaring the petitioner non- responsive. (ii)To declare the petitioners bid as responsive/eligible for the above stated Tender and for a direction to respondents to receive and consider the Petitioners Bid and act accordingly. (iii) To declare the constitution of First Appellate Authority and Second Appellate Authority bad in the eyes of law. (iv) Any other order which the court deems fit in Justice, Equity and Good Conscience.”

Learned Senior Counsel for the petitioner, vide application No.1/2026 did not press clause No. (iii) of the prayer of the writ petition. Accordingly, this Court, considering the said application, disposed of the same by order dated 29.06.2026. Therefore, now the writ petition is being considered for prayer Nos. (i),(ii) and(iv).

The factual matrix of the writ petition is a Notice Inviting Bids (hereinafter referred to as “NIB”) no. 10/2023-24 was floated by PHED department of State of Rajasthan presently being respondent Nos. 2 and 3 for “Work of EMI at existing intake well act Chamber River, Raw Water Pipe Line from intake to RWR-1 and RWR-2 at Dholpur, Main Raw Water Pumping Stations at RWR-1

The date for downloading the bid was fixed as 16.09.2023 to 19.10.2023. Online submission time was from 16.09.2023 to 19.10.2023. Deposit of original document date was upto 1:00 PM on 20.10.2023. Date of opening of technical bid was 20.10.2023 at 03:00 PM.

The present petitioner as well as respondent no. 4 and two other companies namely M/S Megha Engineering and Infrastructure Private Limited and M/S NCC Limited also submitted there bids.

Vide order dated 29.06.2024 office of the Additional Chief Engineer (Project) PHED, Bharatpur, the following bidders were declared responsive/non-responsive for opening of financial bids: S.No. Name of Firm Remark 1 M/s Megha Engineering and Infrastructures Limited Responsive 2 M/s JWIL Infra Limited (JV of M/s SPML Infra Ltd. and M/s JWIL Infra Ltd.) Responsive 3 M/s NCC Limited Responsive 4 M/s GVPR Engineers Limited (JV of M/s GVPR Engineers Limited and M/s HES Infra Pvt. Ltd. Non-responsive, as the bidder does not meet financial criteria (PQ criteria) with regard to credit limit requirement.

The petitioner's bid was declared non-responsive vide order dated 29.06.2024 on the ground that it did not satisfy the financial criteria (PQ Criteria), as the FIN-2 certificate submitted

Vide order dated 16.10.2024, this Court directed that all further actions, including the issuance of the Letter of Intent (hereinafter referred to as “LOI”), shall remain subject to the final outcome of the present writ petition. The work order dated 03.09.2025 also specifically records that it has been issued subject to the final decision of this Court in the present writ petition in terms of the order dated 16.10.2024. 9. Learned Senior Counsel for the petitioner submitted that, as per the bidding document in cases where a bidder participates through a joint venture, the requirement regarding the credit limit reads as under: No. Factor Requirement Requireme nt in terms of value for fulfillment of eligibility Single Entity All parties combined Each member One member Submiss ion require ments

1 Learned Senior Counsel for the petitioner submitted that the purpose of prescribing the credit limit was to ensure that in the event the work order is awarded to the successful bidder, such bidder would have sufficient finances to execute the work and complete the project within the stipulated time.

2 Learned counsel further submitted that under the tender conditions, each member of the joint venture was required to satisfy at least 10% of the prescribed financial requirement, whereas the lead partner was required to satisfy at least 51% thereof. He also submitted that considering the estimated project cost of Rs.1,284.30/-Crores, the prescribed credit limit requirement worked out to 15% thereof, i.e., Rs.192.65/- Crores.

3 Learned Senior Counsel for the petitioner further submitted that M/s GVPR Engineering Limited being the lead partner fulfilled the entire prescribed credit limit requirement of more than Rs.192.65/- Crores and in fact, had an available credit limit of Rs.384.85/- Crores as is evident from Annexure-R/5. He also submitted that the other joint venture partner; namely HES Infra Pvt. Ltd. was independently required to satisfy only 10% of the prescribed credit limit requirement. In this regard, the certificate issued by the Bank of India dated 21.05.2024 clearly certified the availability of the requisite credit facility.

4 Learned Senior Counsel for the petitioner submitted that although the said certificate was not strictly in the prescribed FIN-

5 Learned Senior Counsel for the petitioner submitted that by misconstruing the contents of the certificate and merely because it was not in the exact FIN-2 format, respondent Nos. 1 to 3 without affording any opportunity to the petitioner to furnish clarification, wrongly concluded that the petitioner did not possess the requisite available credit limit as on the relevant date. Consequently, the petitioner's bid was declared non-responsive.

6 Learned Senior Counsel for the petitioner further submitted that the alleged defect was purely curable in nature and could have been rectified in accordance with the provisions of the RTPP Act, 2012 and Rule 13 of the Rules of the 2013. He further submitted that the entire tender process demonstrates that respondent No. 4 was declared the successful bidder despite serious deficiencies in its bid. He also submitted that at the stage of issuance of the LOI, the other bidders who had initially been declared responsive had failed to extend the validity of their bids, leaving respondent No. 4 as the sole remaining bidder. Despite this, and in violation of the provisions of the RTPP Act, 2012 and Rule 13 of the Rules of 2013, respondent Nos. 2 & 3 proceeded to issue the LOI in favour of respondent No. 4 in an arbitrary and discriminatory manner.

7 He further submitted that the LOI was thus issued despite the pendency of the present writ petition and the order passed by

8 Learned Senior Counsel for the petitioner also submitted that the FIN-3 document submitted by respondent No. 4 was not in conformity with the bidding document. He further submitted that the Evaluation Committee, in its observations dated 25.04.2024, specifically recorded the deficiencies in respondent No. 4, FIN-3 document.

9 Learned Senior Counsel for the petitioner submitted that by adopting discriminatory practices and applying different standards, respondent Nos. 2 & 3 permitted respondent No. 4 to correct his FIN-3, whereas the petitioner was not afforded any opportunity at any point of time to clarify his FIN-2.

10 Learned Senior Counsel for the petitioner further submitted that despite all these facts having come on record, respondent Nos. 2 & 3, instead of affording the petitioner an opportunity, proceeded to justify the estimated cost by the committee which was excessively high.

11 Learned Senior Counsel for the petitioner submitted that the discrimination on the part of the Bidding Authority and the State is writ large. The petitioner’ joint venture was in a summary manner, declared non-responsive without there being any material deviation that could have been corrected without affecting the substance of the bid. There is a clear violation of the provisions of the RTPP Act, 2012 and the Rules of 2013.

12 Learned Senior Counsel for the petitioner also drew attention of this Court towards the Committee Meeting (Annexure-1) on

13 Learned Senior Counsel for the petitioner further submitted that the approach adopted by the Bidding Authority was contrary to the principles of transparency and fairness. The price bid submitted by respondent No. 4 was substantially higher than the estimated project cost of Rs.1284.30/- Crores. He further submitted that in order to confer an undue advantage upon respondent No. 4, the estimated cost was sought to be justified not on the basis of the PHED BSR, 2021 as stipulated in the NIB, but on the basis of the revised PHED BSR, 2023 and PWD BSR, 2022. He further submitted that, the bid submitted by respondent No. 4 was approximately 15% higher than the NIB cost.

14 Learned Senior Counsel for the petitioner further submitted that even as late as 09.06.2025, the tender had not been finalized and the pre-qualification (PQ) criteria of respondent No. 4 was still under consideration, whereas the petitioner had already been declared non-responsive vide order dated 29.06.2024. He submitted that although two other bidders were declared responsive, they were not considered as they failed to extend the validity of their bids. Consequently, respondent No. 4 remained

15 Learned Senior Counsel for the petitioner further submitted that in clear violation of the provisions of the RTPP Act, 2012, the Rules of 2013, and the bidding documents, the authorities issued the LOI in favour of respondent No. 4 during the pendency of the present writ petition, notwithstanding the order of this Court that the LOI would remain subject to the final outcome of the writ petition.

16 Learned Senior Counsel for the petitioner submitted that had the procuring authority adopted the same liberal approach towards the petitioner as it did in the case of respondent No. 4, the State exchequer could have been saved an amount of Rs. 211/- Crores i.e. Rs.1438.3077/- Crores - Rs.1226.51/- Crores.

17 Learned Senior Counsel for the petitioner also drew attention of this Court towards the Rule 9, Rule 60, and Rule 61 of the Rules of 2013 in support of his submissions. Therefore, he, prayed that the writ petition be allowed in terms of the prayers as prayed for.

Per contra, learned Advocate General for the State- respondents Nos. 1 to 3 advanced his submissions and also filed written arguments. He drew attention of this Court towards the conditions contained in the NIB, particularly the requirement relating to the credit limit. Further drew attention of this Court towards Chapter-I of the bidding document, containing the instructions to Bidders, specifically required every bidder to carefully read and understand the instructions, forms, terms and

1 Learned Advocate General for the State-respondents Nos. 1 to 3 further drew attention of this Court towards the terms and conditions governing the preparation of bids as well as the provisions relating to the "Preliminary Examination of Bids" contained in the NIB. He further submitted that the last date for submission of bids, which was originally prescribed, was extended up to 21.05.2024 and the petitioner submitted its bid on the said extended last date. The technical bids were opened on 22.05.2024.

2 Learned Advocate General for the State-respondents Nos. 1 to 3 also referred to the various stages of the bid evaluation process,

3 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that the first meeting of the Bid Evaluation Committee was held on 25.06.2024 and minutes were drawn, wherein the petitioners’ bid was found not to satisfy the prescribed financial eligibility criteria as the FIN-2 which has been provided by the petitioner did not specifically disclose the total credit limit available as well as the unutilized credit limit available within three

4 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that the certificate issued by the Union Bank of India in favour of the lead partner, M/s GVPR was found to be in conformity with the tender requirements. However, the certificate dated 21.05.2024 issued by the Bank of India in favour of M/s HES Infra Ltd. did not satisfy the prescribed conditions. Consequently, the petitioner's bid was declared non-responsive and the petitioner was informed accordingly vide order dated 29.06.2024.

5 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that the petitioner challenged the order dated 29.06.2024 by filing a first appeal before the learned First Appellate Authority, which came to be dismissed vide order dated 12.07.2024, affirming the decision of the Bid Evaluation Committee. The petitioner thereafter preferred a second appeal before the learned Second Appellate Authority, which was also dismissed vide order dated 21.08.2024.

6 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that thereafter, on 03.09.2025, the procuring entity issued the work order in favour of respondent No. 4 and a formal contract was also executed with respondent No. 4.

7 Learned Advocate General in written submissions have raised preliminary objections regarding the maintainability of the present writ petition. It was argued that the writ petition has been filed by a Joint Venture, which is not a legal entity and therefore, the writ

8 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that the petitioner has challenged only the order dated 29.06.2024 and has failed to challenge the subsequent orders passed by the learned First Appellate Authority dated 12.07.2024 and the learned Second Appellate Authority dated 21.08.2024. Therefore, by virtue of the doctrine of merger, the original order stood merged with the appellate orders and, in the absence of any challenge thereto, the writ petition is liable to be dismissed.

9 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that the petitioner has made incorrect pleadings by alleging that the order dated 21.08.2024 is an order, whereas in fact it was merely the English translated version of the original order passed in Hindi. He further submitted that this material fact has neither been disclosed in the pleadings nor in the supporting affidavit, thereby violating the Rule 22 of the Rajasthan High Court Rules, 1952 and therefore, the writ petition deserves to be dismissed.

10 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that no relief can be granted in respect of an order which has not been specifically challenged. Since the petitioner has not amended the writ petition to challenge the subsequent

11 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that a pure question of law can be raised at any stage of the proceedings and that the preliminary objections relating to the maintainability of the writ petition deserve to be decided at the threshold.

12 Learned Advocate General for the State-respondents Nos. 1 to 3 submitted that the controversy involved in the present case is squarely covered by the judgment rendered in Project Director, RUID & Others v. M/s Rama Infra & Others (D.B. Special Appeal (Writ) No. 804/2018) decided on 29.03.2019. He further submitted that the scope of judicial review in contractual and tender matters is extremely limited and that on the date of submission of the bid, the petitioner was admittedly ineligible. The respondents were under no statutory obligation to seek any clarification or negotiate with a bidder whose bid had been found to be non-responsive.

13 Learned Advocate General for the State-respondents Nos. 1 to 3 drew attention of this Court towards Section 5 & 7 of the Act, 2012 and Rule 59, 60 and 61 of the Rules of 2013.

14 Lastly, he further submitted that while exercising juri iction under Article 226 of the Constitution of India, this Court cannot travel beyond the statutory framework governing the tender process. He further submitted that equitable considerations cannot override the express provisions of the statute or the terms

Learned counsel for the respondent No. 4 supported the submissions advanced by the learned Advocate General. In addition thereto, he submitted that respondent No. 4 has filed an application under Section 379 of BNSS, 2023 alleging that the petitioner has placed on record a fabricated and forged document, namely, the purported order of the learned Second Appellate Authority.

1 Learned counsel for the respondent No. 4 argued that the writ petition has, in any case, become infructuous inasmuch as the LOI has already been issued, the contract has been awarded and executed, and the petitioner has failed to suitably amend the writ petition so as to challenge the subsequent developments.

2 Learned counsel for the respondent No. 4 submited that pursuant to the award of the contract, respondent No. 4 has mobilized substantial machinery, manpower, financial resources and furnished the requisite bank guarantees. A significant portion of the work has already been executed and an investment of crores has been made. He further submitted that any interference at this stage would not only seriously prejudice the successful bidder but would also adversely affect the execution of a Major Public Water Supply Project undertaken in public interest.

3 Learned counsel for the respondent No. 4 drew attention of this Court towards Section 2(34) of the RTPP Act, 2012 defining a "responsive bid", as well as Section 60(4) of the said Act. He also

4 Learned counsel for the respondent No. 4 argued that FIN-2 certificate furnished by the petitioner's Joint Venture partner, M/s HES Infra Pvt. Ltd., did not disclose the availability of the requisite credit limit as on the date of submission of the bid, which constituted a breach of the mandatory conditions of the tender document. Consequently, the petitioner's bid was rightly declared non-responsive.

5 Learned counsel for the respondent No. 4 further argued that the petitioner has filed a false affidavit before this Court and, therefore, the writ petition deserves to be dismissed in limine.

6 Learned counsel for the respondent No. 4 further submitted that the original order dated 29.06.2024 stood merged with the appellate orders dated 12.07.2024 and 21.08.2024. Since the petitioner has not challenged the subsequent appellate orders, the present writ petition is not maintainable and is liable to be dismissed on this ground alone.

7 Learned counsel for the respondent No. 4 further argued that while exercising juri iction under Article 226 of the Constitution of India, this Court ought not to interfere in matters relating to tender evaluation except in cases of arbitrariness, malafides or violation of statutory provisions, none of which is made out in the present case.

8 Learned counsel for respondent no. 4 pointed out that as on March, 2026, works valuing approximately Rs.188.20/-Crores (inclusive of GST) had already been completed and further

In rejoinder the learned Senior Counsel for the petitioner submitted that the filing of the English translated copy of the order dated 21.08.2024 of the learned Second Appellate Authority, instead of the original Hindi version, was only a bonafide procedural irregularity. The translation was a true and correct translation generated through Google Lens, the original Hindi order has since been placed on record by both the respondents and the petitioner, and its authenticity was never disputed in the reply; therefore, the objection raised during arguments is merely an afterthought.

1 Learned counsel in rejoinder further submitted that the objection regarding maintainability of the writ petition at the stage of arguments under Section 69 of the Act of 1932 is misconceived and beyond the pleadings. It was submitted that the petitioner participated in the tender as a Joint Venture, which was expressly permissible under the tender conditions and accepted by the respondents throughout the tender process. Section 69 of the Act of 1932 applies only to suits for enforcement of contractual rights and has no application to proceedings under Article 226 of the

2 Learned Senior Counsel also opposed the respondents' application under Section 379 read with Section 215 of the BNSS, 2023, contending that no case of forgery, falsehood or perjury is made out and that the application is frivolous, malafide and intended only to prejudice the petitioner during the pendency of the writ petition.

Learned Senior Counsel for the petitioner placed reliance on the judgments: - (i) Uday Shankar Triyar vs. Ram Kalewar Prasad [2026:RJ-JP:27270] (18 of 77) [CW-14206/2024] (ix) Assn of Registration Plates vs. Union of India (xv) Comptroller and Auditor-General of India, Gian Petition No. 8541/2025 decided on 26.02.2026. (xvii) M/s. Geo Miller Co. Pvt. Ltd. vs. State of Rajasthan and Anr. reported in AIR 2016 RAJ 130. (xviii) The Porject Director and others vs. M/s. Ramky Infrastructure Ltd., in D.B. Special Appela (Writ) 804/2018 and connected matters.

Learned Advocate General for the State-respondents Nos. 1 to 3 placed reliance on the following judgments: (i) Deputy Commissioner of Sales Tax, (Law) BOR (Taxes), Ernakulam vs. M/s Kelukutty reported in (1985) 4 SCC 35. (ii) Ethiopian Artilines vs. Ganesh Narain Saboo reported in (2011) 8 SCC 539. (iii) Shanti vs. T.D. Vishwanathan & Anr. reported in (2019) 11 SCC 419. [2026:RJ-JP:27270] (19 of 77) [CW-14206/2024] (iv) State of Orissa & Anr. vs Mamta Mohanty reported (Pandey) & Ors. reported in (2024) 20 SCC 23. (vi) ADM (City) Agra vs. Prabhakar Chaturvedi & Anr. reported in (1996) 2 SCC 12. (vii) State of W.B. & Anr. vs. West Bengal Registration Copywriters Ass. & Anr. reported in (2009) 14 SCC 132. (viii) Yeshwant Deorao vs. Walchand Ramchand (xi) Project Director, RUIDP & Ors. vs. M/s Ramky Infrastructure Ltd. & Ors. (DBSAW o. 804/2018) India & Anr. reported in (2020) 16 SCC 489. (xiii) Michigan Rubber (India) Ltd. vs. State of (xv) N.G. Projects Ltd. vs. M.s Vinod Kumar Jain & Electric Supply & Transport Undertaking (BEST) & Ors. (Civil Appeal No. 3887 of 2023). (xvii) KSRTC vs. Ashrafulla Khan & Ors. reported in (2002) 2 SCC 560. (xviii) Council of ISCE vs. Isha Mittal & Anr. reported in (2000) 7 SCC 521. 15. Learned counsel for the respondent no. 4 placed reliance on the following judgments:-

Before adverting to the writ petition on merits, this Court deems it appropriate to first consider certain objections raised by the respondents, although such objections were not specifically pleaded in their reply.

One of the principal objections jointly raised by all the respondents is that the petitioner has not challenged the subsequent developments that occurred during the pendency of the present writ petition, namely, the issuance of the LOI, the work order, the execution of the agreement, and the substantial progress of the work. It was further contended that respondent No. 4 has made substantial investments pursuant thereto, and therefore, this Court ought not to entertain the writ petition at this stage.

1 This Court finds that immediately after the impugned order dated 29.06.2024 was passed, the petitioner approached the competent authorities for redressal of its grievances. Thereafter,

5 A perusal of the said affidavit reveals that when the writ petition was initially filed, the affidavit in support of the documents was not happily or appropriately worded. However, if the affidavit was defective or not in the prescribed form, the same ought to have been objected by the Registry at the time of scrutiny. This Court finds that no such objection was ever raised by the Registry, thereafter the writ petition came to be registered and notices were duly issued to the respondents.

6 The objection has surfaced only at the stage of final arguments. In the opinion of this Court, even assuming that the affidavit was deficient or not in the proper format, such deficiency would, at best, constitute a curable defect. It is well settled that where the Court finds that where an affidavit supporting annexed documents is incomplete or not in the prescribed format, the defect can always be rectified by permitting the filing of a proper affidavit.

7 The record further reveals that Learned Senior Counsel for the petitioner has, in fact, filed a duly corrected affidavit on 26.05.2026, wherein paragraph No.2 specifically states as under:

8 A bare perusal of the affidavits referred to in paragraph 19.4 reveals that no affidavit was filed with respect to the annexure generated through Google Lens, i.e., the order of the learned Second Appellate Authority. The affidavit was filed only in respect of Annexure-1.

9 This Court further finds that the corrected affidavit, as referred to in paragraph 19.7 of this order, has been filed, which clearly demonstrates that Annexure-7 consisted of the photocopy of the memo of the second appeal along with the English translation of the order dated 21.08.2024 passed by the learned Second Appellate Authority.

10 In view of the above, this Court finds no merit in the contention advanced by learned counsel for respondent No. 4 seeking initiation of criminal proceedings under Section 379 of the BNSS, 2023. the omission in original affidavit was a curable procedural defect, which has since been rectified by filing the corrected affidavit. No material has been placed on record to

11 Consequently, the objection raised by respondent No. 4 is devoid of merit and is, accordingly, rejected.

Learned counsel for the respondents have also raised a preliminary objection that the writ petition is liable to be dismissed on the ground that although the petitioner has challenged the original order dated 29.06.2024, the orders passed by the learned First Appellate Authority and the learned Second Appellate Authority have not been assailed. It was submitted that the doctrine of merger would apply and therefore, in the absence of a challenge to the appellate orders, the writ petition is not maintainable.

1 This Court has considered the aforesaid objection and finds no merit therein. The doctrine of merger is primarily applicable in cases where a decree or order of a subordinate Court merges into the decree or order passed by the superior forum. The object of the doctrine is to determine the limitation for execution of a decree and to identify the operative decree or order for purposes of limitation. The said doctrine cannot be mechanically extended to every administrative or quasi-judicial proceeding.

2 In the present case, the impugned action whereby the petitioner's bid was declared non-responsive is contained in the order dated 29.06.2024 passed by the Procuring Entity. Although the petitioner thereafter availed the statutory remedies before the learned First Appellate Authority and the learned Second Appellate Authority under the provisions of the RTPP Act, 2012, the original

3 While exercising its extraordinary juri iction under Article 226 of the Constitution of India, this Court is required to examine the legality, validity and propriety of the original administrative action. If the Court finds that the order dated 29.06.2024 is contrary to the provisions of the Act, the Rule, or the terms and conditions of the NIB, it is well within its juri iction to interfere with the said order. Merely because the appellate orders have not been specifically challenged would not, by itself, render the writ petition non-maintainable by invoking the doctrine of merger.

4 The doctrine of merger, in the facts of the present case, cannot be applied so as to defeat the exercise of the constitutional juri iction of this Court under Article 226 of the Constitution. The availability and exhaustion of the statutory appellate remedies do not denude this Court of its power to examine the legality of the original administrative order.

5 Therefore, this preliminary objection raised by the respondents is devoid of merit and deserves to be, and is hereby, rejected.

6 In reaching the above conclusion this court relies on a judgment passed by the Hon'ble Supreme Court in State of U.P. v. Mohd. Nooh (Supra), wherein it was held that the doctrine of merger does not have universal application and an original order continues to remain operative unless modified or set aside in

Another objection raised by respondent Nos. 1 to 3 is with regard to the fact that the writ petition is not maintainable as being barred by Section 69(2) of the Act of 1932. Learned counsel for respondent No. 4 submitted that a reading of the Joint Venture agreement executed between the petitioner and M/s HES Infra Pvt. Ltd. reveals that it provides for sharing of profits and, therefore, answers the definition of a "partnership" under the Act of 1932. It is contended that since the alleged partnership firm is not registered, the present writ petition is barred under Section 69(2) of the Act of 1932 and is, therefore, not maintainable.

1 At the outset, it is noticed that no such objection was raised by any of the respondents in their written reply. The said contention has been raised for the first time during the course of final arguments.

2 This Court further finds that the NIB itself specifically contemplated participation by Joint Ventures and required only that the constituent members execute a Joint Venture agreement

3 It is also pertinent to note that respondent No. 4 has not placed on record its any Joint Venture agreement to demonstrate that it had constituted a registered partnership firm before participating in the bidding process. Learned Advocate General has failed to produce any document or material to establish that respondent No. 4, namely SPML–JWIL JV, was constituted as a registered partnership firm or that registration under the Act of 1932 was treated as a mandatory requirement under the tender conditions.

4 On the contrary, the agreement executed by the State- respondents with respondent No. 4 clearly reflects that the contract has been awarded to the Joint Venture itself and not to any registered partnership firm. This itself demonstrates that registration under the RTPP Act, 2012 was never treated as a condition precedent for participation in the bidding process.

5 Even otherwise, Section 69(2) of the Act of 1932 has a limited application. The said provision bars the institution of a suit to enforce a right arising out of a contract by or on behalf of an unregistered partnership firm. The present proceedings are not in the nature of a civil suit but are proceedings under Article 226 of

6 A bare reading of Section 69 of the Act of 1932 makes it clear that the said provision is applicable only to suits arising out of a contract. In other words, it bars the institution of a suit by or on behalf of a partnership firm against a third party unless the partnership firm is duly registered.

7 In the opinion of this Court, the said provision cannot be applied to the present writ petition for more than one reason.

8 Firstly, the State-respondent Nos. 1 to 3, never prescribed in the NIB that a joint venture was required to be registered as a partnership firm. The only condition stipulated in the NIB was that the parties should execute a valid joint venture agreement for carrying out the work jointly.

9 Secondly, the learned Advocate General has failed to place on record any document to demonstrate that, in the case of a joint venture agreement, registration of the joint venture as a partnership firm was a mandatory requirement. Consequently, this Court finds that the said contention is nothing but an afterthought

10 The view of this court is further fortified by the principles laid down by the Hon'ble Supreme Court in Umesh Goel (Supra). The Apex Court held that the bar under Section 69(3) of the Act of 1932 applies only where the proceedings are intrinsically connected with a suit instituted in a Court by an unregistered firm or its partner. It further clarified that the expression "other proceedings" is confined to proceedings arising out of or incidental to such suits, and does not extend to independent proceedings. The relevant observations and principles enunciated in the aforesaid judgment, which are germane to the adjudication of the present controversy, are reproduced hereinbelow:

All bids, in which any of the prescribed conditions are not fulfilled or which have been vitiated by errors in calculations, totaling or discrepancies in figures or words or other discrepancies, will be liable to rejection.

No conditional bids shall be accepted and will be rejected summarily forthwith.

The acceptance of the bid rest with the competent authority who does not bind itself to accept the lowest bid, and reserves to itself the authority to reject any or all the bids received without assigning any reason. “CHAPTER 1 INSTRUCTIONS TO BIDDERS (ITB)”

Omissions, Errors

3 Tenderers shall carefully examine the scope of work and specifications and fully inform themselves as to the conditions and matters, which may in any way affect the work or the cost thereof. Should a Tenderer find discrepancies or omissions in the documents or should he be in doubt as to their meaning he should notify the Deptt. in writing not later than one week earlier or present his request in written form during the pre-bid meeting. The Deptt. will respond to any request which is made prior to or during the pre-bid conference. No such request after the pre- bid meeting shall be entertained. Any resulting interpretation or modification of the tender documents shall be issued to all tenderers as an addendum, which will become a part of the tender documents. The tenderers shall acknowledge in writing the receipt of each addendum. No claims except as otherwise expressly provided will afterwards be accepted due to non- understanding or mis-interpretation of the tender documents.

Format and signing of bid

5 All bids, in which any of the prescribed conditions are not fulfilled or which have been vitiated by errors in calculations, totaling or other discrepancies or which contain over-writing in figures or words or corrections not initialed and dated, may be liable to rejection.

Sealing and marking

2 Contents of Cover-1- It should contain following:- 7. Bankers/financial institutions sanction letters for desired fund and non-fund- based credit facilities available (shall be of period with in 3 months from the date of opening of prequalification bid) (From FIN- 2).

An affidavit on Rs. 500 stamp paper illustrating the list of works, its cost and all information in brief of which are in hand for execution for calculation of bidding capacity (Form FIN-3).

Declaration of Historical Contact Non- performance on Rs. 500 stamp (Form FIN- 05).

Schedule-2; Statement having read the tender document.

Schedule 3.1; Undertaking 22. Schedule 3.2; Deviation from technical specification 23. Schedule 3.3; Deviation from condition of contract 24. Summary of financial information prescribed in Schedule 4

Opening of bids by department

1 Additional Chief Engineer, Project PHED, Bharatpurorother

Preliminary Examination of bids

3 Substantial bid Notwithstanding

4 If a bid is not substantially responsive it will be rejected by the Department and will not be used for further evaluation. The financial offers of non responsive bidder will ot be opened. The Department’s determination of a bid’s responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence. It is expressly stated that the information contained in the Cover-1 of the bid will be used to define whether a bid is substantial or not. The Bidders and therefore, advised to submit complete bids only.

Evaluation for pre-qualification

3 The Department reserves the right not to consider any deviation that in the sole discretion of the Department is found unacceptable. The Department shall require such deviations to be withdrawn, for the unaccepted deviations. The evaluation subsequently will be made on the rates quoted for such items in original offer.

The questions for consideration before this Court is whether, merely on reading the bank certificate dated 21.05.2024 issued by the Bank of India in favour of one of the joint venture partners,

Further, this Court is required to examine whether, under the RTPP Act, 2012 as well as the Rule of 2013, the procuring authority had the power to seek clarification. This Court is also required to consider whether the respondents exercised their discretion properly by seeking clarification from one party, namely respondent No. 4, while not seeking a similar clarification from the present petitioner, and whether such action amounts to discrimination.

Both the parties have strongly relied upon the NIB. Learned counsel for the respondents submitted that FIN-2 was a mandatory document and ought to have been submitted by the petitioner accurately and in the prescribed format so as to establish, beyond doubt, that each party to the JV possessed the financial capacity of more than 10% of the estimated project cost, which is approximately Rs.19.265/-Crores.

1 This Court finds that, as per the contents of Cover-1 of the NIB, particularly Clause 16.2 of Volume-I at page No.102 of the paper book of the writ petition, Clause 7 & 8 reads as under:

2 Both the parties admit that these documents were mandatory and were required to be submitted as part of Cover-1 of the bid.

3 This Court further finds that the Evaluation Committee, while considering the bids in its meeting held on 25.06.2024 has recorded as under: “OFFICE OF THE CHIEF ENGINEER (SPECIAL PROJECTS)

M/s NCC Limited. Responsive subject to compliance by ACE(P) Bharatpur of the comments made by BEC

M/s SPML-JWIL JV Responsive subject to compliance by ACE(P) Bharatpur of the comments made by BEC