Tender authorities have wide latitude to prescribe risk-mitigation eligibility criteria. Such terms are not subject to judicial review unless manifestly arbitrary. A bidder cannot participate in a tender process and subsequently challenge its conditions upon rejection, as the burden of disclosure remains with the participant.

JUDGMENT :

Ashutosh Kumar, CJ.

We have heard the learned counsel for the parties.

2. The appellant/SPS Construction India Private Limited has challenged the judgment dated 18.02.2026 passed by a learned Single Judge of this Court in WP(C) No.5051/2025 and WP(C) No.6625/2025, whereby the afore-noted two writ petitions have been dismissed, upholding the validity of the eligibility condition for the revised Request For Proposal (in short “RFP”) dated 23.07.2025 and the rejection of the appellant’s technical bid as non-responsive.

3. The respondent Nos.1 and 2 had issued an RFP dated 19.05.2025 for execution of major infrastructure project on Engineering, Procurement and Construction (EPC) Mode, namely, construction of second rail-cum-road bridge over river Brahmaputra along with associated works.

4. The original RFP contained an eligibility condition in Clause 2.2.2.4.iii.ii.2 of Section 2 thereof that there should not be a history of collapse of superstructure/substructure of any span of a bridge/flyover/via-duct/metro-line work during construction/service in last 5(five) years, ending last day of month previous to the one in which tender is invited and that an undertaking in that regard shall be submitted along with the bid.

5. Upon representation by the prospective bidders including the appellant, the respondents issued a revised RFP dated 23.07.2025, clarifying that only collapses attributable to design failure or quality failure would be relevant; and the look-back period would be reduced from 5(five) years to 3(three) years.

6. The appellant submitted its bid pursuant to the revised RFP but with the “without prejudice” clause and contemporaneously filed WP(C) No.5051/2025, [WP(C) No.5051/2025 was filed on 26.08.2025 as claimed by the appellant i.e. a day before the submission of the bid but according to the respondents the afore-noted was filed after the submission of the bid] challenging the validity of the clause or in the alternative, a declaration from the Court that such clause would not operate against the bidders having suffered a collapse in respect of any of their projects in the last 3(three) years on account of force majeure and/or in absence of any determined or adjudicated fault of the bidder.

7. While the afore-noted writ petition was pending, the technical bid of the appellant was rejected on 28.10.2025 as non-responsive in terms of the afore-noted clause. Another writ petition vide WP(C) No.6274/2025 thus was filed, challenging the said rejection. However, on submission that the Letter of Acceptance (LOA) had already been issued to respondent No.3/Larsen and Toubro Limited (L&T), the afore-noted writ petition [WP(C) No.6274/2025] was withdrawn by the appellant with the liberty to challenge the same. Thereafter, the appellant had preferred WP(C) No.6625/2025 challenging the grant of LOA to respondent No.3.

8. Before the learned Single Judge, it was argued on behalf of the appellant that the clause in question was void as it was vague, uncertain and ambiguous and, therefore, it did not provide a “level playing field” on account of inherent uncertainties in the application of such clause. In a project undertaken by the appellant in the State of Bihar within 3(three) years of the present RFP, there had been a collapse of few spans of the bridge under construction but without any fatalities and the cause of such collapse has till date not been ascertained.

It was thus contended by the appellant t