1. Challenge to exclusion from bidding process for non-submission of physical earnest money deposit bank guarantee before cut-off time. (Para 2 , 4 , 8 )
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2026 Supreme(Online)(Del) 17168
IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, Manmeet Pritam Singh Arora, JJ
SMC Infrastructures Private Limited – Appellant
Versus
Municipal Corporation of Delhi – Respondent
W.P.(C) 11866/2026 | CM APPL. 54889/2026
Advocates:
For the Appellants/Petitioners: Ankit Jain, Rahul Dhawan, Vishesh Issar, Krishna Parkhani, Himanshu Chakravarty, Vaishali Singh, Vardan Sharma, Apurva Tyagi, Procheto Das
For the Respondents: Tushar Sannu, Vaibhav Tripathi, Fajallu Rehman, Hardik Saxena
For the Appellants/Petitioners: Ankit Jain, Rahul Dhawan, Vishesh Issar, Krishna Parkhani, Himanshu Chakravarty, Vaishali Singh, Vardan Sharma, Apurva Tyagi, Procheto Das
For the Respondents: Tushar Sannu, Vaibhav Tripathi, Fajallu Rehman, Hardik Saxena
Strict adherence to the terms of the Notice Inviting Tender (NIT), particularly regarding the timely submission of physical bank guarantees, is mandatory. The employer's decision to treat such conditions as essential is generally respected by courts unless the decision is irrational or mala fide.
Headnote:(A) Tender Process - Compliance with NIT - Strict adherence to timelines for submitting physical bank guarantees is essential. Failure to comply with express conditions of the Notice Inviting Tender (NIT) justifies the exclusion of a bidder, regardless of whether a soft copy was uploaded. (Para 18, 19)
(B) Essential vs. Ancillary Conditions - Employer's Discretion - The determination of whether a tender condition is essential or ancillary lies with the employer. Courts should exercise judicial restraint and not interfere with such administrative decisions unless they are irrational, mala fide, or intended to favour someone. (Para 22)
(C) Principle of Uniformity - Non-discrimination - Where a condition is strictly enforced for all bidders, a request for relaxation for a single bidder cannot be granted as it would lead to allegations of bias and unfairness. (Para 14, 18)
Issues: Whether the petitioner was rightly excluded from the bid process for not submitting the physical copy of the EMD by way of the Bank Guarantee before 1500 hours on 07.08.2026.
Legal Category Hierarchy
- administrative law
- practice and procedure
- contract law
Table of Contents
2. Petitioner argued minor delay in physical submission should be condoned; respondent insisted on strict compliance with tender timeline. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 )
3. Court found no evidence of timely attempt to deposit bank guarantee, and no relaxation was granted to similarly placed bidders. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 )
4. If employer treats a tender condition as essential and does not relax it, failure to comply justifies rejection of bid. (Para 19 , 20 , 22 , 23 )
5. Petition dismissed; no interference with exclusion of petitioner from tender process for non-compliance with condition. (Para 25 )
6. Can a tender condition requiring physical submission of a bank guarantee before a cut-off time be waived by a court?
No. If the employer treats the condition as essential and does not relax it, the court will not interfere with rejection for non-compliance. (Para 19 , 20 , 22 , 23 , 24 , 25 )
7. What is the distinction between essential and ancillary conditions in a tender notice?
Essential conditions of eligibility must be enforced rigidly; ancillary conditions may be waived by the authority in appropriate cases. (Para 20 , 22 )
8. What is the scope of judicial review in tender matters regarding compliance with bid conditions?
Judicial review is limited to the decision-making process; the soundness of the employer's decision is not questioned unless irrational or mala fide. (Para 22 )
V. KAMESWAR RAO, J. (ORAL)
1. This petition has been filed with the following prayers:-
“A. Issue a Writ, in the nature of Mandamus or any other appropriate Writ, order or direction directing the Respondent No.1 and 2 to accept the physical copy of the EMD of the Petitioner, along with the bids of other participants, while opening the technical bids for tender dated 24.07.2026;
B. Allow the present petition and direct the Respondents to consider the technical/financial evaluation of the bid submitted by the Petitioner along with those of other bidders;”
2. The challenge in this petition is primarily to the exclusion of the petitioner in the bidding process on the ground that it has not submitted the physical bank guarantee towards Earnest Money Deposit (“EMD”) after the cut-off time of 1500 hours on 07.08.2026.
3. On 24.07.2026, the respondent no. 2 floated a Notice Inviting Tender (“NIT”) for replacement of existing public lights along with the comprehensive operation and maintenance for six zones under jurisdiction of the Municipal Corporation of Delhi (“MCD”) including unauthorized areas, for a period of 10 years.
4. The NIT dated 24.07.2026 prescribed that a total EMD of Rs. 13,87,50,520/-, of which Rs. 20,00,000/- was payable online and the balance was payable by way of bank guarantee to be deposited in the tender box at the office of Executive Engineer (Electrical), CLZ, Lucknow Road, Timarpur, Delhi before the cut-off time of 1500 hours on 07.08.2026. On 07.07.2026, a corrigendum was issued revising the total EMD as Rs.13,77,50,520/-.
5. It is the case of the petitioner as contended by Mr. Ankit Jain, learned Senior Counsel that on 06.08.2026 in the evening, the petitioner received the Bank Guarantee document from IDBI Bank Limited. He states that the petitioner successfully uploaded its complete technical and financial bids on the e-procurement portal at 02:45 PM on 07.08.2026, transferred the online EMD component of Rs.20,00,000/- and uploaded a scanned copy of the valid Bank Guarantee for the balance amount and completed SFMS bank verification, all before the cut off-time of 1500 hours on 07.08.2026.
6. He states that owing to severe weather and transit disruption in Delhi NCR, the petitioner’s representative reached the office of the respondent no. 2 with the original Bank Guarantee on 07.08.2026 shortly after the cut-off time. By then the tender box containing EMD Bank Guarantee has already been opened. He states that on 08.08.2026, when the representative of the petitioner called respondent no. 2, the officer refused to accept physical delivery of the Bank Guarantee and advised the petitioner to send its representation by email, the day being a holiday. It follows that the petitioner on 08.08.2026 made its first written representation to respondent nos.1 & 2 explaining the circumstances of non-submission of the original Bank Guarantee within time on 07.08.2026 and demonstrating pre-verified compliance.
7. On 10.08.2026, which was a Monday, the petitioner submitted a second representation to the respondent nos. 1 & 2, enclosing promised additional document- the bank’s SFMS confirmation/undertaking and reiterating pre-verified compliance.
8. He states that however no action has been taken by the respondents. On 13.08.2026, the respondents began opening the online technical bids. The petitioner’s bid is seen in this opening along with name of four other bidders. His submission is that the exclusion of the petitioner from the bidding process is only for the reason that physical copy of the EMD as Bank Guarantee was not submitted before 1500 hours on 07.08.2026. According to him, the submission of the physical copy of the Bank Guarantee, which was ready in all respect on 06.08.2026 and the bid having been submitted on 07.08.2026 at 02:45 PM, could not have been refused by the respondents. He states that accepting the hard copy of the bank guarantee at this s
