Participating In Financial Bid Without Protest Bars Subsequent Challenge To Tender Process Over Technical Flaws: Allahabad High Court - 2025-11-28

Allahabad High Court Upholds Tender Award, Dismisses Unsuccessful Bidder's Challenge Over 'Technical Irregularity'

Lucknow, U.P. – The Allahabad High Court, Lucknow Bench, has dismissed a writ petition filed by an unsuccessful bidder, holding that a company that participates in the financial bidding process without protest cannot later challenge the eligibility of a rival bidder over a minor technical flaw. A Division Bench of Justice Shekhar B. Saraf and Justice Manjive Shukla emphasized the limited scope of judicial review in tender matters, prioritizing public interest in infrastructure projects over procedural molehills.

The Court ruled that the failure to upload a bank guarantee online, when the physical copy was submitted on time, was a "mere technical irregularity" that the tendering authority could rightfully waive.

Background of the Dispute

The case arose from an e-tender floated by the Uttar Pradesh government for a Rs. 143 Crore project involving the construction of residences for High Court judges in Lucknow and Prayagraj. The petitioner, Kasana Builders Pvt. Ltd. , and the respondent, M/s G.S. Express Pvt. Ltd. , were among the bidders.

Initially, on October 17, 2025, a tender summary report indicated that G.S. Express was technically disqualified for failing to upload its Earnest Money Deposit (EMD) bank guarantee of Rs. 93 lakhs on the e-tender portal. However, the company had submitted the physical copy of the bank guarantee on time. The tender evaluation committee later deemed this a curable technical error and, on October 24, 2025, notified all parties, including Kasana Builders, that G.S. Express was now technically qualified.

Subsequently, all three qualified bidders, including the petitioner, participated in the financial bid opening on October 27, 2025. G.S. Express emerged as the lowest bidder, and its bid was accepted. Kasana Builders then filed a writ petition challenging this decision.

Arguments of the Parties

• Petitioner's Stance (Kasana Builders): The petitioner argued that uploading the bank guarantee was a mandatory condition under the tender clauses. They contended that once G.S. Express was declared technically disqualified, the authorities could not legally reverse this decision and allow them to participate in the financial bid.

• Respondents' Defence (State of U.P. & G.S. Express): The State countered that the substantive requirement was met when G.S. Express submitted the physical bank guarantee on time. The failure to upload it was a procedural irregularity, not a fundamental breach. They argued that the petitioner, having been notified of G.S. Express's qualification and having participated in the financial bid without raising any objection, was now estopped from challenging the process. Interfering at this stage, they submitted, would delay a crucial infrastructure project.

Court's Analysis: Public Interest Over Procedural Aberrations

The High Court sided firmly with the respondents, underscoring the well-established legal principles governing judicial intervention in tender matters. The bench found no evidence of mala fides or patent illegality in the authorities' decision to waive the technical error.

The judgment extensively cited Supreme Court precedents, including Tata Motors Limited vs. The Brihan Mumbai Electric Supply and Jagdish Mandal v. State of Orissa , to reiterate that:

> "If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out."

The Court highlighted that the petitioner had a clear window of opportunity to object between October 24 (when they were notified of the rival's qualification) and October 27 (when the financial bids were opened). By choosing to participate, they acquiesced to the process.

In a pivotal observation, the Court stated:

> "The petitioner having participated in the entire tender process, including the financial bid and having the opportunity of raising an objection... cannot now be allowed to raise objections once the financial bid has been accepted. The petitioner by means of the instant writ petition is trying to make a mountain out of a mole hill by pointing out some technical/procedural violation..."

Final Verdict and Implications

Concluding that the petitioner had only managed to create a "kerkuffle without providing any potent evidence," the Court dismissed the writ petition.

The decision reinforces the judiciary's reluctance to interfere in commercial decisions of the executive, especially in large-scale infrastructure projects where delays can lead to significant public cost. It serves as a strong reminder to bidders that any objections to the tender process must be raised at the earliest opportunity, as participation without protest can be interpreted as a waiver of the right to challenge the process later.