Non-Participating Entity Can Challenge Tender Within Reasonable Time, Delay Leads To Escalating Project Costs: Delhi High Court

A division bench of Chief Justice Devender Kumar Upadhyay and Justice Tushar Rao Gedela observed,

“Such of those entities/bidders who do participate in the tender may also, depending upon the facts of each case, be entitled to prefer a writ petition which too must be filed within a reasonable period of such closing date of the submission of the bid, so as to ensure that third party rights are not created in the meanwhile or contract being awarded or the execution of work by a third party commences. This would ensure that the wastage of public time, public exchequer and unnecessary revision of estimated costs of the project, is avoided.”

Ordinarily, a non-participating entity cannot challenge a tender.

In National Highways Authority of India vs. Gwalior-Jhansi Expressway Limited Through Director (2018) the Supreme Court had held that only the entities who participate in the tender process pursuant to a tender notice can be allowed to make grievances about the non-fulfilment or breach of any of the terms and conditions of the tender documents concerned.

A party, who chose to stay away from the tender process, cannot be heard to whittle down, in any manner, the rights of the eligible bidders who had participated in the tender process, it had further held.

In the present case however, the Petitioner challenged the tender floated subsequent to withdrawal of contract from him.

The tendering authority Security Printing And Mining Corporation Of India Ltd. argued that Petitioner has no locus to challenge the tender, having not participated or challenged the terms therein within a reasonable period.

Agreeing, the High Court noted that though the subject tender, floated on 07.03.2025 was in the knowledge of the petitioner, yet it chose not to challenge the tender or its conditions at that stage itself.

It further noted that the Petitioner waited all along till the contract under the tender was awarded to respondent no.3, to challenge it. It observed,

“It is well known that every day's delay, particularly in infrastructure projects, may entail humongous increase in project costs at the behest of persons/entities who, due to their lack of diligence, protract or delay the execution of such projects. Applying the aforesaid principles to the facts of the present case, we find that the writ petition cannot be maintained by the petitioner.”

As such, it dismissed the plea.

Appearance: For the Petitioner : Dr. G.V. Rao, Sr. Advocate with Mr. A.K. Upadhyay, Mr. G. Arudhra Rao and Mr. Mohit Phulera, Advocates. For the Respondents : Ms. Rukmini Bobde, CGSC with Mr. Kapil Dev Yadav, G.P., Mr. Jatin, Mr. Vinayak Aren and Mr. Amlaan Kumar, Advocates for UOI/R-2. Mr. Anupam Lal Das, Sr. Advocate with Mr. Anirudh Singh, Advocate for R-3. Mr. Bijender Singh, Mr. Rakesh Kumar Gogia, Mr. Karan Malik and Mr. Deeksha Sharma, Advocates.

Case title: Rotoffset Corporation v. Security Printing And Mining Corporation Of India Ltd.

Citation: 2025 LiveLaw (Del) 995

Case no.: W.P.(C) 11016/2025

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