M/s San Energy and Solution Pvt. Ltd. vs The State Of Bihar & Ors.

“(i)

To issue an appropriate writ, order, direction in the nature of certiorari for quashing the orders contained in emails dt. 29.04.2026 by which the technical bids of the petitioner has been declared disqualified/non-responsive in relation to package no. 2, 7, 13 and 18 of NIT bearing NIT No. 92/PR/SBPDCL/2025 for the erroneous reason that M/s San Energy and Solution Private Ltd. has been debarred vide BREDA Order No. 79 dt 21.04.2025. (Annexure-P/9, Pg.245).

(ii)

To issue an appropriate writ, order, direction in the nature of Mandamus directing the respondent authorities to qualify the technical bid of the petitioner in relation to package no. 2, 7, 13 and 18 of NIT bearing NIT No. 92/PR/SBPDCL/2025 and subsequently open the financial bid of the petitioner.

(iii)

To issue an appropriate writ, order, direction in the nature of certiorari for quashing any consequential action taken pursuant to the impugned decision including quashing of opening of financial bid, any letter of award, agreements entered with third party, if any.

(iv)

To pass interim / ex-parte interim order staying the opening of financial bid and subsequent tender process in relation to package no. 2, 7, 13 and 18 of NIT bearing NIT No. 92/PR/SBPDCL/2025 and/or no agreement or work order be issued in favour of third party in relation to package no. 2, 7, 13 and 18 of NIT bearing NIT No. 92/PR/SBPDCL/2025 dt. 24.12.2025, during the pendency of writ application.

(v)

To any other relief or reliefs for which the petitioner is found to be entitled to in the facts and circumstances of the case.”

“The bidder may seek qualification on the basis of technical and financial capability of its parent(s) and/or its affiliate(s) for the purpose of meeting but qualification requirements. Authorization for use of such technical or financial capacity shall have to be provided from its parent(s) and/or affiliate(s). The technical and financial capability of a particular entity, including its parent(s) and/or affiliate(s) shall not be used by more than one bidder.

The determination of the relationship of parent(s) and/or affiliate(s) with the bidder shall be on the date 7 days prior to the bid submission deadline. Documentary evidence to establish such relationship shall be furnished by the bidder along with the technical bid.

"Parent(s)" shall mean a company or an AIF or of foreign investment fund that holds at least 26% of the paid up equity capital directly or indirectly in the bidder common as the case may be."

“1.2. General Eligibility Criteria

1.2.1. Bidders participating in the RFP will be required

to meet the following eligibility criteria (as applicable). The Bidder must fall under either of the following categories:

The Bidder shall be a Company/Limited Liability Partnership (LLP) Firm/Partnership Firm in any form submitting the Bid. Any reference to the Bidder includes its successors, executors and permitted assigns. Bids from joint ventures/consortium are acceptable. The Bidder should be a body corporate incorporated in India under the Companies Act, 1956 or 2013 including any amendment thereto or a Partnership Firm having executed Partnership Deed and registered as per sections 58 & 59 of the Partnership Act, 1932, as amended or a Limited Liability Partnership Firm (LLP) registered under section 12 of Limited Liability Partnership Act, 2008, as amended. A copy of certificate of incorporation, Partnership Deed or LLP, as applicable and relevant, shall be enclosed. A copy of the certificate of incorporation, or LLP registration, as applicable and relevant, shall be enclosed.

1.2.2. Financial and Technical Eligibility Criteria

a. Financial Eligibility Criteria

The Bidder must demonstrate sufficient financial stability and capability to fulfill the Financial Eligibility Criteria outlined in this tender. To qualify, the Bidder shall meet the minimum requirements for Annual Turnover and Net Worth as specified below:

i. Annual Turnover:

Bidder should have a Minimum Average Annual Tumover of INR 1 Crore per MW based on the total estimated capacity of the respective Circle (for which the bid is submitted) for at least 3 Financial Years of the last 5 Financial Years, i.e., satisfying the criterion in at least 3 Financial Years from FY2020-21 to FY 2024-25. As described in annexure-E

ii. Net Worth:

The Net Worth of the Bidder for the Financial Year that ended on 31.03.2025, shall be 50 lakhs/MW. Further, the Net Worth of the Bidder for 5 Financial Years should be non-negative, i.e., satisfying the criterion in last 5 Financial Years from FY2020-21 to FY 2024-25.”

“18.

In the recent decision in Tata Cellular v. Union of India this Court has examined the scope of judicial review in the field of exercise of contractual powers by Government bodies and, after noticing the current mood of judicial restraint in England, the Court has laid down the following principles:

"(1)

The modern trend points to judicial restraint in administrative action.

(2)

The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3)

The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision. without the necessary expertise which itself may be fallible.

(4)

The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5)

The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facets pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6)

Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

“23.

Even if it be assumed that the requirement regarding experience as set out in the advertisement dated 22-4-1993 inviting tenders is a condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be borne in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into the background of the company and the persons who are in control of the same and their capacity to execute the work. He would go not by the name of the company but by the persons behind the company. While keeping in view the past experience he would also take note of the present state of affairs and the equipment and resources at the disposal of the company. The same has to be the approach of the authorities while considering a tender received in response to the advertisement issued on 22-4-1993. This would require that first the terms of the offer must be examined and if they are found satisfactory the next step would be to consider the credentials of the tenderer and his ability to perform the work to be entrusted. For judging the credentials past experience will have to be considered along with the present state of equipment and resources available with the tenderer. Past experience may not be of much help if the machinery and equipment is outdated. Conversely lack of experience may be made good by improved technology and better equipment. The advertisement dated 22-4-1993 when read with the notice for inviting tenders dated 26-4-1993 does not preclude adoption of this course of action. If the Tender Evaluation Committee had adopted this approach and had examined the tender of NHL in this perspective it would have found that NHL, being a joint venture, has access to the benefit of the resources and strength of its parent/owning companies as well as to the experience in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies namely, TPI, LMI, WML, etc. and Mr Aroon Purie and 40% of the share capital is owned by IIPL a wholly-owned subsidiary of Singapore Telecom which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories. Moreover in the tender it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India."