The Patna High Court has held that merely participating in a tender process “under protest” does not justify a subsequent challenge to the tender conditions after the bidder's bid has been rejected.

A Division Bench of Acting Chief Justice Sudhir Singh and Justice Rajesh Kumar Verma was hearing a writ petition filed by Adyaraj Developers Pvt. Ltd. challenging an eligibility condition prescribed in tenders floated by the Bihar Rajya Pul Nirman Nigam Limited for construction of rail over bridges.

The petitioner had objected to the tender condition prescribing the financial years 2020-21 to 2024-25 for assessing experience, while the annual financial turnover requirement referred to 2019-20 to 2023-24. It contended that the Standard Bidding Document required the “last five years” to be considered uniformly.

Before participating in the tender, the petitioner submitted a representation dated 25.04.2025 challenging the condition. Since no decision was taken on the representation, it participated in the tender, claiming that it had done so under protest. The petitioner's technical bid was subsequently rejected for not satisfying the prescribed experience criteria. It thereafter approached the High Court challenging the eligibility condition.

The respondents opposed the challenge, contending that the petitioner, having knowingly participated in the tender process despite being aware of the eligibility requirements, could not question those conditions after its bid was rejected.

The High Court held that the petitioner's participation “under protest” did not alter the legal position. The Court observed:

“Merely because the petitioner had submitted a representation or allegedly participated under protest does not alter the legal position. Such representation, or participation under protest cannot, by itself, invalidate the tender process nor can it confer upon the petitioner a right to seek annulment of the process after the result has gone against it.”

The Court noted that the petitioner had been aware of the eligibility conditions before submitting its bid and had consciously chosen to participate in the process. Its contention that it would have been eligible had a different financial period been prescribed was essentially a challenge to the eligibility condition itself.

The Bench further held that the petitioner could not be permitted to “approbate and reprobate” or “blow hot and cold in the same breath” after voluntarily participating in the tender process.

The Court also declined to interfere with the tender authority's decision on the eligibility criteria, reiterating that judicial review does not ordinarily permit the Court to substitute its own view for the commercial or technical wisdom of the tendering authority.

Finding no material to establish that the impugned condition was arbitrary, discriminatory or designed to favour a particular bidder, the High Court dismissed the writ petition.

Case: Adyaraj Developers Pvt. Ltd. v. State of Bihar & Ors.

Case No.: Civil Writ Jurisdiction Case No. 7993 of 2025

Appearance:

For the Petitioner: Mr. Y.V. Giri, Sr. Advocate with Ms. Shrishti Singh, Advocate.

For the Respondents: Mr. P.K. Shahi, Sr. Advocate with Mr. Vikas Kumar, Advocate and Mrs. Aradhana Kumari, Advocate.

For the State: Mr. N.H. Khan, Advocate.

For Respondent No. 11: Mr. Aditya Prakash Sahay, Advocate.

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