M/S THEME ENGINEERING SERVICES PVT. LTD. v. NATIONAL HIGHWAYS AUTHORITY OF INDIA

(iv) Policy Circular No. RW/NH-33044/76/2021-S&R(P&B) dt.

(v) Policy Circular No. 16.12/2022 dt. 18.01.2022

This notice is issued to address the serious lapses in fulfilling your responsibilities as the Independent Engineer (IE) for the old Kali Bridge under the Operation & Maintenance (O&M) Consultancy Agreement. The Expert Committee constituted by NHAI on 10.08.2024 has conducted an investigation into the recent collapse and identified your several critical lapses in ensuring the upkeep and safety of the bridge, which are summarized below. (a) Inadequate Bridge Inspections: As per Clause 6.[4] of the Terms of Reference (TOR) of the Contract Agreement, you were required to carry out condition surveys of Old Kali Bridge using a Mobile Bridge Inspection Unit (MBIU) atleast twice annually, as per the inspection proforma provided in IRC:SP:35. Additionally, visual inspections were to be conducted daily, weekly, and monthly with the results reflected in monthly reports. However, records show that only three inspection reports were issued over one-year period (dated 13.09.2023, 23.01.2024 & 30.07.2024). These reports failed to highlight specific Repair & Rehabilitation and Maintenance concerns, which contributed to the deterioration of the bridge and the eventual collapse. (b) Failure to Identify Critical Issues: The bridge inspection reports submitted by you mentioned dust accumulation in expansion joints and the need for concrete repair around the finger-type expansion joints at hinge locations. However, these reports did not adequately address the root cause of the problemthe closing of the expansion joint fingers due to excessive deflection (drooping) of the cantilever arms. Merely repairing the surface concrete without addressing the underlying issues was insufficient and directly contributed to the worsening condition of the bridge.

(c) Neglect of Pre-Stressing Cable Wire Issues:

The deterioration of the pre-stressing cable wires was identified as a major cause of the bridge collapse. Testing of the cable wires revealed significant reductions in ultimate tensile strength, ranging from 16% to 52%, due to corrosion and elongation. Your inspection reports did not detect or address this critical issue, demonstrating a failure in fulfilling your duties as the Independent Engineer.

(d) Lack of Action Regarding Central Hinge Issues:

It was highlighted as early as 2016 vide letter of IE during construction dated 20.09.2016 that the central hinges of the Old Kali Bridge needed replacement. The hinges were not replaced due to the potential need for bridge closure for 8 months. However, after the new parallel bridge was completed and opened to traffic in 2020, the old bridge could have been closed for repairs, including hinge replacement. Your reports failed to emphasize the urgency of this matter, and no recommendations were made to the Concessionaire or Authority to initiate these crucial repairs. (e) Causes of Failure: The Expert Committee has determined that the collapse of the bridge resulted from a combination of central hinge malfunction and loss of prestress in the cable wires. These issues, which were evident for several years, could have been detected and rectified through timely and thorough inspections. Your failure to conduct proper inspections and report the critical maintenance requirements contributed to the eventual collapse. The Inspection Report of Expert Committee elaborately discusses the reasons for collapse of the aforesaid Kali Bridge, pointing out the shortcomings and failure on the part of Concessionaire. The same be read as part and parcel of the present Show Cause Notice.

2. As an Independent Engineer, you were entrusted with the responsibility of ensuring the bridge's safety and structural integrity through regular inspections and accurate reporting in terms of Cl.6.[3] & 6.[4] of TOR. Your neglect in carrying out these duties as per the Consultancy Agreement as highlighted in the Inspection Report of the Expert Committee, IRC:SP:35 "Guidelines for Inspection & Maintenance of Bridges," and other relevant standards has resulted in severe consequences, including the loss of a critical public asset. You have failed to comply with the reporting requirements under the Consultancy Agreement and have failed to furnish the daily/ weekly/ monthly reports as per the requirement of the terms of reference.

3. Accordingly, the IE was issued a Notice of Suspension at Ref. (i), seeking its revocation, the IE vide its letter at Ref.

(iii) has admitted sagging in the bridge, but has stated the deflection to be within permissible limits. Moreover, the IE has failed to report the said sagging/drooping of the bridge in any of the reports submitted by it. Whereas, the Inspection Report of the Expert Committee in Para 5.[1] clearly states that the drooping/sagging (deflection below desired levels) at hinge locations noticed. Therefore, the Independent Engineer has not only faltered in its obligations under the Consultancy Agreement, but has also made incorrect statements after the collapse of the bridge to evade its responsibility.

4. It is to be noted from the Inspection Report that that the erstwhile IE in its letter dated 20.09.2016 had pointed out need of replacement of the hinges for safety purpose, however, the Independent Engineer failed to take up any follow up action in this regard. Moreover, there is nothing in the reports submitted by the IE that reflect any safety/structural issue in the aforesaid bridge.

5. Therefore, under above said premises, you are hereby called upon to Show Cause within 15 days of this notice as to why action for Debarment of 01 year + penalty (Rs 20 Lakhs) be initiated against you for the gross negligence in services as per Consultancy Agreement in view of Policy Circular No. RW/NH-33044/76/2021-S&R(P&B) dt. 07.10.2021 of MoRT&H & Policy Circular No. 16.12/2022 dt.18.01.2022 of NHAI. Failure to respond within the stipulated time frame will be construed as an admission of failure, and further actions will be taken accordingly, without any further notice. This notice is being issued without prejudice to the Authority's other rights/ remedies available under the Consultancy Agreement and the Applicable Laws. This is issued with the approval of the Competent Authority of NHAI. Yours faithfully, Sd/- (C. K. Sinha) CGM (T)-Karnataka”

10. The petitioner vide a letter dated 07.11.2024 replied to the SCN dated 11.09.2024. On 21.03.2025, the petitioner was granted an opportunity of personal hearing. Pursuant thereto, vide a letter dated 07.04.2025, the petitioner also filed additional submissions for the perusal of the respondent.

11. Thereafter, vide the impugned order dated 11.06.2025, the petitioner was debarred for a period of 1 year along with a fine/penalty of Rs.20 Lakhs by the respondent on account of (i) inadequate bridge inspections and failure to identify critical structural issues (ii) negligence in addressing pre-stressing cable wires deficiencies (iii) inaction regarding central hinges replacement and (iv) contributory negligence to the collapse of Old Kali Bridge. The impugned order reads as under: NHAI/Phase-III/Kun-Goa_KNT/2024/257746 Date: 11.06.2025 WITHOUT PREJUDICE To The Authorized Signatory M/s Theme Engineering Services Pvt. Ltd. B-24, Gokul Vatika, Jawahar Circle Jaipur-302018, Rajasthan Email: bd@themeengineering.com Sub: Notice of Debarment - Independent Engineer Services during O&M for 4-Laning of Goa- Karnataka Border to Kundapur (Km. 93.70 to Km. 283.30) Section of NH-66 in Karnataka on BOT (Toll) Mode. Ref.:

(i) Concession Agreement dt. 25.03.2013 for 4-Laning of Goa-Karnataka

(ii) Contract for Independent Engineer Services dt. 31.12.2020

(iii) NHAI letter no. NHAI/Phase-III/Kun-Goa_KNT/2024/257746 dt.

(iv) IE letter no. Theme/IE-O&M/ Goa-Knk Bodr- Kundapur/2024/4087

(v) Expert Committee Report dated 08.08.2024

(vi) NHAI letter no. NHAI/Phase-III/Kun-Goa_KNT/2024/257746 dt.

(vii) IE letter no. Theme/IE-O&M/ Goa-Knk Bodr- Kundapur/2024/5911

(viii) IE letter no. Theme/IE-O&M/ Goa-Knk Bodr Kundapur/2025/0129 dt. 07.04.2025 Sir This is in reference to the Contract for Consultancy Services dt. 31.12.2020 (“Consultancy Contract”) cited under Ref.-(ii), between NHAI and M/s Theme Engineering Services Pvt. Ltd. ("Independent Engineer") for Independent Engineer Services during O&M for 4-Laning of Goa-Karnataka Border to Kundapur (Km. 93.70-Km. 283.30) section of NH-66 in Karnataka on BOT (Toll) ["Project"]. Kindly refer to the Show Cause Notice issued vide this office letter NO. 257746 dt. 11.09.2024 requiring the Consultant to Show Cause why action for Debarment of 01 year + penalty (Rs 20 Lakhs) be not initiated against them. The Consultant has replied to the Show Cause Notice. The Consultant was offered an additional opportunity of Personal Hearing on 21.03.2025. Upon careful evaluation of the Consultant's response, including submissions during the personal hearing, the following findings and conclusions have been drawn:

1. Inadequate Bridge Inspections and Failure to Identify Critical Structural Issues: 1.[1] As per Clause 6.[4] of the Terms of Reference (TOR) of the Contract Agreement, you were required to carry out condition surveys of Old Kali Bridge using a Mobile Bridge Inspection Unit (MBIU) atleast twice annually, as per the Inspection proforma provided in IRC:SP:35. Additionally, visual inspections were to be conducted daily, weekly, and monthly with the results reflected in monthly reports. However, records show that only three inspection reports were issued over one-year period (dated 13.09.2023, 23.01.2024 & 30.07.2024). 1.[2] The Consultant in its response dt. 07.11.2024 has stated that its Team Leader and Team Inspected the bridges including old Kaali Bridge using MBIU but no distress was observed as notified by Team Leader. This assertion of Consultant is contrary to the submissions of report submitted by the Concessionaire which clearly documented that drooping was visible on the bridge structure prior to the collapse, which indicates presence of long-standing structural issue. 1.[3] The Consultant in its replies has submitted that its team for O&M was operating on this 182 km Project Highway with their minimum professional staff. The Consultant was aware of the Project specifications at the time of bidding and did not raise this concern thereof. Even after mobilization and assessing the project requirements, the Consultant did not suggest for strengthening of the team. Infact, to grab the Contract, the Consultant quoted abnormally low rates of certain key professionals viz. Team Leader cum Highway Engineer Rs 10,000/per month, bridge/structural Engineer Rs 10,000/- per month, Road Safety Expert Rs 10,000/- per month, etc. Therefore, the Consultant in its replies has merely evaded from their responsibilities. 1.[4] The bridge inspection reports submitted by Consultant mentioned dust accumulation in expansion joints and the need for concrete repair around the finger-type expansion joints at hinge locations. However, these reports did not adequately address the root cause of the problem the closing of the expansion joint fingers due to excessive deflection (drooping) of the cantilever arms. The Consultant in its reply has attempted to pass on the blame to previous IE but failed to show what steps were taken by them to keep the old Kaali Bridge in upkeep condition. The Consultant in its letter dt. 07.10.2024 while requesting for postponement of Personal Hearing informed that their team is engaged in detailed study for assessment of stability of all the structures. This exercise of Consultant is an afterthought to collapse of old Kaali Bridge and the Consultant could have carried out such exercises before the incident of bridge collapse.

2. Negligence in Addressing Pre-Stressing Cable Wire Deficiencies: 2.[1] The deterioration of the pre-stressing cable wires and improper grouting was identified as a major cause of the bridge collapse. Testing of the cable wires revealed significant reductions in ultimate tensile strength, ranging from 16% to 52%, due to corrosion and elongation. Inspection reports of Consultant did not detect or address this critical issue, demonstrating a failure in fulfilling the duties as the Independent Engineer. 2.[2] The Consultant in its reply dt. 07.11.2024 stated that they have also obtained opinion of experts from MNIT Jaipur which has suggested that one of the reasons triggering the collapse is loss of pre-stressing of cables. The Consultant in its reply dt. 07.04.2025 submitted the various activities carried out by them related to old Kaali Bridge wherein they have mentioned that NDT tests were carried out on old Kaali Bridge which suggested that the bridge was not in sound condition. However, no remedial action was proposed/suggested by the Consultant. The Consultant also brought out the remedial actions taken by them which are only after the old Kaali Bridge collapsed and is silent about their actions/suggestions prior to collapse.

3. Inaction Regarding Central Hinge Replacement: 3.[1] It was highlighted as early as 2016 vide letter of IE during construction dated 20.09.2016 that the central hinges of the Old Kali Bridge needed replacement. The hinges were not replaced due to the potential need for bridge closure for 8 months. However, after the new parallel bridge was completed and opened to traffic in 2020, the old bridge could have been closed for repairs, including hinge replacement. Your reports failed to emphasize the urgency of this matter, and no recommendations were made to the Concessionaire or Authority to initiate these crucial repairs. 3.[2] The Consultant stated in their reply that no communication was made to them regarding critical pending activities including the replacement of hinges for old Kaali Bridge. This assertion of Consultant shows their lackadaisical approach to take over the project from the previous IE without examining the relevant records or study of the critical issues pending in the project.

4. Contributory Negligence to the Collapse of the Old Kali Bridge 4.[1] The Expert Committee has determined that the collapse of the bridge resulted from a combination of central hinge malfunction and loss of prestress in the cable wires. These issues, which were evident for several years, could have been detected and rectified through timely and thorough inspections. Consultant's failure to conduct proper inspections and report the critical maintenance requirements contributed to the eventual collapse. 4.[2] The Consultant has relied upon findings of Experts from MNIT Jaipur consulted by them which suggests that following were the causes which might have triggered the collapse of old Kaali Bridge: (a) Loss of pre-stressing capacity of the cables and (b) Tilting of the well cap. The report submitted by Consultant lacks specificity about maintenance records, recent inspections & remedial measures taken prior to the collapse. The report merely focuses on imminent causes of failure without taking cognizance of history of inspections.

5. The Consultant is expected to fully adhere to all provisions of the TOR of the Consultancy Agreement and shall be entirely responsible for overseeing the maintenance and operation of the facility to ensure compliance with the Standards, Codes, Concession Agreement. Further, the Consultant must deliver the Services and fulfil its obligations, as set out in the Consultancy Contract, in accordance with accepted professional standards and practices to ensure road user safety. The failure of the Consultant to fully comply with the norms as per the role of Independent Engineer defined in the Concession Agreement, has materially compromised the safety of road users.

6. We have examined the response of the Consultant to the Show Cause Notice and also having given due consideration to the Consultant's representation during the personal hearing. We are not convinced and/or satisfied with the explanations provided by the Consultant for several reasons as stated hereinbefore. Following are the conclusions: a. As stated above, the explanations provided by the Consultant in response to the Show-Cause Notice and during the Personal Hearing are found to be baseless, untenable, and inadequate. b. The Consultant's work has been fundamentally flawed lacking integrity, commitment and sincerity towards the work undertaken. This has resulted in collapse of old Kaali Bridge compromising the safety of road users. c. The Consultant has repeatedly attempted to shirk their responsibilities putting road users at risk. d. The Consultant has violated various technical standards including the terms of the Consultancy Contract and Concession Agreement. The Consultant has violated Clause 3.[2] of TOR by not discharging its duties in a fair, impartial and efficient manner, consistent with the highest standards of professional integrity and Good Industry Practice. The Consultant has violated the terms of Clause 6 of the TOR by not fully complying with all the provisions of the TOR and not identifying the critical issues in the bridge in accordance with the standards and Agreement. e. As the Consultant states that during inspection, no distress was observed in the bridge by its Team Leader, whereas drooping was visible on the bridge structure prior to the collapse. f. Due to the Consultant's acts of dereliction, the Authority has suffered considerable damage to its reputation.

7. The Consultant's acts of omission and commission warrant exemplary action. If not addressed with the necessary seriousness, the Consultant's dereliction could lead to repeated instances of such conduct, not only by the Consultant but also by others interacting with NHAI, thereby fostering an environment conducive to improper practices and a waste of public funds.

8. The transgressions of the Consultant and its complete disregard of its duties are very serious. Therefore, it has been decided to debar the Consultant for a period of 01 year and prohibit it from participating in future bids for a period of 01 year, effective from the date of this letter. It is also decided to impose a penalty of Rs 20 Lakhs for the gross negligence in services as per Consultancy Contract.

9. This Debarment Letter is being issued without prejudice to Authority's right to take other actions including but not limited to claim of damages and/or to realize any dues, losses and damages and/or to exercise any other remedy on account of Consultant's failure to comply with its obligations under this Consultancy Contract, which may be available now or in future under the Consultancy Contract or under the applicable laws or other-wise, as the case may be. This issues with the approval of the Competent Authority of NHAI. Yours faithfully, Sd/- (Pankaj Asati) GM (T)-Karnataka”

12. Learned counsel on behalf of the petitioner contended that the personal hearing fixed on 21.03.2025 by the respondent was nothing but an empty formality wherein the petitioner was only directed to submit relevant report/s of the inspections carried out by the petitioner viz. the collapsed bridge. In compliance of the aforesaid, the petitioner on 07.04.2025 submitted the requisite information and also made a request for fixing a time for personal hearing before the competent authority. However, instead, without affording an effective personal hearing to the petitioner, respondent passed the impugned order. It is further contended that the impugned order also failed to deal with the additional submissions dated 07.04.2025 and reply dated 07.11.2024 to the SCN dated 11.09.2024 filed by the petitioner.

SUBMISSIONS ON BEHALF OF THE PETITIONER

13. It is further submitted that even though the impugned order debars the petitioner from participating in future bids, respondent in breach of (i) its own debarment order (paragraph 8) (ii) MoRTH Circular dated 07.10.2021 (paragraph 9) (iii) in contravention of decision rendered by a coordinate Bench of this Court in Redecon India Pvt. Ltd. v. NHIDCL, 2023/DHC/000140, declared the petitioner as ‘non-responsive’ in the revised technical evaluation of an ongoing bid (Sinnar-Shirdi Section) on 12.06.2025 on the basis of the impugned action.

14. It is further submitted that the petitioner in terms of clause 6.[4] of the ToR, had submitted MBIU reports dated 23.12.2021,31.05.2022, 18.11.2022 and 19.07.2023 informing the respondent that the Non-Destructive Testing (NDT test) values for girders and abutment on the Old Kali Bridge failed. Further, it is stated that the team leader of petitioner vide letters dated 22.06.2023, 13.09.2023, 23.01.2024 notified the poor condition of the said bridge to respondent and the Concessionaire. Furthermore, the petitioner is stated to have also submitted the structure/bridge inspection report dated 30.07.2024 wherein the petitioner again pointed out structural deficiencies in the aforementioned bridge.

15. It is also pointed out that a report dated 05.06.2024, released by another independent consultant (M/s RITES), appointed by the respondent to conduct safety audit of the highway project declared the project including the Old Kali Bridge to be safe and reliable. It is further submitted that three premier agencies i.e., the Expert Committee of respondent, Malviya National Institute Technology, Jaipur and M/s Assystems India Ltd. separately conducted a thorough examination of the collapsed bridge and came to a common conclusion that the collapse was caused due to fundamental construction defect rather than any deficiency in maintenance.

16. It is submitted that had it been a collapse due to failure of maintenance, the same could have been rectified through maintenance and the Expert Committee in terms of suggestive measure 7.[1] would not have instead suggested for dismantling and demolishing the entire Old Kali bridge. The aforesaid is further indicative of the fact that the collapse was caused due to construction failure which has no relation with failure of maintenance.

17. It is further submitted that the contractual role of the petitioner as a maintenance consultant was limited in terms of clause 6.[2] and 6.[4] of the TOR, primarily to visual inspections and routine NDT.

18. It is further contended that the internal corrosion of prestressing cables due to missing/non-uniform grout during construction is the root cause for collapse and is a major lapse which occurred during the course of construction. It is stated that the said lapse is undetectable visually or through routine MBIU/NDT and detecting the same requires invasive, destructive testing which is beyond the scope of the petitioner as a maintenance consultant. Furthermore, the aforesaid can be corroborated from the report of Expert Committee as well as the concessionaire’s report which explicitly states that “Extent of grouting and corrosion is not possible to be evaluated on the basis of visual inspection”.

19. It is also contended that despite the expert committee report concluding that in 2020 the Concessionaire and erstwhile consultants should have closed down the bridge to replace the central hinges, the impugned order saddles the petitioner with liability.

20. Additionally, learned counsel on behalf of the petitioner filed an application bearing no. 41880/2025 seeking to bring on record additional/supplementary report dated 11.07.2025, in terms of which it is averred that the final conclusion for collapse, arrived at in the supplementary report is “due to the breaking of pre-stressing cables due to corrosion’ alone as against the other probable causes underlined in the Expert Committee report dated 08.09.2024. By placing reliance on the aforesaid findings, it is contended that the final cause for collapse of bridge, as stated in the supplementary report is a hidden internal defect and was not visible to the petitioner during monthly inspections and thus beyond the scope of inspection to be undertaken by the petitioner.

21. Learned counsel on behalf of the respondent submitted that the impugned action was taken by the respondent after issuance of SCN dated 11.09.2024, and after affording the petitioner an opportunity of personal hearing on 21.03.2025, and considering the defence-set up by the petitioner.

SUBSMISSIONS ON BEHALF OF THE RESPONDENT

22. It is submitted that the report submitted by the Expert Committee on 08.09.2024 categorically establishes the default and liability of the petitioner (paragraphs 5.1.[3] to 6.3). It is also stated that the report highlights the gross failure on part of the Independent Engineer in raising and notifying the issues that led to the collapse of the bridge and also notes that the incident could have been averted if the Independent Engineer had been more vigilant.

23. It is further submitted that in terms of the existing policy of the respondent, any entity blacklisted after submission of the bid but before the grant of Letter of Award and execution of contract shall be treated as unresponsive for the concerned tender. For substantiating the aforementioned submission reliance is placed on paragraph 16 of OM No. F- 1/20/2018-PPD dated 02.11.2021 issued by the Department of Expenditure, Ministry of Finance, Government of India which stipulates that no contract will be placed upon an entity which stands debarred as on date of the contract or opening of the tender. It is further pointed out that after issuance of the aforementioned guidelines, paragraph 9 of the MoRTH circular dated 07.10.2021 (relied upon by the petitioner) has been amended by paragraph 10.[1] and 10.[2] of the NHAI Policy Circular No.16.12/2022 dated 18.01.2022 and paragraph 4 of the NHAI Policy Circular no. 16.16/2022 dated 11.11.2022.

24. It is further contended that the reliance placed by the learned counsel of the petitioner on Redecon India Pvt Ltd. (supra) is misplaced inasmuch as the said judgment solely takes into consideration the policy circular dated 07.10.2021 and does not take into account the amended position as per the aforementioned circulars dated 02.11.2021, 18.01.2022 and 11.11.2022. Therefore, the facts of the present case stand distinguished and the decision rendered in Redecon India Pvt Ltd. (supra) is not applicable to the present petition.

25. I have considered the rival contentions of respective counsel for the parties.

ANALYSIS & CONCLUSION

26. The law as regards the necessity to adhere to procedural due process before resorting to any debarment/blacklisting action, is well settled and has been emphasized by the Supreme Court time and again in a catena of judgments. In Gorkha Security Services vs. Government (NCT of Delhi), (2014) 9 SCC 105, it was held as under: -

death” of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts.”

27. The said view has also been reiterated by the Supreme Court in UMC Technologies Private Limited vs. Food Corporation of India and Anr.,

(b) Natural justice or audi alteram partem does not always require a hearing to be granted. Serving of show cause notice and affording an opportunity to reply to the same, is considered as being adequate opportunity and is sufficient adherence to the principles of natural justice

(c) Blacklisting constitutes civil death and has extremely grave consequences. Thus, the same is amenable the judicial review if the same is by governmental authorities;;

(d) Any order of blacklisting ought to contain proper reasons. The reasons need not be detailed or elaborate. It is sufficient to be brief, pithy and concise (e) Reasons should be supplied to the affected party;; (f) Decision taken ought not to be arbitrary or discriminatory. (g) Blacklisting orders being amenable to judicial review can be judged on the standard of proportionality. Thus, the period of blacklisting as also terms and conditions thereof have to be proportionate to the irregularities or conduct of the bidder.” (emphasis supplied)

29. Evidently, in the present case, the impugned order was preceded by (i) a SCN dated 11.09.2024 (ii) reply to the SCN dated 07.11.2024 (iii) a personal hearing/ meeting dated 21.03.2025 between the petitioner and respondent and (iv) additional submissions by the petitioner vide a letter dated 07.04.2025.

30. As such, it cannot be said that there has been denial of procedural due process or any infraction of the principles of natural justice in the decisionmaking process, leading upto issuance of the impugned order.

31. As far the merits of the allegation/s against the petitioner, the scope of interference therewith is limited in the context of the peculiar facts and circumstances and especially, considering that the same is premised on an expert appraisal of technical aspects as set out in an expert committee report.

32. In Silppi Constructions Contractors vs Union of India., (2020) 16 SCC 489 the Supreme Court has taken a view that “in contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain”.

33. Further, in SA Infrastructure Consultants Pvt. Ltd. vs National Highway Authority of India, 2024: DHC:5095, a coordinate Bench of this Court reiterated the aforesaid view and observed as under: -

34. The decision rendered by a coordinate Bench of this Court in S.A Infrastructure Consultants Pvt. Ltd (supra) has been upheld by a Division Bench of this Court in LPA 676/2024 vide a judgment dated 23.08.2024; it has been observed therein as under:-

35. In the present case, a perusal of the impugned order reveals that the following findings have been rendered therein against the petitioner: i. There was a deficiency in conducting requisite inspections (paragraph 1.[1] of the impugned order); ii. The drooping of the concerned bridge was visible on the bridge structure prior to the collapse, which indicates presence of longstanding structural issue/s. However, the consultant/ petitioner failed to notice the same and take remedial steps. (paragraph 1.[2] of the impugned order); iii. There was inadequacy of mobilisation and assessment of project requirements (paragraph 1.[3] of the impugned order); iv. The bridge inspection reports submitted by the consultant/ petitioner did not address the root cause of the problem i.e., the closing of the expansion joint fingers due to excessive deflection (drooping) of the cantilever arms. (paragraph 1.[4] of the impugned order) v. There was negligence in addressing pre stressing cable wire deficiencies (paragraph 2.[1] of the impugned order) vi. The petitioner/ consultant did not take requisite steps even when it was highlighted as early as 2016 vide letter of independent engineer that the central hinges of the Old Kali Bridge needed replacement. (paragraph 3 of the impugned order) vii. Importantly, the impugned order notes that the expert committee has determined that the “collapse of the bridge resulted from a combination of central hinge malfunction and loss of pre-stress in the cable wires. These issues, which were evident for several years, could have been detected and rectified through timely and thorough inspections. Consultant’s failure to conduct proper inspections and report the critical maintenance requirements contributed to the eventual collapse”.

36. It is also noticed that the impugned order also takes note of and deals with the defences put forth by the petitioner and concludes as under: -

37. Further, the reliance placed by the petitioner on a Supplementary Report dated 11.07.2025 (taken on record by this Court vide an order dated 17.07.2025 passed in the present proceedings) is wholly misconceived and untenable. The fact that the Supplementary Report attributes “snapping/breaking of pre-stressing cables due to corrosion” as the “main reason” for collapse of the bridge does not detract from the conclusion recorded in the impugned order as well as the Expert Committee report dated 08.09.2024. The said report dated 08.09.2024 clearly observed that had the defects been duly identified, reasonable diligence been exercised and timely action undertaken by the concerned entities, including the petitioner, the accident/incident (collapse of Old Kali Bridge) could have been averted.[1]

38. The impugned order rightly takes notes of the gravity of the accident/ incident involving collapse of the Old Kari Bridge, and the necessity to take appropriate action. It can hardly be disputed that maintenance of the structural integrity/ safety of bridges/ public highways is of paramount concern and any laxity or omission on the part of any agency engaged for such a sensitive exercise, cannot be countenanced. The Supplementary report merely supplements the Expert Committee report dated 08.09.2024 and neither alters nor supersedes the findings recorded in the latter.

39. In the peculiar factual conspectus, this Court is of the view that the conclusions drawn in the impugned order are unexceptional. Also, as noticed, the impugned order as well as the process leading up to the issuance Relevant portion of the Expert Committee Report dated 08.09.2024 reads as under: “5.1.[4] Role & Responsibility of IE- As per TOR of Operation & Maintenance contract agreement (clause 6.4), the Independent Engineer was to carry out condition survey of bridge using MBIU to capture the details of bridge at least twice in a year, as per inspection proforma provided in IRC SP 35. Also they were required to do visual inspections of the bridge on daily, weekly and monthly basis and the same should be reflected in monthly report (copy of relevant TOR is at Annexure-IV). However, as per available record M/s Theme Engineering (IE) during O & M issued only three inspection report dated 13.09.2023, 23.01.2024 & 30.07.2024 (copy of inspection reports at Annexure-V) in one year duration to the Concessionaire. Moreover these reports don’t reflect the specific repair & rehabilitation issues of this bridge. 6.[1] Progressive loss/failure of pre-stress was apparent sign of distress in the form of drooping of cantilever tip at central hinges. This caused formation of valleys (sagging) in each of four 122m spans. Based on the analysis & findings of the site inspection and available records the committee is of the opinion that the collapse took place due to excessive drooping / sagging of central Hinge of span P1-P[2] / P2-P[3] caused by malfunctioning / damages of central Hinges as well as losses in pre-stressing cable wires and corrosion. This could have been avoided, had the site key personnel of concessionaire and Independent Engineer been more vigilant. Timely reporting could have allowed for strengthening and rehabilitation preventing failure and total loss of asset. This inference is based on the fact that as recommended vide letter dated 20.09.2016 (Annexure-III) the Hinges were also required to be replaced but could not be done as it required closing of the bridge for about 8 months. Instead packing with Graphite Plates were done to stop hammering at the hinge locations during passage of vehicles as per suggestions of experts of JICA who otherwise certified bridge to be safe. Also JICA advised that hinges can be replaced later on when new bridge is in place i.e. 100% traffic closure on existing bridge.” of the same does not suffer from any procedural infraction. Thus, the same brooks no interference in these proceedings under Article 226 of the Constitution of India.

40. The petitioner has also sought to canvass the issue that the respondent’s action of declaring petitioner as ‘non- responsive’ in the revised technical evaluation of an ongoing bid (Sinnar-Shirdi Section) on 12.06.2025 on account of the impugned action is in contravention of paragraph-9 of the MORTH Circular dated 07.10.2021. However, the said contention is misconceived inasmuch as OM No. F-1/20/2018-PPD dated 02.11.2021 issued by the Department of Expenditure, Ministry of Finance, Government of India stipulates that bids shall be awarded only to the firms which are neither debarred on the date of opening of the tender nor on date of contract. The relevant portion of the said OM reads as under: “Other Provisions (common to both types of debarment)

16. No contract of any kind whatsoever shall be placed to debarred firm including its allied firms after the issue of a debarment order by the Ministry/Department. Bids from only such firms shall be considered for placement of contract, which are neither debarred on the date of opening of tender (first bid, normally called as technical bid, in case of two packet/two stage bidding) nor debarred on the date of contract. Even in the cases of risk purchase, no contract should be placed on such debarred firms.

17. If case, any debar firms has submitted the bid, the same will be ignored. In case such firm is lowest (L-1), next lowest firm shall be considered as L-1. Bid security submitted by such debarred firms shall be returned to them.”

41. Further, it has been brought out that after issuance of the aforementioned guidelines by the Department of Expenditure, Ministry of Finance, Government of India, NHAI Policy Circular No.16.12/2022 dated 18.01.2022 and the NHAI Policy Circular no. 16.16/2022 dated 11.11.2022 came to be issued.

42. The NHAI Policy Circular No.16.12/2022 dated 18.01.2022 also stipulates that bids of only those firms will be considered which are neither debarred on the date of opening of the tender nor debarred on the date of issuance of Letter of Acceptance. The relevant portion of the said circular reads as under:

Contracts concluded before the issue of the debarment/ declaration as non-performer order shall, not be affected by the debarment order(s) issued subsequently.

43. Moreover, the NHAI Policy Circular no. 16.16/2022 dated 11.11.2022 inter-alia stipulates that in case of debarment, the provisions mentioned in Department of Expenditure, Ministry of Finance, Government of India vide OM No. F-1/20/2018-PPD dated 02.11.2021 shall be followed. The said circular reads as under:- “NHAI vide Policy Circular No. 16.11/2021 dated 16.11.2021 (Annexure-1) issued detailed Standard Operating Procedure to debar/penalize/declare as Non-Performer the Contractor/Concessionaire in NHs and other centrally sponsored road projects, NHAI also issued its subsequent amendment vide Policy Circular No. 16.14/2022 dated 31.01.2022 (Annexure-2).

2. Ministry of Finance, Department of Expenditure, vide OM No. F- 1/20/2018-PPD dated 02.11.2021 (Annexure-3) had issued guidelines on debarment of firms from bidding. Ministry of Road, Transport & Highway vide its OM No. NH-35014/20/2020-H-Part(2) dated 18.08.2022 (Annexure-4) has directed that all the implementing agencies of MoRTH shall follow these Guidelines in letter and spirit.

3. It is observed that after Show Cause Notice has been issued, technical divisions do not conclude the bidding process and wait for debarment process to get completed which delays the entire bidding process. In the matter it is reiterated that MoF guidelines dated 02.11.2021 are amply clear that the period of debarment shall start from the date of issuance of Debarment Order. Accordingly, in case any Show Cause Notice related to debarment has been issued to any bidder, this should not be considered as a reason to halt the bidding process. However, extract of issuance of such show cause notice to a bidder should be hosted on the procurement portal for information of all the bidders.

4. In case any bidder/firm is debarred till agreement is signed, provisions mentioned in Ministry of Finance, Department of Expenditure vide OM No. F-1/20/2018-PPD dated 02.11.2021 shall be followed.

5. This issues with the approval of Competent Authority.”

44. Further, the decision of a coordinate Bench of this Court in Redecon India Pvt Ltd. (supra) is distinguishable inasmuch as the said order has been passed only in terms of MoRTH circular dated 07.10.2021 and the Court therein has not adjudged the aforementioned subsequent circulars issued by Department of Expenditure, Ministry of Finance, Government of India and NHAI.

45. In the aforesaid conspectus, the respondent’s decision to declare the petitioner as ‘non-responsive’ on 12.06.2025, on account the impugned order, was in consonance with the existing policy/ies of the respondent. As such, this Court finds no occasion to interfere therewith.

46. Accordingly, the present petition (along with pending application/s) is dismissed.

SACHIN DATTA, J NOVEMBER 14, 2025 uk, sl