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Petitioner: Assetlink Asia (Private) Limited VS Respondent: Federation of Pakistan & Others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Agha Faisal Title: Assetlink Asia (Private) Limited vs Federation of Pakistan & Others Case No.: (1) C P D - 7687 of 2017 (2) C P D - 8172 of 2017 Date of Judgment:2019-02-12 Reported As: 2020 CLC 410, 2019 SHC 31 Result: petition allowed
Judgment Agha Faisal , J: The present petitions challenge the tendering process and the consequential award of a contract by the Federal Board of Revenue ("FBR") for the monitoring of bonded cargo transportation from the point of customs entry to the point of customs existing within the territory of Pakistan ("Contract ") to NLC Construction Solution Private Limited ("NCSPL "), being a respondent in both the petitions, inter alia, on the grounds that the conferment of such a contract was a result of misprocurement , as defined under the public procurement laws. 2. The petitioner filed CP D 7687 of 2017 on the premise that the petitioner , being a constituent of one of the bidders, was aggrieved on account of such the Contract having been awarded through misprocurement. The other petition, being CP D 8172 of 2017, is filed challenging the award of the same Contract but the petitioner , despite not having participated in the process, seeks the exercise of jurisdiction by this Court on the grounds of public interest being involved in the matter . The controversy in each of the two petitions is identical, hence, this common judgment shall determine the fate thereof. 3. Mr. Haider Waheed, Advocate argued on behalf of the petitioner in CP D 7687 of 2017 and submitted that the tender under consideration came about as a result of the National Logistic Cell ("NLC") having lost 28,000 containers entrusted into its custody for safe transit upon arrival in Pakistan. It was argued the aforesaid matter was the subject matter of suo moto proceedings before the honorable Supreme Court and subsequently it was decided that independent tracking mechanism be put in place so as to mitigate the chances of such a catastrophe happening again. It was contended that the procurement laws were willfully flouted in order to award the Contract to NCSPL, admittedly a fully owned subsidiary of NLC. Per learned counsel the award of contract to a party to monitor and track its own operations is an inherent conflict of interest and violates the directives of the honorable Supreme Court and the enshrined princi ples of transparency in administration. The arguments advanced by the learned counsel in such regard are encapsulated and resented herein below:
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i. It was submitted that the petitioner was a joint venture partner , and subsequently shareholder of the entity that participated in the bidding process / tender for the award of the Contract. It was submitted that at the time of the tender the petitioner was independently competent to perform the tasks required in respect of the tender on its own accord and met the standards of prequalification laid down in the Monitoring and Tracking in the Cargo Rules 2012 ("2012 Rules "). It was categorically submitted that the advertised tender was a two stage process and that NCSPL was demonstrably not a participant therein. ii. Per learned counsel, NCSPL was belatedly and unlawfully parachuted in to the tender process and further that the terms of the tender were unilaterally altered, post opening of bids, to facilitate NCSPL, at the cost of the actual bidders. Learned counsel argued that the subsequent variation in the evaluation criteria, alien to the bidding documents, could not be undertaken by the procurement authority . It was further stated that the bids once opened stood frozen and the underlying terms could not be modified thereafter without recourse to an open process, by virtue whereof equal opportunity would be available to all concerned. iii. Per learned counsel, the entity whereof of the petitioner was constituent was the highest bidder for the Contract and the same was demonstrated from the record. It was shown that upon the evaluation criteria being unlawfully and unjustifiably altered the status of the highest bidder was diluted, in order to confer declare NCSPL successful, who was otherwise least qualified in respect thereof. 4. Mr. Asad Iftikhar , Advocate, representin g the petitioner in CP D 8172 of 2017, adopted the arguments articulated by Mr. Waheed and in addition thereto placed reliance upon the judgments in the case of Popular International (Pvt.) Ltd. vs. Province of Sindh reported as PLD 2016 Sindh 19 ("Popular "), Salahuddin Dharaj vs. Province of Sindh reported as PLD 2013 Sindh 236 ("Salahuddin ") and Atta Ullah Khan Malik vs. Federation of Government of Pakistan reported as 2010 PLD Lahore 605 ("Atta Ullah ") to justify the maintainability of the said petition as on the ground of it being public interest litigation. 5. Mr. Shahid Ali, Advocate argued on behalf of the FBR and submitted that the present petitions were misconceived; and that CP D 7687 of 2017 was even otherwise not maintainable as the petitioner was demonstrably not an aggrieved party . It was submitted that the said petitioner was admittedly not a bidder in the tender process and was merely a joint venture partner / shareholder in the entity that participated in the said process. It was submitted that the entity that participated in the process had initiated legal proceedings in respect of the Contract but had subsequently withdra wn the same. It was contended that while the said petitioner may have a cause of action against its joint venture partner , it certainly had no justifiable cause to prefer the present petition. Learned counsel sought to argue that NCSPL was always contemplated as a constituent of the original bidders, however , the same was not reflected in the relevant documentation at the earlier stage merely on account of non- completion of some minor formality within time. Learned counsel relied upon rule 17 of Public Procurement Rules, 2004 ("Rules ") and stated that procurement agency was empowered to seek further information at any stage of the procurement proceedings. Learned counsel also relied upon rule 36(c)(iv) of the Rules to demonstrate that the power to revise was always available with the FBR. In order to augment his conten tions, learned counsel sought to place reliance on the case of Pakistan Gas Port Ltd. vs. Sui Southern Gas Co. Ltd and Others reported as PLD 2016 Sindh 207 ("Pak Gas Port "). 6. Mr. Kashif Imaduddin, Advocate representing NCSPL submitted that the present petitions merit dismissal forthwith. It was submitted that NCSPL is a wholly owned subsidiary of NLC and that the issue of the so called NLC scam was disposed of by the honorable Supreme Court vide order dated 28.06.2018. It was submitted that the suit filed in respect of the Contract had alread y been withdrawn by the unsuccessful bidder , of whom the petitioner in CP D 687 of 2017 was a mere constituent and that no demure was raised by the said petitioner in respect of such withdrawal. It was stated that there is no vested right for award of a contract in any entity and hence the same could not be made the basis for maint aining the present petition. Learned counsel relied upon the case of Habibullah Energy Limited vs. Water and Power Development Authority reported as 2008 YLR 2612 ("Habibullah ") to augment his submissions in such regard. It was argued that the award of the Contract to NCSPL was in due conformity with the public procurement laws and that no infringement had taken place in such regard. It was further submitted that the two initial bidders were given the status of probable solution providers and that presence of the
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term "probable" precludes any right to expect or demand that no other probable applicant should have been included in that list at any subsequent stage. 7. We have heard the arguments advanced by respective learned counsel and have also appreciated the voluminous documentation and case law arrayed before us. The question before this Court is whether the tendering process culminating in the award of the Contract was in accordance with the law, however , prior to entering into the said deliberation it is considered paramount to determine the question of maintainability of the present petitions. 8. It is noted that a Letter of Invitation issued by FBR, dated 20.10.2015, in favor of Falcon-I, being the respondent No. 4 in CP D 7687 of 2017 ("Fi"). The petitioner was stated to be a joint venture partner of Fi and a deed to such effect was also placed on the record. The letter issued by the FBR dated 09.12.2015 intimated Falcon-i (Private) Limited ("FiPL") that their technical bid has qualified for further consideration. Per learned counsel of the petitioner, FiPL was the successor in interest of Fi specifically constituted for the purpose of participating in the tender under consideration and that the petitioner was a shareholder in the said entity. It is thus apparent that the petitioner being a distinct corporate legal entity itself was not a bidder in respect of the tender process under consideration. A suit, being Suit 1007 of 2016, was filed by FiPL against the respondents herein, whereby the procurement process under challenge herein was called into question. Admittedly, the petitioner was not a party to the said proceedings and nor did the petitioner ever seek to become a party to the said proceedings. The aforesaid suit was unconditionally withdrawn by FiPL and the same is manifest from the order dated 19.10.2017 rendered in Suit 1007 of 2016. It is within our contemplation that while the petitioner claims to be a shareholder of FiPL, it is a distinct legal entity independent thereof and thus was entitled to initiate proceedings if any grievance was occasioned thereto. In this connection it was brought to our knowledge that the petitioner did institute Suit 2358 of 2017 against FiPL wherein the petitioner prayed, inter alia, for damages on the assertion that FiPL having acted contrary to the interests of the petitioner in respect of the tender process under consideration. It has been alleged by the petitioner in its memorandum of petition that Fi/FiPL has alienated the rights of the petitioner whilst illegally colluding with NCSPL in sabotaging the challenge to the tender process under consideration. It is thus manifest that upon the unconditional withdrawal of Suit 1007 of 2016 by FiPL on 19.10.2017, the petitioner instituted Suit 2358 of 2017 there-against on 10.11.2017. In this manner the petitioner appears to have determined the course of action available thereto and filed the requisite proceedings to remedy its grievances. However , on 09.05.2018, the petitioner opted to withdr aw Suit 2358 of 2017 and hence divested itself of the remedy that it may have been entitled to in such regard. In view of the discussion it is considered opinion of the Court that the petitioner in CP D 7687 of 2017 is not an aggrieved party and while recourse may be available thereto to remedy any grievance that it may have, resort to the Constitutional jurisdiction of this Court could not be invoked in the present facts and circumstances. 9. The other petition, CP D 8172 of 2017, was filed in the nature of public interest litigation. The learned counsel for the petitioner had relied upon the ratio of the earlier Division Bench pronouncements of this Court in Popular and Salahuddin and also a judgment of a Division Bench of the honorable Lahore High Court in the case of Atta Ullah. Popular maintained that if the facts of a case have a discernible nexus with public interest which merits an expeditious disposal to safeguard and vouch for the rights of general public then such a matter could be referred to and be determined by the exercise of constitutional jurisdiction of this Court. It was observed in Salahuddin that any person may bring an issue before the Court if it is related to public functionaries and or work affecting the general public. It was also observed that illegal exercise of powers by a government functionary remained subject to scrutiny by this Court, being the custodian and guardian of the fundamental rights of the citizens. The Division Bench of the Lahore High Court maintained in Atta Ullah that once the Court assesses that a breach of trust or a violation of public law has taken place, the Court must immediately to rectify the breach and the identity or antecedents of the petitioner pale into insignificance. It was also noted that while the learned counsel for the respondents objected to the maintainability of CP D 7687 of 2017 on the grounds that the petitioner therein had no locus standi to maintain the said petition, no objection was raised with regard to the maintainability of CP D
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8172 of 2017. In view of the ratio of the judgments cited herein it is hereby determined that CP D 8172 of 2017 is maintainable on account of being in the public interest, therefore, we now proceed to address the merits of the matter before us. 10. At this juncture it is pertinent to record that there was no cavil to the fact that the tender process culminating in the Contract qualified as public procurement, under the laws for the time being in force, and it was never the respondents' case that the relevant public procurement laws were not applicable herein. On the contrary it was argued on behalf of the respondents that the tender process and the consequential award of the Contract were in due consonance with the public procurement laws. In this backdrop the detailing of the relevant provisions of the public procurement laws, delineating the tendering process and the consequential award of the Contract to be within the ambit therein, is eschewed for the sake of brevity . 11. Adverting to the facts under consideration, it was observed that a request for expression of interest was disseminated in the national media by the FBR for the Safe Transportation and Environment Project. The said advertisement, published in the national dailies, stipulated that the Safe Transpiration Project was launched in 2013 covering Afghan forward transit cargo and the FBR now intended to enhance the project to cover the entire spectrum of bonded cargo transportation, including but not limited to Afghan forward and retro cargo, inter port movement, transshipment to and from dry ports and transit cargo, from Customs point of entry to Customs point of exit, maintaining en-route integrity of cargo on real-time basis ("Project"). The advertisement instructed interested persons to obtain information regarding the terms of reference as notified by the Rules 2012 and required that the requisite expression of interest containing the technical and financial proposals for delivery of the aforementioned services be submitted no later than 15.042015. It was then noted that in pursuance of the aforesaid advertisement, bids were submitted by the interested parties within the timeframe and that no bid was received from NCSPL in such regard within the timeframe stipulated for submission of the same. It was demonstrated from the bid documents that the determination for the bid price was to be undertaken in pursuance of the criteria prescribed in clause 15 thereof, contents whereof is reproduced herein below: "15.1 The Bidder shall indicate on the appropriate for prescribed in this Standard Bidding Document the fee and charges per tracking operation and total cost of Investment of the Project for three years, under the contract. 15.2 Form prescribed for quoting of prices is to be filled in very carefully , preferably typed. Any alteration/correction must be initiated. Every page is to be signed and stamped at the bottom, Serial number of the quoted item may be marked with red/yellow marker . 15.3. The Bidder should quote the prices of goods and services according to the technical specifications as provided in Part-T wo section III of this document. The technical specifications of goods and services, different from the required specifications, shall straightway be rejected. 15.4. The Bidder is required to offer a competitive price which must include all the taxes, duties, prescribed price and any other price as mentioned in the Bid Data Sheet (BDB) where applicable, if there is no mention of taxes, the offered/quoted price shall be considered as inclusive of all prevailing taxes/duties, etc. 15.5. The benefit of exemption from or reduction in the taxes and duties shall be passed on to the Importer or exporter . 15.6. Prices offered should be for the unique tracking and monitoring service and/or a tracking device along with the cost of Investment for three years demanded in the Schedule of Requirement; partial service provision offers shall straightaway be rejected. Conditional or alternate offer shall also be considered as non-responsive Bid."(Underline added for emphasis.) 12. A letter of Invitation, dated 29.10.2015, was issued by FBR clearly stipulating that only two entities stood shortlisted, NCSPL not being constituent thereof. It may be pertinent to reproduce the contents of the relevant content herein below: "The Federal Board of Revenue, Islamab ad, government of Pakistan hereby intends to recourse, under National Competitive Bidding (NCB), providing technical solution and licensing services for tracking and monitoring of cargo/container security under the Tracking and Monitoring of Cargo Rules-2012 under Single Stage Two Envelop bidding through Merit Point Evaluation methodology under Federal PPRA Rules 2004.
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2. This assignment aims to license service providers for performing the functions of tracking and monitoring of cargo under the Tracking and Monitoring of Cargo Rules 2012. Details on the software, hardware and related services to be acquired are provided in the Standard Bidding Documents (attached). 3. The Licensing committee has therefore identified probable solution integrators/solution providers by shortlisting the Expressions of Interest (EOIs) received from firms that have stated in their EOIs related track record with large scale solution implementations for the monitoring of cargo. You are among the said shortlisted firms. 4. This Request for Proposal (RFP) has therefore been communicated to the following shortlisted solution integrators/solution providers/T echnology Consultants: 1) M/s. United Track System (Pvt.) Ltd. 2) M/s Falcon-i (Pvt.) Ltd. (Underline added for emphasis.) 5. It is not permissible to transfer this Invitation to any other firm. 6. A firm will be selected under Single Stage Two Envelop bidding through Merit Point Evaluation Methodology under rule 36(b) of the PPRA Rules 204 and under Monitoring and Tracking rules 2012 wherever applicable, to ensure selection of Solution Providers/Solution Integrators/T echnol ogy consultants for providing a high quality container tracking and monitoring solution and servic es at the most economical cost...." 13. Notwithstanding the belated parachuting in of NCSPL in the tender process, it is seen from the record that the public opening of financial bid was held on 12.12.2015 in front of the bidders' representatives and the members of the Financial Evaluation Proposal Committee, the highest bidder was determined to be FiPL and that the lowest bid was submitted by NCSPL. However, the criteria for evaluation of the bids was subsequently altered and by way of a novel accounting methodology, alien to the bidding documents, employed to completely change the priority and ranking of bids received. This is demonstrated from the relevant documents, uncontroverted by the respondents, available on file and the relevant content whereof is reproduced herein below: "The public opening of financial bids was held on 12.12.2015. Financial proposals were then opened on the same date in front of the bidders' representatives and the members of Financial Proposal evaluation committee. The total prices of the technical qualified firms were read out publicly and recorded as follows: Read out price Charges per tracking operation (Rs.) Cost of Investment Company Name Transit TP ST M/s Falcon.I 5899 5899 5899 Rs.1288.68 million M/s NLC 6274 5945 6393 Rs.665 million M/s United Track 7500 6500 6500 Rs.996.78 million
M/s NLC vide letter dated 16.11.2015 raised the objection that for proper financial evaluation, only the cost of capital investment may be taken into consideration and recurring/operating expenses are not to be considered for financial evaluation. The matter was referred to Procurement Specialist Mr. Mohammad Ali Raza. He was of the view that recurring cost is only provided by the bidder when it is specifically required in the Instructions To bidders (ITB) and in General Conditions of contract (GCC) and Special Conditions of Contract (SCC) sections of the Standard Bidding Document in I, ICT or other technology contracts. Recurrent cost commences at the expiry of the Warranty period of the hardware and services and usually extends from 4-5 years - the breakup of which is then required by the Client through a Standard Proforma for Recurrent Cost. He point out that the said Recurring Cost component was neither mentioned nor required by the Client in the RFP document and may be excluded from the cost of Investment. As per his advice he applicants were asked to furnish the bifurcation of the cost investment quoted in the financial bid/proposal I terms of the capital investment (investment in establishment of Central & regional control Rooms, storage and testing facilities for tracking devices, liaison offices at entry/exit points, mobile enforcement units, tracking devices, palm held devices) and recurring/operation expenses for proper financial evaluation. The information furnished by the applicants was thoroughly deliberated upon by the:
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S. No. Company Cot of Investment as per Financial Evaluation (Rs.in million) 1. NLC Constructions Solutions664.51 2 M.S. Falcon-I (Pvt.) Ltd.386.78 3 United Track System (Pvt.) Ltd.5592.82 In the light of financial evaluation, marking criteria and related formula, laid down in the Standards Bidding Document, the Financial Proposal Evaluation committee awarded the following score to the applicants (Financial Evaluation Report enclosed, Annex-B)" FINANCIAL SCORE Sr. No.Firm Charges per tracking Cost of investment operation Total MarksMarks obtaine dTotal marksMarks obtainedMarks obtained (total) 1. M.S. Falcon-I 5 5 15 8.73 13.73 2 M/s NLC 5 4.75 15 15 19.75 3 M/s United Track5 4.32 15 13.38 17.70
14. The entire premise for the belated modification in the criteria was the opinion of a person, who was stated to be a specialist in such regard, and it was also stated therein that such an exercise was predicated on the basis of letter dated 16.11.2015 issued by NLC to the FBR. The reservations with regard to the aforesaid and the uncalled for reliance upon a stranger's opinion, predicated upon a letter of an interested party, were denigrated by the petitioners in the following terms: "The view of the "procurement expert", Mr. Muhammad Ali Raza, i.e, that recurring / operational expenses are only provided when specifically required in the bidding documents and that the recurring cost commence at the expiry of the warranty period of the hardware and services extending usually from 3-5 years, was plainly incorrect and has no basis in law or fact for the following reasons: (i) Seeking an opinion from a procurement expert on a criterion that has not been mentioned explicitly or implicitly in the RFP is a clear violation of the Rule 30 of the Rules 2004. The evaluating criteria cannot be changed after bids have been submitted and opened simply on the basis of the opinion of an alleged expert. (ii) As mentioned earlier , the only phrase used in the RFP is "cost of investment for the project for three years". This does not simply refer to the "capital cost of the project" since any provision of services for three years contains a significant recurring/operational cost. Moreover , it is obvious that for the project feasibility and appropriate pricing of a project over three years, the bidders would have to take into consideration the recurring operational cost of running the project. If a bifurcation of the financial proposal was required, it should have been communicated to the bidders. Requesting the bidders to provide a bifurcation of the financial proposa l for the submission of the bid clearly indicates that the evaluation criteria of the financial bid was changed by the FBR as an afterthought. (iii) The tender was for the provision of a service in which there are few major capital costs. The capital costs include investing in tracking devices (which will then be purchased by users) and establishing a monitoring centre
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(with computer terminals etc.). To evaluate such a project on the basis of capital costs only, makes no financial sense. (iv) The procurement…
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