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Petitioner: Badar Expo Solutions through Managing Director VS Respondent: Federation of Pakistan through Chief Executive Trade and Development Authority of Pakistan and 12 others
Court Name: Sindh High Court Judge(s): Yousuf Ali Sayeed, Ahmed Ali M. Shaikh (C.J) Title:Badar Expo Solutions through Managing Director vs Federation of Pakistan
through Chief Executive Trade and Development Authority of Pakistan and 12 others Case No.: Constitution Petition No. D-3216 of 2021 Date of Judgment:2021-10-14 Reported As: PLD 2022 Sindh 336 Result: Petition dismissed Judgment ORDER YOUSUF ALI SAYEED, J.---The petitioner has invoked the writ jurisdiction of this Court under Article 199 of the Constitution impugning the procurement process undertaken by the Trade Development Authority of Pakistan (the "TDAP") in terms of Tender No. TDAP-AD-02 (23-19)/Asia-2014, bearing the caption "Services of Event Management Company for Programming/Side Events for Pakistan's Participation in Expo-2020" (the "RFP"), whereby bids were invited in respect of certain event management services to be rendered during the course of that event. 2. For information of the uninitiated, the World Expos, officially known as International Registered Exhibitions, are a global gathering of nations, taking place periodically under the auspices of the Bureau International des Expositions, which was created as an intergovernmental organisation at an international convention held in Paris in 1928 for overseeing and regulating all international exhibitions of a long running and non-commercial nature and presently comprises of 170 Member States, including Pakistan. Since the first Expo - the Great Exhibition held in London in 1851, the event has become one of the biggest on the global stage, with over 192 countries and international organisations said to be participating at the forthcoming Expo scheduled to be held in the Emirate of Dubai between 01.10.2021 and 31.03.2022 (the "Expo"), with each country having its own pavilion to exhibit and showcase its ability and potential. 3. Reverting to the dispute at hand, the backdrop to the matter is that the TDAP, being the designated national authority responsible for Pakistan's pavilion at the Expo (the "Pakistan Pavilion"), had issued the RFP through the Trade and Investment Counsellor at the Consulate
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General of Pakistan in the United Arab Emirates (the "UAE"), inviting bids for certain event management services to be procured for the Pakistan Pavilion. 4. To appreciate the nature and substance of the procurement, it merits consideration that the "Scope of Work", as delineated in Section H of the RFP, reads as follows: "SCOPE OF WORK To leverage this opportunity and to promote Pakistan amongst the expected 25 million visitors, businesses and trade in UAE, the Trade Development Authority of Pakistan intends to organize several trade and investment related forums/seminars/workshops and cultural events/festivals in the Conference room (multipurpose room with seating capacity of 50 persons and equipped with Audio Visual systems) inside the Pavilion, other venues at the Expo-2020 and venues in the City during the 6 months of the Expo. Pakistan also intends to fully participate in the common events organized by the Expo Authorities during several theme weeks. The overall plan of the programming/side activities will be finalized keeping in view the overall Expo-2020 Programming Theme Weeks and related activities and inputs from stakeholders i.e. relevant Federal Ministries, Provincial Governments and other private sector stakeholders specially the Sponsors/donors. In this regard, services of a well reputed Event Management Company (EMC) in UAE with an affiliate/partner Event Management Company in Pakistan are required to provide end to end solution for planning and organization of programming/side events during the Expo. [Underlining added for emphasis] The Scope of Services also includes, but is not limited to: Assign an experienced team. both in Dubai and Pakistan for planning and executing the final calendar of events. Deploy a team of ushers/pavilion ambassadors of Pakistani Origin, who are multilingual and can speak English, Arabic, German, French and Spanish languages. The EMC shall provide uniforms to ushers specific to Pakistani culture, as per design approved by the Creative Review Committee and Principal Curator of the Pavilion and also train them on the inner journey of the Pavilion and various aspects about Pakistan and programming events as per the brief provided/approved by the Principal Curator. The ushers are expected to be Ambassadors of Pakistan in the Pavilion therefore high standards for conduct and finesse are expected. The entire team of ushers recommended by the EMC will be screened and approved by the Creative Review Committee/Principal Curator and TDAP. The shift management and logistics of the Ushers will be the responsibility of EMC. Planning, managing and executing each of the approved events with end to end solution and coordinate these activities with the various Expo Agencies, other Government Offices and Private entities both in Pakistan and UAE. Making all necessary logistical arrangements (venue, technical equipment where required, transportation, travel and accommodation for resources persons/performing artists catering etc. where not already available) plus manpower and all other necessary arrangements for each of the approved events. Coordinate all marketing and promotional requirements for the aforesaid events with the appointed Branding/Marketing Communications Agency." 5. Additionally, the Scope of Services also provided for rendition of certain other works, described under the following heads:-- Venue Set-ups for Conferences, seminars and cultural events. Event Programme. Hotel Arrangement. Transportation Service. Catering services Hospitality and VIP Services.
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Manpower Requirements. Marketing and Media Communications. Invitation and Registration Management. Photography/Video Production and Documentation Services. 6. As is discernible from the Scope of Work, bids were elicited as per the RFP specifically from Event Management Companies in the UAE, subject to the requirement that they maintain an affiliate/ partnership with a like concern in Pakistan. As such, the very first criterion laid down for eligibility to bid was that the "bidder must possess valid registration/trade licenses with concerned authorities in UAE", with the further criteria including the requirement that "The bidder and their affiliate in Pakistan should have relevant experience of providing Event Management Services in UAE and Pakistan respectively. Reference/details to be provided in the technical proposal. " [Underlining added for emphasis] 7. Furthermore, as to the bidding process, Section III of the RFP provided that Bidding would be held by way of a Single Stage - Two Envelope Procedure, as per Rule 36 (b) of the Public Procurement Rules, 2004 (the "PPRA Rules"), with bids to be submitted by 04.03.2021 to the Consulate General of Pakistan in Dubai. Furthermore, a technical proposal would be considered substantially responsive if it scored at least 70% in the technical evaluation against the evaluation criteria given in Section IV (Technical Evaluation Criteria) of the RFP, and subject to meeting that threshold, the financial proposals of the substantially responsive bidders would then be opened and the procurement contract would be awarded to the most advantageous bid, with the relevant terms of the RFP stating as follows:-- The contract shall be awarded to the Most Advantageous Bid in terms of highest rank in "Quality and Cost based Selection" - 60% weightage of technical proposal and 40% weightage of financial proposal in terms of Public Procurement Rules 2004 as amended in 2020 of Pakistan. As explained in S. No. - IX above, an eligible bidder shall be required to score 70% in Technical proposal to become substantially Responsive and for opening of Financial proposal. A combined evaluation of the Technical and Proposal will be done to ascertain the highest ranked bid as per following formula: Weightage of Technical Proposal Score: 60% Weightage of Financial Proposal Score: 40% The substantially responsive bid which has the lowest financial quote will get full marks for the Financial Proposal and the next higher will accordingly get lower score for the same and so on. Formula for calculating Financial Proposal Score: (Lowest bid amount divided by bid amount of bidder) x 30 = Score of Financial Proposal (lowest will get full 30 score). Highest Ranked bid = (Technical evaluation score) X0.7 + Financial Proposal score. 8. As it transpires, 11 UAE based bidders responded to the RFP and tendered their bids/proposals. As per the evaluation report published by TDAP under Rule 35 of the PPRA Rules (the "Evaluation Report"), from amongst them, only two bidders scored over 70% in the evaluation of their technical proposals, being DWTC and Entourage Marketing and Events LLC ("Entourage"), scoring 87.80% and 72.40% respectively, with the Respondent No. 13 (JS Events) being; the Pakistani affiliate of the former and the Respondent No. 12 (Pegasus Consultants) serving in that capacity in relation to the latter. 9. As such, those two bidders (DWTC and Entourage) were solely considered as being substantially responsive under the terms of bidding prescribed in the RFP, hence only their financial bids were opened and evaluated. Since the financial bid submitted by Entourage was lower than that of DWTC, it scored higher in the overall points evaluation and accordingly qualified as the most advantageous bid under the terms of the RFP, with the procurement contract for services to be
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provided for the Pakistan Pavilion then being awarded to it accordingly on 01.06.2021, with the respondent No.'12 as its Pakistan affiliate. 10. It is pertinent to observe that the petitioner was itself not a 'bidder', but was merely the "affiliate in Pakistan" of BSL Middle East F.Z. 'L.L.C ("BSL"), apparently a limited liability company registered under a Commercial License in the Emirate of Abu Dhabi, whose Technical Score had aggregated to 57.70%, thus falling short of the prescribed 70% threshold. 11. For its part, BSL had addressed a letter dated 28.03.2021 to the Director General/ Chairman of the Grievance Redressal Committee (the "GRC") of TDAP on the subject of the rejection of its proposal/ tender, whereby it was alleged that the reasons for rejection had not ,been communicated and, whilst highlighting certain past accomplishments in organizing various events, it was sought that the matter be placed before the GRC for reconsideration. In that letter, it was stated inter alia that: "We were informed through an email received on 15 March 2021 from Mr. Waqas Ali Tunio, Project Manager Pakistan Expo 2020, Dubai, merely, stating that "your technical proposal could not qualify for further process". Following the email, in spite of our requests, the reason for rejecting our proposal has not been communicated to us. In this regard we would like to submit our contention and serious concern on the following grounds that according to the instructions in the first paragraph, page 3 of the RFP that, UAE based companies having, affiliates/ partnership with event management companies/firms in Pakistan for a framework agreement to provide end to end solutions for planning and organization of programming/ side events in Pakistan Pavilion, at the Expo 2020. We have the partnership with Messrs Badar Expo Solutions, a well reputed and experienced event management company/firm in Pakistan having extensive experience and a reputation as the best event organizers in Pakistan. As far as rejecting our proposal on technical grounds is concerned, we kindly would like to understand why as we as joint partners have arranged and organized a wealth of events of repute in Dubai, the UAE, Pakistan, Europe and worldwide. The list is long but here I would like to focus on the Pakistan related events as feel these are the most relevant to the bid: If you kindly go through the achievements of our company as listed above and view the strength of our technical and well qualified-staff based both in the UAE and Pakistan, it will appear that our Company is far ahead of other companies and firms, who have participated in this tender. It has also been proved in a powerful presentation. The rejection of our Company on technical grounds, without mentioning valid reasons is the matter of surprise and doubt for our Company. Therefore, we reserve our right to highlight this doubtful action on the part of Tender Committee/Tendering Authority, before the higher authorities in Pakistan and on various forums as apparently the rejection of our Company seems to be an unjust action, with mala fide intension without a forthcoming explanation. It is therefore requested that our case be placed before the grievance committee for reconsideration of our proposal/tender." 12. Thereafter, a zoom meeting (i.e. a video conference using the Zoom cloud-based platform) was conducted by the GRC on 09.04.2021, in which BSL participated, and vide a letter dated 11.04.2021 addressed to the Chief Executive, TDAP, then raised certain observations regarding the composition of the GRC and the proceedings that had ensued, alleging that the constituent members of the GRC had been changed without notice and that the GRC participants were not cooperative during the interaction. The relevant excerpt reads as follows:-- "On our complaint, we were informed through email dated Thursday 8 April 2021 which was received in our office at 15:34 UAE time, copy enclosed, that we were advised to appear in a zoom meeting of Grievance Committee to be held on Friday 9 April 2021 at 10:30 UAE time, hence leaving no room for us to prepare our case strongly especially, as Friday in the UAE is the weekend. However, we did participate to avail the opportunity, so that, we should not be defaulters.
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The Grievance Committee which was notified and uploaded on the website of PPRA consists the following officers as Chairmen and its Members: Mr. Abdul Karim Memon Chairman, Mr. Akbar Zaman (Member) Mr. Shafqatullah (Member). To our utter surprise, the Grievance Committee was suddenly changed without notifying it and uploading the same on the website of PPRA under the rule 48 PPRA. The meeting started and the Grievance Committee appeared to be unprepared without the detailed evaluation report ready to discuss and when it was discussed the evaluation scores where BSL Middle East and Badar Expo Solutions scored low marks could not be explained. It was also noticed that when questions were asked about the current highest rank bidder the Grievance Committee did not wish to entertain them. The Grievance Committee were in an obvious hurry to conclude the meeting, which had already started late. As a result, we have no other way, except to approach your good self and submit our observation before your kind honor to take cognizance of what appears to be the mis-procurement in the process of tendering, so that an unwanted, biased and one-sided decision may not be made, which may create a poor reputation for your esteemed organisation and the wrongful use of the Public Exchequer. Finding/Observation The Grievance Committee has been abruptly changed after our complaint without notifying the same on PPRA as per Rule 48 PPRA. 2) As per PPRA rule the Committee must be in odd number, whereas the new committee formed, consist of 4 members including Chairman, they are namely: Mr. Riaz Ahmed Sheikh (Chairman), Mr. Abdul Karim Memon (Member), Mr. A. Basit Rauf (Member) and Mr. Atif Aziz (Member). The formation of Committee is in total contradiction of PPRA rules and is against the Rule 48 of PPRA. The abrupt change in the Committee reconfirms our opinion that entire process of tendering is unjustified, biased and with malafide intention and falls under the category of mis-procurement as per Para 29 of PPRA Rules. According to the Rules of PPRA, the evaluation report must be signed by all members of the tendering committee. In the instant case the report has been signed only by the Chairman of the Tender Committee, that too without date. The entire evaluation proforma does not indicate any date, so that it may be ascertained, when the report was prepared and signed, which creates doubt in the entire procedure." 13. That letter was responded to vide letter dated 13.04.2021 bearing Reference No. "TDAP-AD- 02(23)/Grievance Committee, dispelling the notion of the GRC had not been properly formed and affirming that its constitution was as per the PPRA Rules. A copy of the Notification dated 29.03.2021 constituting the 3 member GRC (the "GRC Notification") was also shared, Furthermore, it was stated that the GRC had heard BSL's concerns and given time for submission of the same in writing. 14. BSL then yet again engaged TDAP through its further letter dated 16.04.2021, reiterating its stance as to Rule 48 vis--vis the composition of the GRC and its grievance that the GRC had not properly explained its evaluation or disclosed the technical evaluation of competitors. 15. Thereafter, vide a letter dated 03.05.2021, bearing Reference No. TDAP-AD-02(23)/Grievance Committee (the "GRC Decision") addressed to BSL with reference to its letter dated 28.03.2021, it was communicated to BSL that the objections raised had been found to be unsubstantiated and its request stood regretted. 16. Whilst the entire body of such correspondence evidently consists of letters addressed by BSL to the GRC/TDAP or vice versa, BSL itself never came forward during the course of the petition. Instead, albeit the petitioner apparently not even being privy to the aforementioned correspondence in any capacity, having neither been addressed as a recipient or even cc'd in the chain of circulation, it alone has nonetheless come forward through the instant petition, and even in the face of a
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preliminary objection that the petition was not maintainable in the absence of BSL and other bidders, no effort was made to implead them as a co-petitioner or respondents, and it is only the affiliates in Pakistan of the two responsive bidders (i.e. Entourage and DWTC) that were arrayed as the respondents Nos. 12 and 13. The latter also did not enter appearance at any stage of the proceedings, with the procurement process remaining unchallenged by it or the bidder in the UAE with which it was affiliated, namely DWTC. As such, the relevant parties having a direct nexus and interest in the RFP remained aloof from the proceedings. More crucially, it is unknown whether BSL even remains interested in rendering the services that are the subject of procurement. Indeed, there is nothing on record to demonstrate or suggest that any interest on its part continues to subsist. 17. Be that as it may, in terms of the petition it has been prayed inter alia that the GRC Decision be declared unlawful, void ab-inito and set aside; that the proceedings of the Evaluation Committee to the extent of Technical Evaluation be declared unlawful, non-transparent and against the spirit of law; that the procurement envisaged in respect of the Expo in terms of the RFP be retendered in a transparent manner in accordance with law; that the award of a contract for Expo under the RFP be stayed pending final determination of the petition; and that the National Accountability Bureau be ordered to conduct an inquiry and investigate the matter. 18. However, the only material placed on record by the petitioner for purpose of advancing its case were copies of the aforementioned letters and GRC Decision, along with a copy of the Memorandum of Understanding executed between BSL and the petitioner on 03.02.2021 (the "MOU"), the petitioner's Taxpayer Registration Certificate issued by the Federal Board of Revenue, the Deed of Partnership executed by the petitioner's constituents, the. Evaluation Report, the GRC Notification, and a printout of an email relating to the zoom meeting of the GRC. Furthermore, despite having sought details as to the technical evaluation of competitors, the bid submitted by BSL was not placed on record. Even the RFP was not filed, and was only brought on record later as an annexure to the counter-affidavit of the respondent No. 12. 19. Proceeding with his submissions in this backdrop, learned counsel for the petitioner nonetheless argued that the Evaluation Committee had violated Rules 29 and 48 of the PPRA and the GRC Decision was arbitrary, bereft of reasons, and violative of section 24A of the General Clauses Act, 1897 as well as Article 25, of the constitution. He further contended that the GRC had been constituted unlawfully so as to comprise 4 members, instead of an odd number of constituents, as envisaged under the PPRA Rules, and its formation should have taken place prior to the RFP and the representation made by BSL. 20. Conversely, learned counsel for TDAP submitted that the procurement process under the RFP had taken place in a fair and transparent manner, without any violation of the PPRA Rules. It was argued that the contentions of the petitioner were baseless and misconceived and no cogent ground of challenge had been raised before the GRC or demonstrated through the petition. It was submitted that while the petitioner had alleged a violation of Rule 29, it had not even been pleaded that the evaluation criteria in the RFP was ambiguous or inappropriately formulated. 21. While adopting such arguments, learned counsel for the respondent No. 12 also raised certain preliminary objections as to maintainability, pointing out that the entire proceedings under the RFP had ensued in the UAE, that all the parties categorizable as "bidders" were based in that jurisdiction, and that such parties, be it BSL, Entourage or even DWTC, had not been party to the petition. With reference to the terms of the RFP, it was submitted that the services subject to procurement were those of a "well reputed Event Management Company (EMC) in UAE", which was merely required to be affiliated with an Event Management Company in Pakistan. As such, any grievance in respect of the evaluation of a bid for the Pakistan Pavilion could only properly arise on the part of a bidder, and under the terms of the RFP that could only mean the Event Management Company in the UAE.
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Therefore, in the absence of BSL, a case for mis-procurement could not be sustained, whereas no document had been placed on record whereby the petitioner claimed to have been authorised to institute such proceedings on behalf of BSL, nor had it even been averred that it had any such authority. As such, the petition was incompetent and liable to be dismissed. 22. Having considered the arguments advanced and examined the material on record, it merits consideration that in determining the status of the petitioner from the standpoint of its relationship with BSL, the relevant provisions of the MOU, being the constitutive document in that regard, read as follows: 2. Background. BSL Middle East and Badar Expo Solutions have agreed to partner as event management agencies based in the UAE and Pakistan respectively, to deliver an end to end solution for event planning and organisation of programming/ side events during Expo 2020. As such, this MoU has been drafted to outline a working relationship. 3. Purpose and Scope The purpose of this MoU is to provide a framework for a non-exclusive partnership and to outline the manner in which both Parties shall work together for mutual benefit. 4. Roles and Responsibilities 4.1 Roles and Responsibilities of BSL 2020. BSL shall lead the contract and be indirect contact with the Trade Development Authority of Pakistan to finalize the SOW, plan and deliver the event programing/side events for Pakistan's participation in Expo 2020. BSL will review all final requirements of the SOW and contact BES to provide all Pakistani event solutions which are not readily available in the UAE. 13. Non-exclusive Partnership This MoU is not intended by the Parties to constitute or create a joint venture, exclusive partnership, or formal business organisation of any kind. The Parties shall be independent Mouors working with each other for mutual benefit but shall not create or attempt to create liabilities for the other. 23. Those provisions of the MOU, particularly Clauses 4.1 and 13, make it abundantly clear that, the petitioner at best had a peripheral/ supporting role to BSL, with the latter being the party instrumental in the bid. Whilst the continued interest of BSL remains shrouded in mystery in view of its absence from the proceedings, even if that aspect and the apparent abandonment by BSL of its right of appeal to the PPRA under Rule 48(7) were to be overlooked and it is assumed that the petitioner is competent to independently espouse the cause, it falls to be considered that the grievance raised by BSL, as too the case advanced through the…
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