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Official Citation: 2026 LHC 2982
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Raheel Kamran)
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Raheel Kamran), officially reported as 2026 LHC 2982. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Raheel Kamran) DECISION DATE: 07-05-2026 CASE DETAILS: Regulatory Authorities 68332/23 ============================================================ Stereo HCJDA 38 JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE (JUDICIAL DEPARTMENT)
Writ Petition No.68332 of 2023
Faisalabad Electric Supply Company Limited
Versus
Public Procurement Regulatory Authority through its Managing Director and others
Petitioner by:- Mr. Hassan Pervaiz, Advocate.
Respondents by: Mr. Nauman Khalid, Assistant Attorney General for the Federation of Pakistan. Mr. Asad Manzoor Butt, Advocate for respondent No.3. Mr. Asim Malik, Advocate for respondent No.4.
Date of hearing: - 07.05.2026
JUDGMENT
RAHEEL KAMRAN , J .: Through this petition filed in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”), the petitioner has called in question the decision rendered by the Appellate Committee of the Public Procurement Regulatory Authority pursuant to hearing dated 09.03.2023, whereby the appeal preferred by respondent No.3 M/s Associated Tech nologies (Pvt.) Limited, against order dated 01.09.2022 passed by the Grievance Redressal Committee of Faisalabad Electric Supply Company, was accepted and the said order dated 01.09.2022 was set aside. 2. The factual background as gathered from the conte nts of the petition and the record is that the petitioner, Faisalabad Electric Supply -2- W.P. No.68332 of 2023 Company Limited (hereinafter referred to as “FESCO” ), invited bids for procurement of different items under the Public Procurement Rules, 2004 (hereinafter referred to as “the Rules of 2004”). Respondents No.3 and 4 submitted their respective bids. Upon evaluation, respondent No.3 was declared non -responsive. Feeling aggrieved, respondent No.3 approached the Grievance Redressal Committee (hereinafter referred to as “the GRC”) but remained unsuccessful. Thereafter, respondent No.3 filed an appeal before the Appellate Committee of the Public Procurement Regulatory Authority, i.e. respondent No.2, which was accepted. Hence, the instant petition. 3. Learned counsel for the p etitioner contends that the bids were evaluated strictly in accordance with the prescribed criteria, applicable law and rules. He submits that respondent No.3 was rightly declared non-responsive on the basis of adverse performance feedback received from Hy derabad Electric Supply Company (“HESCO”), where respondent No.3 had earlier participated in a tender process and, according to HESCO, had conducted itself in an unprofessional manner causing financial loss. He further submits that respondent No.3 had also concealed the pendency of a civil suit instituted by it against HESCO, which was pending at the time of submission/opening of bids before the petitioner-company, and such concealment was sufficient to disqualify it. Learned counsel further argues that the Appellate Committee erred in observing that no litigation was pending at the relevant time, despite noticing that the suit was withdrawn on 22.11.2022, whereas the tenders had been opened on 16.06.2022. He also submits that the impugned decision was rendered belatedly after the hearing held on 09.03.2023 and in the absence of any injunctive order, the contract awarded to respondent No.4 had already been completed through supply of goods and payment thereof, hence, the transaction had become past and closed. 4. Learned counsel for respondent No.3 has supported the impugned decision passed by the Appellate Committee and contends that the petitioner-company acted beyond the scope of the prescribed bidding -3- W.P. No.68332 of 2023 documents and the evaluation criteria while declaring r espondent No.3 commercially non -responsive. He submits that respondent No.3 had furnished complete details of its past projects along with the requisite documents and there was no deficiency in the material submitted with the bid. Learned counsel further s ubmits that the procurement process undertaken by HESCO had already been scrapped and, therefore, no adverse inference could legally be drawn therefrom. He maintains that neither the bidding documents nor the evaluation criteria prescribed pendency or non -disclosure of litigation as a disqualifying factor and, therefore, the petitioner cannot supplement the reasons recorded in the evaluation report by subsequently raising the plea of concealment of litigation. 5. Learned counsel for respondent No.4 has, by and large, adopted the arguments advanced by learned counsel for the petitioner. 6. Arguments heard. Record perused. 7. The controversy in hand essentially turns upon the legality of the decision -making process adopted by the procuring agency while declaring respondent No.3 commercially non -responsive and the correctness of the order passed by the Appellate Committee in interfering with such decision. Since the matter relates to public procurement, the starting point of examination must necessarily be the statutory framework governing evaluation of bids. Rule 29 of the Rules of 2004 mandates that procuring agencies shall formulate an appropriate evaluation criterion listing all relevant information against which a bid is to be evaluated and such evaluation criterion shall form an integral part of the bidding documents. Rule 30 further obligates the procuring agency to evaluate all bids strictly in accordance with the evaluation criteria and other terms and conditions set forth in the prescribed bidding documents. It also expressly provides that, save as provided in sub - clause (iv) of clause (c) of Rule 36, no evaluation criterion shall be used for evaluation of bids if the same had not been specified in the bidding -4- W.P. No.68332 of 2023 documents. For facility of reference, Rules 29 and 30 of the Rules of 2004 are reproduced below: “29. Evaluation criteria.- Procuring agencies shall formulate an appropriate evaluation criterion listing all the relevant information against which a bid is to be evaluated. Such evaluation criteria sh all form an integral part of the bidding documents. Failure to provide for an unambiguous evaluation criteria in the bidding documents shall amount to mis - procurement. 30. Evaluation of bids .-(1) All bids shall be evaluated in accordance with the evaluatio n criteria and other terms and conditions set forth in the prescribed bidding documents. Save as provided for in sub-clause (iv) of clause (c) of rule 36 no evaluation criteria shall be used for evaluation of bids that had not been specified in the bidding documents. (2) For the purposes of comparison of bids quoted in different currencies, the price shall be converted into a single currency specified in the bidding documents. The rate of exchange shall be the selling rate, prevailing on the date of opening of bids specified in the bidding documents, as notified by the State Bank of Pakistan on that day. (3) A bid once opened in accordance with the prescribed procedure shall be subject to only those rules, regulations and policies that are in force at the t ime of issue of notice for invitation of bids.
8. A combined reading of the above provisions leaves no manner of doubt that the evaluation of bids in public procurement is not an open- ended or discretionary exercise. Rather, it is structured, rule -bound and confined to the evaluation criteria pre -disclosed in the bidding documents. The procuring agency is bound by the criteria framed by itself and communicated to all intending bidders. It cannot, at the stage of evaluation, introduce a new benchmark, cond ition, disqualification or consideration which was not made part of the bidding documents. Such an approach, if permitted, would strike at the very foundation of transparency, fairness, equal treatment and predictability in public procurement. 9. Reverting to the facts of the present case, a perusal of the evaluation report shows that respondent No.3 had quoted rates comparatively lower than those offered by respondent No.4 for all the -5- W.P. No.68332 of 2023 items under procurement. Despite this, respondent No.3 was declared “Commercially Non -Responsive”, whereas respondent No.4 was declared “Technically and Commercially Responsive”. The Evaluation Committee recorded the following reasons for declaring respondent No.3 commercially non-responsive: “Complaint received from Chief E ngineer (Development) PMU FESCO Officer vide No.10162 -64 dated 29.06.2022 regarding Bad/unsatisfactory performance of M/S Associate Technologies Ltd, in HESCO (Copy Attached). This office wrote a letter to Chief Engineer (Dev ) PMU HESCO vide No.818 -19 dated 04.07.2022 for performance feedback against HESCO tender No.HESCO/PMU10/020 -21 dated 18.02.2021 for the procurement of 132KV ZM 1 Type Tower (Copy Attached). Performance feedback from Chief Engineer (Dev) PMU HESCO receive d vide letter No.CE(DEV)PMU/HESCO/M(P)/335 dated 29.07.2022 in which performance of M/s Associate Technologies Ltd declared bad/unsatisfactory (Copy Attached). The bidder does not fulfill Clause 5 Sub -Clause 5.2 of Section-III Evaluation and Qualification Criteria.”
10. The reasons so recorded show that the principal basis for declaring respondent No.3 commercially non-responsive was the adverse performance feedback received from HESCO, coupled with the alleged non-fulfilment of Clause 5.2 of Section -III of the Evaluation and Qualification Criteria. It is, therefore, necessary to examine whether the said clause authorized the procuring agency to obtain and rely upon such feedback in the manner adopted in the present case. Clause 5.2 of Section-III reads as under: “5.2 In this context satisfactory operational certificates from the clients/utilities indicating their names, addresses, fax numbers and Web Site E -mail addresses must be submitted with the bid. For verification of the past performance as a part of qualifi cation, the purchaser may ask for the copies of the contract agreement for the equipment indicated in the supply record of the bidder pertaining to the specified and comparable equipment during the bid evaluation. Non - submission of said documents may rende r the bid non - responsive. In this context the manufacturer is required to fill -6- W.P. No.68332 of 2023 in the relevant forms given in Section -IV of this tender document and submit the same with the bid.”
11. A plain reading of the aforesaid clause makes it evident that the verification of past performance contemplated therein was referable to the supply record furnished by the bidder itself. The clause required the bidder to submit satisfactory operational certificates from clients/utilities along with relevant particulars. It f urther empowered the purchaser, for purposes of verification of past performance as part of qualification, to ask for copies of contract agreements for the equipment indicated in the supply record of the bidder, pertaining to specified and comparable equipment. Thus, the scope of verification under Clause 5.2 was not indefinite. It was tethered to the supply record and projects disclosed by the bidder in its bid. The record reflects that respondent No.3 had furnished details of as many as 34 completed projects. There is nothing on record to show that respondent No.3 failed to submit the requisite operational certificates or supporting documents in respect of the projects so disclosed or that any defect in such disclosed credentials was pointed out in accorda nce with the evaluation criteria. Instead of confining itself to verification of the projects disclosed by respondent No.3, the procuring agency sought adverse feedback from HESCO in relation to a separate procurement process, which, according to the observations of the Appellate Committee, had not culminated into execution of a contract and had rather been scrapped. Such an inquiry, being outside the supply record furnished by the bidder and outside the express scope of Clause 5.2, could not have been used as an independent ground to non -suit respondent No.3. This Court is, therefore, persuaded to hold that the procuring agency travelled beyond the four corners of the prescribed evaluation mechanism. The adverse feedback obtained from HESCO, in the facts an d circumstances of the case, was not shown to be a standalone disqualifying criterion expressly incorporated in the bidding documents. Reliance upon such material, dehors the pre - disclosed evaluation criteria, offended the mandate of Rules 29 and 30 of -7- W.P. No.68332 of 2023 the Rules of 2004 . The Appellate Committee, while setting aside the order passed by the GRC, correctly appreciated this aspect of the matter. 12. Public procurement is founded upon the principles of transparency, fair competition, equal treatment of bidders a nd safeguarding of public funds. These principles are not ornamental. They are embedded in the procurement regime to ensure that public contracts are awarded through a process which is fair, predictable, objective and resistant to arbitrariness. Once the p rocuring agency has framed and notified the evaluation criteria, it must apply the same uniformly to all bidders. It cannot enlarge, modify or supplement the criteria during evaluation in a manner which adversely affects a bidder. Any deviation from the pr e-announced criteria undermines the sanctity of the bidding process and creates room for subjective exclusion. 13. The argument raised on behalf of the petitioner regarding concealment of pending litigation also requires consideration. It is contended that respondent No.3 had instituted a civil suit against HESCO, which was pending on the date of submission/opening of bids and that respondent No.3 concealed this fact. The record does indicate that the civil suit filed by respondent No.3 against HESCO wa s withdrawn on 22.11.2022, whereas the tenders in the present procurement were opened on 16.06.2022. To this extent, the observation of the Appellate Committee that no litigation was pending at the relevant time does not appear to be in accord with the record. However, the above error does not, by itself, vitiate the ultimate conclusion drawn by the Appellate Committee. The reason is twofold. Firstly, neither the evaluation report nor the contemporaneous record shows that respondent No.3 was declared non -responsive on the ground of concealment of pending litigation. The reasons recorded by the Evaluation Committee were confined to adverse performance feedback from HESCO and alleged non -fulfillment of Clause 5.2. Secondly, it has not been demonstrated before this Court that pendency or non -disclosure of such litigation was , under the bidding documents , an expressly prescribed -8- W.P. No.68332 of 2023 disqualifying factor. In the absence of such a stipulation, the said ground could not be subsequently pressed into service to sustain an order which was not originally founded upon it. It is a settled principle that the validity of an administrative or quasi -administrative action is to be judged on the basis of the reasons contemporaneously recorded in support thereof. Such reasons cannot ordinarily be improved, substituted or supplemented through subsequent explanations advanced before appellate or constitutional forums. If the Evaluation Committee did not declare respondent No.3 non -responsive on account of alleged concealment of litigati on, the petitioner cannot now be permitted to justify the impugned evaluation by relying upon a ground which did not constitute the foundation of the original decision. 14. Another circumstance which cannot be lost sight of is that respondent No.3 had quo ted rates lower than respondent No.4. In procurement matters, competitive pricing is of substantial importance, for the procuring agency is under a duty to ensure prudent and optimum utilization of public funds. This does not mean that the lowest bidder must invariably be accepted regardless of eligibility or compliance. However, where the lowest bidder is excluded, the exclusion must rest upon grounds firmly anchored in the bidding documents and the applicable rules. If such exclusion is based upon a consi deration extraneous to the pre -disclosed criteria, the matter calls for strict scrutiny. In the case in hand, the exclusion of respondent No.3 was not founded upon any clear breach of the criteria disclosed in the bidding documents, but upon material indep endently gathered from HESCO in relation to a process not forming part of the disclosed supply record. This lends support to the view taken by the Appellate Committee. 15. The learned counsel for the petitioner has also argued that the procurement process has attained finality because respondent No.4 has already supplied the goods and received payment, and the transaction has become past and closed. This contention is not persuasive. In the first place, no satisfactory documentary material has been placed o n -9- W.P. No.68332 of 2023 record to substantiate the alleged completion of the contract, delivery of goods or release of payment in the manner asserted. In the second place, once the matter was sub judice before the Appellate Committee, prudence and fairness demanded that the pro curing agency should have awaited the outcome of the statutory proceedings or at least proceeded subject to the result thereof. A party cannot be allowed to defeat the adjudicatory process by creating a fait accompli during the pendency of proceedings. The principle underlying lis pendens also discourages alteration of the position of the subject matter in a manner which may prejudice or frustrate adjudication. 16. It may also be observed that this Court while exercising jurisdiction under Article 199 of th e Constitution does not sit as a court of appeal over decisions rendered by statutory, departmental or specialized forums. This Court examines the decision -making process and interferes only where the impugned order is shown to suffer from jurisdictional defect, patent illegality, mala fide, arbitrariness, perversity, misreading/non-reading of material evidence or results in grave injustice. In matters of public procurement, particularly those involving technical and commercial evaluation, the Court ordinar ily exercises restraint and does not substitute its own opinion for that of the competent authority merely because another view may also be possible. Tested on the above touchstone, the impugned order passed by the Appellate Committee does not suffer from any jurisdictional defect, illegality or perversity warranting interference by this Court. The Appellate Committee correctly found that the procuring agency had relied upon material and considerations beyond the prescribed evaluation criteria. The error in the observation regarding pendency of litigation, though noticeable, does not go to the root of the matter because concealment of litigation was neither made a part of the original evaluation decision nor shown to be an express disqualifying condition und er the bidding documents. The ultimate conclusion of the Appellate Committee, therefore, remains legally sustainable. -10- W.P. No.68332 of 2023 17. For the foregoing reasons, this petition being devoid of merit is dismissed. No order as to costs.
(RAHEEL KAMRAN) JUDGE Approved for reporting.
JUDGE
Azhar*