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Petitioner: Messrs S.I.S. CORPORATION (PVT) LTD. VS Respondent: FEDERATION OF PAKISTAN through JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Messrs S.I.S. CORPORATION (PVT) LTD. vs FEDERATION OF PAKISTAN through
JUDGMENT
Reported As: PLD 2018 Islamabad 150 Result: Petitions dismissed Judgment JUDGMENT MIANGUL HASSAN AURANGZEB J.---Through this judgment, I propose to decide Writ Petition No,4650/2016 and Writ Petition No,295/2017 since they involve common questions of law and fact. 2. The petitioner in Writ Petition No,4650/2016, M/s S.I.S. Corporation (Pvt.) Ltd., is the local representative of Muhlbauer Group, which is based in Germany and specializes in the provision of high security documents and radio-frequency identification. The relief sought by the petitioner in the said petition is set out in Schedule-A hereto. The petitioner in the said petition shall hereinafter be referred to as "petitioner/S.I.S.". 3. The petitioner in Writ Petition No,295/2017, M/s Safran Identity and Security, is a company incorporated under the laws of the French Republic, and has a place of business in Pakistan. The petitioner is said to be a technology supplier to National Database and Registration Authority since 2004. The relief sought by the petitioner in the said petition is set out in Schedule-B hereto. The petitioner in the said petition shall hereinafter be referred to as "petitioner/Safran". 4. The facts essential for the disposal of these petitions are that through a tender notice dated 10.10.2016, the Directorate General, Immigration and Passports, Government of Pakistan (respondent No,2), invited technical and financial proposals for the "Supply of e-Passport Personalization System on Turn-Key basis". The tender documents could be collected from the Logistics Section of respondent No,2. The proposals were required to be submitted on or before 14.11.2016. The technical bids were to be opened on 14.11.2016 at 1200 hours. Respondent No,2 reserved the right to cancel or reject the tenders under Rule 33 of the Public Procurement Rules, 2004 ("PPR, 2004").
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5. The procedure adopted by respondent No,2 for the award of the contract for the Supply of E- Passport Personalization System was a "Two Stage-Two Envelope" procedure envisaged under Rule 36(d) of the PPR, 2004. Under this procedure a bidder's financial bid cannot be opened unless he is technically qualified by the procuring agency. As per clause 7.2 of the tender documents, the technical and financial evaluation was assigned weightage of 70% and 30%, respectively. In other words, upto 700 marks could be allocated to a bidder for its technical bid, and upto 300 marks could be allocated for its financial bid. Three parties namely (i) Muhlbauer ID Services GmbH ("Muhlbauer"), (ii) the petitioner/Safran and, (iii) M/s Gemalto Pakistan (Pvt.) Ltd., (who is respondent No,9 in Writ Petition No,4650/2016, and respondent No,8 in Writ Petition No,295/2017), participated in the bidding process. Messrs Gemalto Pakistan (Pvt.) Ltd., shall hereinafter be referred to as "respondent No,9". 6. The technical bids were opened on 14.11.2016, in the presence of all the bidders, Whereas the financial bids were opened on 13.12.2016. In the evaluation of the bids, respondent No,9 emerged as the most responsive bidder. The bid evaluation report was made public on 09.01.2017. The summary of the bid evaluation report is as follows:- Name of BidderMarks Total marksRule/Regulation/SBD/ Policy/Basis for Rejection/ Acceptance a sper Rule 35 of PP Rules, 2004 Technical (700)Financial (300) M/S Gemalto Pakistan (Pvt.) Ltd.690/700 253.16 943.16* Secured highest total score.(Details at Annex-A) M/S Muhlbauer ID Services545/700 300 845 * Secured second highest total score (Details at Annex-B) M/S Safran Identity and Security541/700 284.50 825.50* Secured lowest total score. (Details at Annex-C 7. Before respondent No,2 could take a formal decision regarding the award of the contract, the petitioner/S.I.S., on 19.12.2016 filed Writ Petition No,4650/2016, whereas the petitioner/Safran, on 26.01.2017 filed Writ Petition No,295/2017 before this Court. AVAILABILITY OF AN ALTERNATIVE REMEDY UNDER RULE 48 OF PPR, 2004:- 8. Learned counsel for respondent No,2 as well as the learned counsel for respondent No,9 raised preliminary objections to the maintainability of the writ petitions. After making reference to Rule 48 of PPR, 2004, they submitted that the petitioners could not have filed the writ petitions before exhausting the alterative remedy of filing a complaint before a Grievance Redressal Committee ("G.R.C.") constituted by respondent No,2 under Rule 48 of PPR, 2004. They submitted that the G.R.C. could have granted relief to the petitioners, including the relief of suspension of the tender bidding process.. In raising the said preliminary objection, learned counsel for respondent No,2 and respondent No,9 placed reliance on the law laid down in the judgments of the Hon'ble High Court of Sindh in the cases of Messrs KSB Pumps Company Ltd. v. Government of Sindh (2011 MLD 1876), Messrs M.K. International, Local Agent of Messrs Interman Trading FZE v. Sui Southern Gas Company (2016 CLC 1), and Maqbool Associates (Pvt.) Ltd. v. Pakistan Power Park Management Company Ltd.
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(2015 MLD 1794), and of this Court in the case of Maqbool Associates v. Federation of Pakistan (2016 MLD 2006). 9. In my opinion where an alternative and equally efficacious remedy is available to a litigant, he should pursue that remedy and may not invoke the special jurisdiction of the High Court for the issuance of a prerogative writ. Where it is open to the aggrieved petitioner to move another Court or a Tribunal for obtaining redress in the manner provided by a statute, the High Court will normally not entertain a petition under Article 199 of the Constitution, and will leave a petitioner to resort to the machinery set up by the statute for the redressal of his grievances. The question whether the alternative remedy is equally efficacious or adequate or not is a question of fact to be decided in each case and the onus lies on the petitioner to show that it is not adequate. 10. The existence of an alternative remedy is not an absolute bar to filing a petition under Article 199 of the Constitution, but it is factor to be taken into consideration by the High Court while entertaining a writ petition. The existence of an alternative remedy is a rule of policy, practice and discretion. The Superior Courts have time and again held that "sub-Constitutional legislation cannot curtail or otherwise cut across the Constitutional mandates". Reference in this regard may be made to the judgment in the case of Airport Support Services v. The Airport Manager, Quaid-e- Azam International Airport (1998 SCMR 2268). Apart from this, where there is an infringement of fundamental rights, where alternative remedy cannot be said to be adequate or equally efficacious, and where the impugned order is coram non judice, wholly without jurisdiction or violative of the principles of natural justice, a writ petition under Article 199 of the Constitution can be entertained. 11. Rule 48 of the PPR, 2004 is reproduced herein below:- "48. Redressal of grievances by the procuring agency. - (1) The procuring agency shall constitute a committee comprising of odd number of persons, with proper powers and authorizations, to address the complaints of bidders that may occur prior to the entry into force of the procurement contract. (2) Any bidder feeling aggrieved by any act of the procuring agency after the submission of his bid may lodge a written complaint concerning his grievances not later than fifteen days after the announcement of the bid evaluation report under rule 35. (3) The commillee shall investigate and decide upon the complaint within fifteen days of the receipt of the complaint. (4) Mere fact of lodging of a complaint shall not warrant suspension of the procurement process. (5) Any bidder not satisfied with the decision of the committee of the procuring agency may lodge an appeal in the relevant court of jurisdiction." (Emphasis added) 12. Respondent No,2, along With its written comments in Writ Petition No,295/2017, filed a copy of office order dated 13.01.2017, issued by respondent No,2 in compliance with the requirement in Rule 48 of PPR, 2004. Vide the said office order, respondent No,2 constituted a five-member committee to address the complaints and grievances of the bidders participating in the tender in question. The chairman of the said committee was Mian Aurangzeb (Director NPZ). The members of the said committee 'were (i) Mr. Faiz Hussain (Deputy Director, A.J.K./G.B.-), (ii) Mr. Nadeem Rehman (Database Specialist), (iii) Mr. Yasir Mehmood (System Incharge), and (iv) Mr. Altaf Khan (Assistant Director). The said office order is silent as to the "powers and authorizations" given by respondent No,2 to the said committee. 13.Under Rule 48(2) of PPR, 2004, a bidder can lodge a written complaint if aggrieved by an act of the procuring agency "after the submission of his bid". In the case at hand, the bids were admittedly submitted on 14.11.2016. The petitioners' grievance against respondent No,2 began after they were informed on 08.12.2016 that they had been technically qualified but the technical evaluation repori was not disclosed to them. There was no G.R.C. constituted by respondent No,2 at
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that stage for the petitioners to take their grievances to. The G.R.C. was constituted about a month after the bidders were informed that they had all been technically qualified. Respondent No,2 could obviously not have informed the bidders about the fact that they had been technically qualified without having carried out the evaluation of their technical bids. It is an admitted position that on 13.12.2016, respondent No,2 verbally informed all the bidders about their respective technical scores. 14. The fact that respondent No,9's technical score was the highest added to the anxiety of Muhlbauer and the petitioner/Safran to have sight of the technical bid evaluation report. Learned counsel for respondent No,2 submitted that, bearing in mind the requirements of Rule 35 of PPR, 2004, respondent No,2 was under no obligation to reveal the bid evaluation report prior to ten days of the intended date for the award of the procurement contract. He further submitted that since respondent No,2 intended to award the contract in question on 19.01.2017 to respondent No,9, the bid evaluation report was made public on 09.01.2017. Now, if any bidder had a grievance with respect to the bid evaluation report, he had a period of only fifteen days to lodge a complaint in terms of Rule 48(2) of PPR, 2004. Under Rule 48(3) of the PPR, 2004, the G.R.C. is to investigate and decide upon a complaint within fifteen days of the receipt of the complaint. Assuming that a complaint is filed before the G.R.C. on the same very day on which the bid evaluation report is made public, given the fifteen-day period within which the G.R.C. is to investigate and decide upon the complaint, and given the fact that the contract is to be awarded on the tenth day after the bid evaluation report is made public, the aggrieved bidder would be faced with the situation where the decision of the G.R.C. will come after the contract has been awarded. Could, in such circumstances, it be said that a complaint before the G.R.C. is an adequate, alternative and equally efficacious remedy available to an aggrieved bidder. I would say, certainly not. 15. As mentioned above, the G.R.C. was notified by respondent No,2 on 13.01.2017. It is not disputed that bidders' grievances may arise with respect to various facets of a tender bidding process right from the time when the bids are submitted. Indeed under Rule 48 (2) of PPR, 2004, a bidder feeling aggrieved by any act of the procuring agency "after the submission of his bid" may lodge a written complaint before the G.R.C. Although a complaint before the G.R.C. can be submitted not later than fifteen days of the announcement of the bid evaluation report, there is no prohibition for such a complaint being submitted prior to the bid evaluation report. Rule 48 of PPR, 2004, does not envisage the constitution of a G.R.C. only to address a bidder's complaint with respect to a bid evaluation report. A bidder's grievance or complaint against the procuring agency may not be confined to the bid evaluation report, but to a host of other matters after the submission of the bids. 16. For a G.R.C. constituted pursuant to Rule 48 of PPR, 2004, to be treated as an adequate alternative forum where a bidder can raise his grievance with respect to any matter regarding the tender bidding process, after the submission of the bid, it is essential that a G.R.C. be constituted by the procuring agency by the date when the bids are submitted. It is also imperative that the members of such a G.R.C. should have the requisite independence and seniority to review and set aside the procuring agency's senior management' s decisions which are questioned by a bidder before such a G.R.C. A G.R.C. could hardly be termed as an adequate alternative forum when its members do not have the requisite independence and seniority so as to enable them to set aside the decisions of the senior management of the procuring agency. This requirement, in my view, is implicit by the adoption of the words "with proper powers and authorizations" in Rule 48(1) of PPR, 2004. Rule 48(1) ibid does not obligate the procuring agency to constitute a G.R.C. comprising of its own employees/officials. A procuring agency will be well within its rights to constitute such a G.R.C. comprising of persons who may not be in its employment, and who are experts in the relevant field or have experience in adjudication, and are independent enough to strike down a decision of a procuring agency, including the decision to award a procurement contract to a particular bidder,
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without any fear of reprisals by the senior management of the procuring agency whose decisions are subjected to challenge before it. I am of the view that the members of the G.R.C. constituted by respondent No,2 are not senior and independent enough to review or set aside decisions taken by the senior management of respondent No,2 with respect to the bidding process. A G.R.C. comprising of officials subordinate to the ones whose decision is subjected to a challenge by a bidder can hardly be termed as independent enough to unhesitatingly take a decision to set aside a decision taken by their superordinates. 17. Respondent No,2 did not bring any document on record showing that the G.R.C. constituted by it on 13.01.2017 had the necessary "powers and authorizations" to stay the procurement process if the circumstances so warranted. In the absence of such an authorization, it cannot be asserted that the G.R.C. had the power to stay the procurement process. Even otherwise, there is no prescription in the PPR, 2004 for a G.R.C. to enforce its interim decisions made before the final decision on the bidder's grievance petition. 18. As mentioned above, ordinarily writ jurisdiction is not available in cases where there is an adequate and specific remedy provided under a statute. However, in order for the High Court to decline the grant of mandamus, the remedy provided under the statute to the petitioner must be specific, adequate, equally convenient, beneficial and effective. It is the inadequacy and not the absence of the alternative remedy that would determine whether a writ petition should be entertained. In the case of Lt. Col. Nawabzada Muhammad Ameer Khan v. Controller of Excise Duty (PLD 1961 SC 119), it was held that the rule that a High Court will not entertain a writ petition when another appropriate remedy is avaiiable, is not a rule of law barring the jurisdiction of the High Court but rule by which the Court regulates its jurisdiction. The same view was taken by the Honourable Supreme Court of Pakistan in the cases of Murree Brewery Co. Ltd. v. Pakistan (PLD 1972 SC 279), and Town Committee Gakhar Mandi v. Authority under the Payment of Wages Act (PLD 2002 SC 452). In the case of Gatron (Industries) Pvt. Ltd. v. Government of Pakistan and others (1999 SCMR 1072), it has been held as follows:- "15. It is well-settled that the rule about invoking the Constitution jurisdiction only after exhausting all other remedies, is a rule of convenience and discretion by which the Court regulates its proceedings and it is not a rule of law affecting the jurisdiction. A Constitution petition is competent if an order is passed by a Court or Authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case." 19. Muhlbauer, on 13.12.2016, submitted its grievance letters to respondent No,2 and the Minister for Interior, and on 19.12.2016, the petitioner/S.I.S. filed Writ Petition No,4650/2016. In the said letters dated 13.12.2016, Muhlbauer raised an objection with respect to results of the technical evaluation of Muhlbauer's bid. Muhlbauer requested for an immediate re-evaluation of its technical bid. It is my view that since respondent No,2 had not constituted a G.R.C. by the said date, Muhlbauer's grievances could not have been forwarded to a committee envisaged by Rule 48 of PPR, 2004. In such circumstances, for respondents Nos,2 and 9 to assert that Muhlbauer and or the petitioner/S.I.S. could not have invoked the constitutional jurisdiction of this Court without taking its grievance before the G.R.C., is untenable. The G.R.C. was constituted by respondent No,2 about a month after Muhlbauer had submitted its grievances to respondent No,2 vide letters dated 13.12.2016. Therefore, when there is no G.R.C. constituted by a procuring agency when a bidder's grievance arises, he cannot be faulted for invoking the jurisdiction of the High Court under Article 199 of the Constitution. 20. After the constitution of the G.R.C., respondent No,2 vide letter dated 13.01.2017, asked the petitioner/S.I.S. to submit its objections/ grievances by 17.01.2017, and appear before the G.R.C. on 18.01.2017. This was admitted by the petitioner/S.1.S. in its reply to respondent No,9's application for
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the rejection of Writ Petition No,4650/2016. Vide letter dated 17.01.2017, the petitioner/S.I.S. informed respondent No,2 that it would not be appearing before the G.R.C. By this stage, the petitioner/S.I.S. had already filed Writ Petition No,4650/2016 and had obtained injunctive relief. 21. The G.R.C. envisaged by Rule 48 of PPR, 2004 is neither a judicial nor a quasi judicial forum. It certainly does not have the power to issue an injunction. Therefore, given the facts of the case at hand, it is my view that the G.R.C. constituted by respondent No,2 could not be termed as an alternative forum which could remedy the petitioners' bidder's grievances in as adequate and efficacious a manner as this Court could in exercise of its jurisdiction under Article 199 of the Constitution. The judgments relied upon by the learned counsel for respondent No,2 and respondent No,9 are based on facts which are different to the facts in the instant case. 22. Learned counsel for respondent No,9 submitted that since the petitioner/Safran had filed a grievance petition before the G.R.C. and also participated in the hearing before the G.R.C., it could challenge the G.R.C.'s decision dated 07.02.2017 in accordance with Rule 48(5) of the PPR, 2004. 23. True, the petitioner/Safran, on 17.01.2017, submitted its grievances to respondent No,2 for consideration by the G.R.C. In its grievance petition, the petitioner/Safran expressed its apprehension regarding the ability/capacity, neutrality and impartiality of the G.R.C. constituted by respondent No,2, Respondent No,2 was alleged to have been partial and biased towards respondent No,9. The petitioner/Safran in its grievance petition, also took issue with respondent No,2 in giving less marks to the petitioner/Safran in the technical evaluation process with respect to eight items. It also expressed its reservation against respondent No,2's reluctance to release the technical evaluation report in a timely manner. The petitioner/Safran is said to have attended the hearing before the G.R.C. on 18.01.2017. On 07.02.2017, the G.R.C. concluded that the grievances raised by the petitioner/Safran were not valid, and that no violation of the evaluation criteria or the PPR, 2004 had been found. The G.R.C. did not find any evidence of collusion between respondent No,2 and respondent No,9. The G.R.C. gave its findings on each of the eight specific objections raised by the petitioner/Safran to the technical evaluation of its bid. The G.R.C. gave its decision after the petitioner/Safran had filed Writ Petition No,295/2017. 24. Rule 48(5) of the PPR, 2004 is a unique provision, and for which I have not found any precedent or parallel. It provides a remedy of an appeal to "the relevant Court of jurisdiction" against the decision of a G.R.C. Now, what does this mean? A Court of the learned Civil Judge does not exercise appellate jurisdiction. Would "the relevant Court of jurisdiction" be the District Court? I would say no, simply because it is not so specified in the said Rule. The learned counsel for the contesting parties did not render any assistance worth the name regarding the manifest absurdity in the said Rule. It is not for this Court to hold that reference to "the relevant Court of jurisdiction" in Rule 48(5) ibid means this Court or that Court unless the said Rule is suitably amended and clarity brought into it. For the present purposes, suffice it to say that given the language of the said Rule 48(5) ibid, I cannot hold that a substantive right of an appeal has been granted by law to a bidder dissatisfied with a decision of the G.R.C. Therefore, the contention of the learned counsel for respondent No,9 that Writ Petition No,295/2017 instituted by the petitioner/Safran was not maintainable because G.R.C.'s decision dated 07.02.2017 had not been challenged in an appeal under Rule 48(5) ibid, does not appeal to me. WHETHER WRIT PETITION NO.295/2017 WAS COMPETENTLY INSTITUTED BY THE PETITIONER/ SAFRAN:- 25. Learned counsel for respondent No,9 raised an objection to the maintainability of the writ petition on the ground that the authorization dated 24.01.2017 issued by the petitioner/Safran in favour of Mr. Salman Ejaz, to engage counsel, and to institute a petition, and to defend the petitioner/Safran (who was respondent No,10 in Writ Petition No,4560/2016), had neither been notarized by a Notary Public in the country where the said document was executed, nor was it
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attested by Pakistan's diplomatic mission in the country where the said authorization was made. Indeed, when Writ Petition No,295/2017 was filed on 26.01.2017, the copy of the said authorization dated 24.01.2017, filed along with the said writ petition was neither notarized nor attested by Pakistan's diplomatic mission. However, before the judgment was reserved, the original authorization dated 24.01.2017 duly notarized and attested by the third secretary of Embassy of Pakistan at Paris, was brought on record. This having been done, I do not find any merit in the said objection raised by the learned counsel for respondent No,9. At times a company incorporated abroad and having a place of its business in Pakistan has to invoke the jurisdiction of the Court in Pakistan on an emergent basis. In such circumstances to require such a foreign entity to have a power of attorney or a board resolution notarized and attested in the foreign country and then file such a document along with the petition or suit instituted in Pakistan, would be unreasonable and inequitable. As long as in the pleadings it is pleaded that the legal proceedings are being instituted with proper authorization/authority and that during the proceedings such authorization/authority, obtained prior to the institution of the proceedings, but notarized and consularized subsequently, is brought on the record, the proceedings cannot be considered to have been wrongfully instituted. WHETHER THE WRIT PETITION NO.4650/2016 FILED BY THE PETITIONER/S.I.S. WAS MAINTAINABLE IN VIEW OF THE FACT THAT MUHLBAUER WAS NOT A PARTY TO SAID WRIT PETITION:- 26. Learned counsel for respondent No,9 strenuously objected to the maintainability of the Writ Petition No,4650/2016, instituted by the petitioner/S.I.S., on the ground that the said petitioner was neither a joint venture partner nor an adjunct of Muhlbauer. He submitted that the petitioner/S.I.S. did not have the locus standi" to file the said writ petition on the basis of the "teaming agreement" dated 12.10.2016, between the petitioner/S.I.S. and Muhlbauer. He further submitted that the petitioner/S.I.S. being the local…
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