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Petitioner: MAQBOOL ASSOCIATES (PVT.) LTD. and others VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Islamabad High Court Judge(s): Aamer Farooq Title:MAQBOOL ASSOCIATES (PVT.) LTD. and others vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLJ 2016 Islamabad 543, 2016 MLD 2006 Result: Petitions dismissed Judgment JUDGMENT ' AAMER FAROOQ, J.--- Through this consolidated judgment the instant petition as well as Writ Petition No,197/2016 are being decided as common questions of law and facts are, involved. 2. The petitioners are aggrieved of rejection of bid and non-awarding of the contract with respect to two projects of respondents Nos.2 and 3 i.e, N-70 and N-50. In this behalf on 19.12.2014 National Highway Authority i.e, respondent No,2 published an advertisement in the newspapers inviting bids from eligible bidders for two departmental projects in Balochistan. For the purposes of present controversy two relevant contracts were ICB-N-70 Upgradation, Widening and Improvement of Qila Saifullah to Loralai Walgum Rud section of National Highway N-70. The referred project consisted of two lots i.e, Lot-I Qila Saifullah to Loralai and Lot-II Loralai to Waigum Rud (Subject matter of the instant petition). The other project pertained to ICB N-50 Upgradation Widening and Improvement of Zhob to Mughalkot section of National Highway N-50. The referred project also consisted of two Lots i.e, Lot-I Zhob to Killi Khudae Nazar and Lot-II Killi Khudae Nazar to Mughalkot (Subject matter of W.P. No,197/2016). According to the advertisement the bidding process was according to International Competitive Bidding and was based on Two Envelope Single Stage. Moreover, a bidder could bid for any one lot or all the lots. On 05.03.2015 the Joint Venture of the petitioners submitted bids to respondent No,2 for Lots-I and II vis-a-vis N-50 as well as Lot-I and II vis-a-vis N- 70 projects. On 17.08.2015 the petitioners were informed that they are technically qualified for all lots of the projects. The petitioners were also informed that the opening of the financial bids will take place on 18.08.2015 and in this behalf N-70 Lot-I, Lot-II bids would be opened and likewise N-50 Lot-I and Lot-II bids shall be opened. The referred sequence was changed, however, was corrected on
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the protest of the petitioners. On 18.08.2015 bids were opened and according to the petitioners they were lowest bidders in all four Lots. In this behalf the petitioners made a bid for N-70 Lot-I to the tune of Rs,235,669,822/- and with respect to Lot-II Rs,310,643,689/-. Similarly, with respect to project N-50 Lot-I bid was Rs,359,653,747/-, however, the petitioners were not lowest bidder for Lot-II of N- 50 project. The petitioners were declared successful with respect to N-70 Lot-II and vis-a-vis N-50 Lot-II. In the instant petition as well as W.P. No,197/2016 grievance has been raised for not declaring the petitioners successful in respect to Lot-I of N-70 and Lot-I of N-50. 3. Learned counsel for the petitioners inter alia submitted that the bids of the petitioners have been rejected without any reason or justification. In this behalf it was contended that the petitioners were technically qualified and their does not exist any reason for rejection of their bids on technical grounds. In this behalf it was contended that in the bid with respect to Lot-I of N-70 the contract has not been awarded to the petitioners on the sole basis that they do not have the technical and financial capacity to undertake the same. It was contended that since the petitioners stood technically qualified, therefore, there is no justification for raising this objection; that the petitioners have expertise and technical know how to carry out all the four projects. It was also contended that the process of the bidding is tainted with mala fide. In this behalf learned counsel pointed out that to technically knockout the petitioners on the ground of insufficient capacity is not tenable; that under the bidding documents where there are multiple contracts the employer i.e, National Highway Authority was to evaluate and compare bids on the basis of contract, or combination of contracts, or as a total of contracts in order to arrive at the least cost combination. Under the referred bidding documents if a bidder submits several successful bids the evaluation shall also include an assessm ent of the bidder's capacity to meet the aggregate requirements. On the basis of the referred clause learned counsel pointed out that since the petitioners were technically qualified, therefore, they had the expertise to carry out the contracts. Learned counsel next submitted that since the bid of the petitioners is 5.29%, lower than the second lowest bidder, therefore, an additional burden is being cast upon the exchequer by declaring respondent No,4 as a successful bidder. 4. Learned counsel for the petitioners with respect to being unsuccessful vis-a-vis Lot-I of N-50 submitted that the bid of the petitioner was lowest, however, only due to an error it has been held to be not so. In this behalf it was contended that there was a typographical error by virtue of which the amount was expressed as higher. In this behalf the bid of the petitioners was taken to be Rs,657,268,460,896/- which could not have been the case as the error was typographical and arithmetical in summing up various terms. Learned counsel submitted that in this behalf various letters were written to respondents Nos.2 and 3 which were not duly replied; that under the bidding documents it is permissible for a bidder to correct any technical error by intimating the same to the employer which was accordingly done but respondents Nos.2 and 3 did not reply and the bid of the petitioners was taken which was typographically and arithmetically incorrect. Learned counsel further submitted that failure to respond to the letters of the petitioners by respondents Nos.2 and 3 is based on mala fide. Similarly, it was contended that if the correct amount is taken after adding all the items and in words then the petitioners' bid is lowest, therefore, the contract vis-a-vis N-50 Lot-I should have been granted to the petitioners as well. It was also contended that where the contract is awarded in a nontransparent manner at any inflated cost the same can be set aside. The petitioners also, during the course of proceedings, moved applications challenging the award of contract to respondent No,4 in both the petitions (C.M. No,687/2016 and C.M. No,689/2016). In support of his contentions learned counsel placed reliance on the case titled Raja Mujahid Muzaffar and others v. Federation of Pakistan and others (2012 SCM R 1651), Messrs Presson Manufacturing Limited and another v. Secretary, Ministry of Petroleum and Natural Resources and 2 others (1995 M LD 15), Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam
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International Airport, Karachi and others (1998 SCM R 2268), Petrosin Gas Pakistan, Pvt. Ltd. v. Pakistan State Oil and another (2010 YLR 2643), Petrosin Corporation Pvt. Ltd. And 2 others v. Oil and Gas Development Company Ltd. Through Managing Director (2007 CLD 578), Twig Aziz ud Din and others; in re (Human rights cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009) (2010 SCM R 1301) and Petrosin Products Pvt. Ltd. v. Federation of Pakistan through Secretary Privatization Commission (2001 CLC 1412). 5. Learned counsel for respondents Nos.2 and 3 inter alia submitted that the instant petition as well as W.P. No,197/2016 is not maintainable inasmuch as the petitioners have an alternate remedy under Public Procurement Regulatory Authority, Rules, 2004 (PPRA) which they also availed, however, now are prolonging the proceedings before the referred alternate forum. It was also contended that the petitioners have approached this Court with unclean hands inasmuch as the contracts/letters of acceptance were awarded to respondent No,4 in both the petitions on 14.01.2016; that the petitioners have no vested right to be awarded the contract. Learned counsel also contended that under the PPRA Rules and Bidding Documents the respondents are not bound to declare successful any bidder which has made the lowest bid, however, the contract is to be awarded to the lowest evaluated bid and since in the instant petition the petitioners do not have the technical knowhow and expertise, therefore, they 'were not awarded the first Lot of N-70 and with respect to N-50 petitioners have also not come with clean hands as the bid was not the lowest. It was also contended that .The petitioners are blowing hot and cold at the same time inasmuch as they are the beneficiaries of the entire bidding process whereas the process is being referred to as based on mala fide and non-transparent. Learned counsel also pointed out that earlier a petition was filed by another bidder in which the petitioners were one of the respondents and in the same the respondents had filed a reply and categorically submitted that the bidding process was fair and transparent (W.P. No,2641/2015). It was also contended that in the referred proceedings the petitioners had taken a categorical stance that the writ petition is not maintainable in light of PPRA Rules which provides for alternate remedy before Grievance Redressal Committee; that the projects in question are being funded by Asian Development Bank; in this behalf the projects pertain to two sections viz N-50 and N-70 and both were divided into two Lots, therefore, the total four Lots/packages were to be awarded; all bidders were free to bid for one or more of the Lots, however, the award of more than one Lot was subject to fulfillment of the criteria provided in section 3 of Evaluation and Qualification Criteria i.e, "National Highway Authority Evaluation of Bids" to arrive at lowest combination and evaluation of the bidders' capacity to meet the aggregated requirements for carrying out works on multiple projects: In this behalf learned counsel contended that the petitioners were qualified for the bid and were the lowest announced bidders, however, evaluation of their bids revealed that they were not the lowest with respect to Lot-I of N-50 as they had made a bid for Rs,443,564,473/- and after qualification of their unit rates it was revealed that they had calculated the price wrongly and the total calculation turnout to be Rs,65,726,846,896/-, therefore, they ceased to be the lowest bidder. It was next contended that the petitioners failed to qualify with respect to aggregate qualification requirements i.e, to carry out all four projects and in this behalf also did not have the financial capacity/requisite experience in respect thereto. Similarly, it was contended that they did not have the manpower and machines to carry out the projects. In support of his contentions learned counsel placed reliance on the case titled M/s M.K. International Local Agent of M/s Interman Trading FZE v. SW Southern Gas Company through M.D. And 2 others (2016 CLC 1), Techno Time Construction Company through Partner v. Punjab Highway Department through Chief Engineer and 2 others (2014 M LD 874), Messrs Khalid and Brother through Proprietor and 5 others v. Punjab Province through Secretary Housing Urban Development and Public Health Engineering Department, Punjab, Lahore and 2 others (2014 CLD 1410), Petrosin Corporation Ltd. v. Oil and Gas Development Company Ltd. Through Managing
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Director (2010 CLD 15), Ayaz Builders through Partner v. Karachi Water and Sewerage Board through Managing Director and 2 others (2007 CLC 728). 6. Learned counsel for respondent No,4 (the respondent who was declared successful bidder) contended that tender process has been undertaken in accordance with ADB Guidelines and with concurrence of ADB at every stage. The Bidding Documents were based on the standard bidding material. In this behalf it was pointed out that under clause 36.4 of Instructions to Bidders where bidders quoted, separate prices for different contracts the methodology to determine the lowest evaluation price is specified in section 3 of Evaluation and Qualification Criteria. In this behalf it was pointed out that the awarding of multiple contract is dealt in clause 1.2 and the decision of National Highway Authority is based on Multiple Contract Criteria. It was also contended that the petitioners' technical qualifications were conditional as the letter of technical qualification expressly states that the opening of bids and award of the works is subject to fulfilling multiple contracts requirements. In this behalf though the petitioners were the lowest bidders in both the Lots, however, National Highway Authority followed the multiple contract formula to evaluate whether the petitioners had construction experience, financial resources, equipment and personnel to undertake both the Lots. Learned counsel also contended that the instant petition is not maintainable in light of alternate remedy available to the petitioners which has been duly availed. In this behalf reliance was placed on Maqbool Associates Pvt. Ltd. v. Paksitan Power Park Management Company and others (2015 M LD 1790). It was further 'contended that the controversy involves disputed question of facts which cannot be adjudicated in writ jurisdiction. Learned counsel pointed out that in contractual disputes this Court under Article 199 of the Constitution interferes only if there is mala fide, arbitrariness or nepotism floating on the face of record which in the instant case is not there, therefore, no interference can be made in the Constitutional jurisdiction by this Court. Learned counsel also submitted that the question as to whether the petitioners had the technical skill and knowhow, this aspect can only be fairly determined by respondents Nos.2 and 3 and cannot be adjudicated in a writ jurisdiction. Reliance was placed on the case titled Messrs Arshad and Company v. Capital Development Authority, Islamabad through Chairman (2000 SCM R 1557), Al-Abbas Sugar Mills Limited v. Managing Director, Karachi Water and Sewerage Board and 2 others (2006 CLD 674) and Messrs Michigan Rubber India Ltd. v. State of Karnataka and others (2013 SCM R 526). Learned counsel also adopted the arguments raised by the learned counsel for respondents Nos.2 and 3 that the lowest bid can be rejected. Reliance was placed on the case titled Ayaz Builders through Partner v. Karachi Water and Sewerage Board through Managing Director and 2 others (2007 CLC 728), Afzal Motors Company Pvt. Ltd. v. Province of Sindh and others (2009 CLD 798) and Raunaq International Ltd. v. I. V.R. Construction Ltd. And others (AIR 1999 Supreme Court 393). 7. Learned counsel for respondent No,4 in W.P. No,197/2016 inter alia submitted that the petitioners have alternate remedy and on the basis thereof the instant petition is not maintainable. In this behalf reliance was placed on the case titled Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCM R 455), Muhammad Irshad and another v. Tehsil Municipal Administration through Tehsil Nazim, Lodhran and 3 others (2006 CLC 1902), Mehboob All Malik v. The Province of West Pakistan and 2. The Lahore Municipal Corporation (PLD 1963 (W.P.) Lahore 575), Jamshoro Joint Venture Ltd. And others v. Khawaja Muhammad Asif and others (2014 SCM R 1858). It was also contended that bids were made in. March, 2015 whereas the first letter of correction was written somewhere in August, 2015 after about six months and the petitioners all this time did not approach the employer/NHA. It was next contended that the petitioners made a written complaint on 11.01.2016 under Rule 48 of PPRA Rules, 2004 for constitution of Grievance Redressal Committee which was so constituted, however, the petitioners then did not appear before the said Committee and the matter lingered for one reason or the other and instead the
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petitioners filed the instant petition. Learned counsel also pointed out that there is a discrepancy in the bid made by the petitioners and on that account their bid was liable to be rejected inasmuch as the discrepancy is not of the type which can be cured/rectified under the Bidding Documents. 8. All the respondents have taken preliminary objection regarding the maintainability of the writ petition in light of alternate remedy available to the petitioners which they did avail. In this behalf under Rule 48 of PPRA Rules, 2004 Procuring Agency has to constitute a Grievance Redressal Committee which shall address the grievance of the bidder within a period of 15 days. A bidder, if is aggrieved of the decision of the Committee, can file an appeal before the Court of competent jurisdiction. In this behalf for the sake of brevity the relevant rule is reproduced below and is as follows: "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 committee 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." 9. In case of Maqbool Associates Pvt. Ltd. v. Pakistan Power Park Management Company and others (2015 M LD 1790} this Court while relying upon earlier decision reported as 2011 M LD 1876 held that in the presence of alternate and adequate remedy under Rule 48 of PPRA A Rules, 2004 a writ petition should only be entertained as an exception and not a rule. 10. Another primary objection which has been taken in the instant case is that since the bid of the petitioners in the instant writ petition has been dismissed on the ground that they did not .Have the requisite experience and qualification. The sole judge of the referred issue can be respondents Nos.2 and 3 and the matter cannot be adjudicated in the writ petition. In this behalf since the petitioners made a bid for all four Lots, therefore, they were evaluated on the basis of Multiple Contracts Criteria as provided in clause 1.2 of section 3 of Evaluation and Qualification Criteria. The relevant criteria is reproduced below and is as follows: "1.2 Multiple contracts ' Works are grouped in multiple contracts and pursuant to ITB 36.4, the Employer will evaluate and compare Bids on the basis of a contract, or a combination of contracts, or as a total of contracts in order to arrive at the least cost combination for the Employer by taking into account discounts offered by Bidders in case of award of multiple contracts. (i) Lot-I (ii) Lot-II ' If a Bidder submits several successful (lowest evaluated substantially responsive) bids, the evaluation will also include an assessment of the Bidder's capacity to meet the following aggregated requirements as presented in the bid: * Construction Experience (value of similar contracts previously undertaken by the Bidder), * Financial Resources Requirements, * Equipment to be allocated, and * Personnel to be fielded."
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11. The bare reading of the referred clause shows that in addition to fact that a bidder has made the lowest bid; the assessm ent shall also include bidders' capacity to meet the following aggregated requirements in the bid which include; construction Experience, Financial Resources Requirements, Equipment to be allocated and Personnel to be fielded. The respondents have rejected the bid of the petitioners on the ground that they do not meet the requisite criteria vis-a-vis construction and financial experience as well as equipment and personnel which fact has been denied by them. Though the petitioners as well as respondents Nos.2 and 3 have pointed out various documents in support of their stances, however, assertion of lack of experience of respondents Nos.2 and 3 and its denial by the petitioners leads to disputed question of facts which cannot be adjudicated in Constitutional jurisdiction. Learned counsel for the petitioners has vehemently argued that since the bid of the petitioners was lowest, therefore, the lack of experience could not have formed basis for rejection of the bid or non-awarding of the contract to the petitioners. In this behalf under Rule 38 of PPRA Rules, 2004 it is provided that the bidder with the lowest evaluated bid, if not in conflict with any other law, rules, regulations or policy of the Federal Government, shall be awarded the procurement contract. In this behalf case law relied upon by the learned counsel for respondent No,4 is instructive, inasmuch as the decision whether the bid of the petitioners was lowest evaluated bid in light of multiple contracts criteria mentioned hereinabove is sole prerogative of respondents Nos.2 and 3 and whether the decision with respect thereto has been taken erroneously cannot be adjudicated in a Constitutional petition as this Court lacks the requisite skill and, ability to evaluate the expertise of the petitioners. In this behalf in Messrs Arshad and company v. Capital Development Authority, Islamabad through Chairman (2000 SCM R 1557) it was held as follows: ' "Let we mention here at the outset that it would not be possible to decide the factual controversy and disputed facts such as whether the petitioner/firm has got the skill, technical know-how, modern equipments, capability and resource to accomplish the task in question and in our considered opinion CDA is in better position to determine such ticklish and technical questions it is well settled by now that "the superior Courts should not involve themselves into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for-litigation by a suit. The Constitutional jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed fact". (1971 SCMR 110, 1970 SCMR 853, PLD 1964 SC 636, PLD 1983 SC 280. 6. In such view of the matter we cannot give the petitioner/firm certificate of fitness for pre- qualification as technical and expert opinion cannot be substituted. We have not been able to agree to persuade ourselves with Ch. Mushtaq Ahmad Khan, Advocate Supreme Court that it is a case of sheer discrimination for the reason that discrimination always involves an element of unfavourable bias which cannot be proved on the basis of bald assertion but requires solid and concrete evidence which apparently is lacking. The award of contract falls within the discretionary domain of CDA and every exercise of discretion is not an act of discrimination." ' In case titled Al-Abbas Sugar Mills Limited v. Managing Director, Karachi Water and Sewerage Board and 2 others (2006 CLD 674) it was held as follows: "8. We have carefully perused paragraph 6.7(a) of the Guielines. The word used in the para. Is "may" which does not make it obligatory on the part of the respondent No,1 to hold post bid meeting with the contesting parties. The respondent No,1 has rightly relied upon the evaluation report, which deals with all the aspects and opinion of the respondent No,1 after the evaluation report of the Committee by holding post bid meeting was insignificant for want of technical expertise. The report of the Evaluation Committee runs into 50 to 60 pages and each and every
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aspect of the bid documents submitted by the parties were examined. Mere non-inviting the petitioners for post bid meeting therefore, would not nullify the recommendations of the Evaluation Committee. Even otherwise, the nature of the terms contained in the bid are procedural/ directory in nature and would in no way be termed as mandatory in nature to nullify the award of contract in favour of the respondent No,3 projects of the nature are dependent on the expertise and the professionalism which can only be examined by the experts. In the present case the NESPAK which has sufficient experience in such projects once recommended award of contract in favour of respondent No,3 this Court in writ of mandamus would not nullify such award of contract for want of compliance of the terms which, ex facie, are procedural in nature and have no substantial bearing on the award of the contract." ' In case titled Messrs Michigan Rubber India Ltd. v. State of Karnataka and others (2013…
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