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Official Citation: 2024 SHC 1462
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 3760/2024 (D.B.) Sindh High Court, Karachi - Cosmos Enterprises & Others (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 1462. In this matter between Const. P. 3760/2024 (D.B.) Sindh High Court, Karachi - Cosmos Enterprises & Others (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: Sindh High Court CASE NO: Const. P. 3760/2024 (D.B.) Sindh High Court, Karachi CITATION: 2024 SHC KHI 1462 PARTIES: Cosmos Enterprises & Others (Petitioner) ORDER DATE: 20-NOV-24 BENCH: Hon'ble Chief Justice Mr. Justice Muhammad Shafi Siddiqui, Hon'ble Mr. Justice Jawad Akbar Sarwana(Author) A.F.R: Yes ------------------------------------------------------------ JUDGMENT SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Present: Mr. Justice Muhammad Shafi Siddiqui, CJ Mr. Justice Jawad Akbar Sarwana.
C.P No.D-3760 of 2024
Petitioners: Cosmos Enterprises and Three (3) Others through M/s Haider Waheed and Romain Qamar, Advocates
C.P No.D-3868 of 2024
Petitioner: M/s Kamran Ahmed Bhutto through Syed Shahzad Ali Shah, Advocate
C.P No.D-3996 of 2024
Petitioners: M/s Abdullah & Brothers and Another through Mr. Obaid-ur-Rehman Khan, Advocate
C.P No.D-4821 of 2024
Petitioner: Cosmos Enterprises through M/s Haider Waheed and Romain Qamar, Advocates
C.P No.D-5060 of 2024
Petitioners: M/s Abdullah & Brothers and Another through Mr. Obaid-ur-Rehman Khan, Advocate
Versus
Respondents: Province of Sindh and others through Mr. Saifullah, Addl. A.G Sindh Mr. Qamar Zaman Shah, Assistant Director (Legal) SPPRA.
Mr. Haq Nawaz Soomro, ASP on behalf of DIG Prisons, Karachi.
Mr. Imtiaz Ali Soomro, AIG Sindh Prisons on behalf of I.G Sindh Prisons, Karachi.
Date of hearing: 12.11.2024
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Date of Decision: 20.11.2024
C O M M O N J U D G M E N T
JAWAD AKBAR SARWANA, J: These five (5) constitution petitions filed by seven (7) petitioners challenge the procurement for supplying dietary articles / cooked food to six (6) out of 22 prison facilities in Sindh.1 The procurement involves two tenders : (i) the first tender invitation published on 19.05.2024 (s. nos.17-22), which tender eventually got cancelled on 29.07.2024 ; and (ii) another (second) re-tender (s. nos.1-6) published on 02.08.2024, which re - tender seeks bids for the same product lines and prison facilities as the first tender. Hence, this Common Judgment. The concerned six (6) prison facilities in the Interior of Sindh are as follows:
S. No.
Prison Facilities S. No. in First Tender (May 2024) S. No. in Re- Tender (Aug 2024)
1. Central Prison & Correction Facility at Hyderabad #17 #1 2. Special Prison & Correction Facility Nara Hyderabad #18 #4 3.
Special Prison & Correction Facility Sukkur #19 #3 4.
Central Prison & Correction Facility Khairpur #20 #4
1 The following six (6) petitioners are agitating their claims across the five (5) petitions:
First Tender 19.05.2024 (Cancelled 29.07.2024)
Re-Tender dated 02.08.2024
S# Petitioners in CP D-3760/2024
S# Petitioner in CP D-4821/2024
1. Cosmos Enterprises 1. Cosmos Enterprises 2. Asif Enterprises 3. Naeemuddin & Brothers 4. Ziauddin Contractors
S# Petitioner in CP D-3868/2024
1. Kamran Ahmed Bhutto
S# Petitioners in CP D-3996/2024
S# Petitioners in CP D-5060/2024
1. Abdullah & Brothers 1. Abdullah & Brothers 2. Bilal Contractor 2. Bilal Contractors
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5.
District Prison & Correction Facility Shikarpur #21 #5 6.
District Prison & Correction Facility Jacobabad #22 #6
2. At the outset, it is pertinent to mention that the Superior Courts of Pakistan have held/observed that the cost of three meals for each prisoner alone is an inadequate criterion to provide a sufficiently nutritious diet to fulfil the prisoner’s dietary requirements. Further, if the contractor selected to provide meals at the prison or correction facility deviates from the dietary schedule or provides substandard quality food, his contract may be cancelled immediately. Finally, a failure to provide a minimum degree of nutrition in every meal given to prisons is against the injunctions of Islam. 2 The respondent no.2, the Sindh Prisons and Corrections Services (“SPCS”) and respondent no.3, the Procurement Committee -IV (Dietary Supply & Cooked Food)(“Procurement Committee”) , are duty-bound at all times to ensure compliance with the Sindh Public Procurement Act, 2009 read with the Sindh Public Procurement Rules (“SRPR”), 2010, the terms and conditions of the tender and to ensure that the observations of the Superior Courts are also followed in letter and spirit.
3. A brief chronology of events concerning the two tenders is as follows:
19.05.2024 The Sindh Prisons & Corrections Services (SPCS), 3 published tender notices in major newspapers for dietary articles/cooked food to the prison inmates of Sindh Province for the year 2024 -2025 by way of a Single Stage Two Envelope Procedure.
2 Federal Shariat Court Judgment dated 28.08.2009 (11th Segment) passed in Shariat Petition No.61/1992 and Order dated 30.09.2010 passed in CP No.D -222/20210 and MIT (Inquiry) Report 3 Available on page 57 of CP No.D-3760/2024
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06.06.2024 All petitioners submitted their bid documents by 06.06.2024, when the Procurement Committee accessed/opened their technical bids.4
03.07.2024 After scrutinizing the technical bids, the Procurement Committee also opened the petitioners' financial bids/proposals and found certain shortcomings in the financial bids for the six prisons mentioned in serial nos.17-22. In summary, they noted that the petitioner in CP No.3868/2024, bidder, Kamran Ahmed Bhutto, had offered abnormally low/unrealistic rates, that these were the same offered rates which were awarded during the year 2022-2023 and on comparison of their rates with other successful 1st lowest bidders, the average realistic rates were between Rs.321/- to Rs.360, etc.5 Therefore, all bids offered by petitioner Kamran Ahmed Bhutto in CP No.D-3868/2024 were rejected.
It may be mentioned here that the bids of t he six (6) petitioners in CP Nos. D-3760/2024 and D-3996/2024 were found to be next in line, i.e. the 2nd lowest bids for the six (6) prisons, after Kamran Ahmed Bhutto . The 2nd lowest bids after Kamran Ahmed Bhutto were as follows: CP-D-3760/2024
17. Hyderabad – Cosmos Enterprises (Petitioner #1)
18. Nara Hyderabad – Naeemuddin & Brothers (Petitioner #3)
20. Khairpur - Ziauddin Contractors (Petitioner #4)
21. Shikarpur – Asif Enterprises (Petitioner #2)
CP-D-3996/2024
4 Available on page 303 of CP No.D-3760/2024 5 Available on pages 313, 325 and 365 of CP No.D-3760/2024
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19. Sukkur – Abdullah & Brothers (Petitioner #1)
22. Jacobabad – Bilal Contractor (Petitioner #2)
The Procurement Committee recommended that , based on its financial evaluation, the above -mentioned tenders from s. nos.17 to 22 may be cancelled and re - invited to ensure realistic rates in view of the market condition.
25.07.2024 The petitioner bidders aggrieved by the recommendations of the Procurement Committee dated 03.07.2024, filed complaints on various dates before the Complaint Redressal Committee (“CRC”),6 whereafter, CRC, after hearing the parties, passed its decision dated 25.07.2024, deciding as follows with respect to the above-mentioned six (6) prisons in the interior of Sindh:
“[Kamran Ahmed Bhutto]. . .in view of the Hon’ble High Court of Sindh at Karachi Order passed in CP No.D-2222/2010 the quality of foods is to be improved. However, the said bidder [Kamran Ahmed Bhutto] did not satisfy the Committee how to improve it on offering running rate of Rs.282/ - to maintain the quantity and quality of food of daily three times cooked food per prisoner per day. Moreover the said bidder himself had already submitted the rate of Rs.325/ in the previous tender of Central Prison Hyderabad during the year 2022 - 2023 and on the other hand the Committee also observed that the cost of food commodities has continuously increased since last two years. Hence, Committee hereby suggests the Procurement Committee that the offers of the 2nd lowest bidders, mentioned at serial no.ii to vii. . .[at the six listed prisons at serial nos.17 -22] may be considered, if deemed appropriate according to SPPRA Rules.”
29.07.2024 Following CRC’s decision dated 25.07.2024, the Procurement Committee noted in its meeting dated 29.07.2024, that there was no provision to award the contract to the 2 nd lowest bidder when the P rocurement
6 From CP No.D-3760/2024, Cosmos Enterprises (Petitioner No.1) filed Complaint on 18.07.2024 (pa ges 409-411), Asif Enterprises (Petitioner No.2) filed Complaint on 22.07.2024 (pages 421 -423), Naeem -ud-din & Brothers (Petitioner No.3) filed Complaint on 19.07.2024 (pages 417-419), Ziauddin Contractor (Petitioner No.4) filed Complaint on 19.07.2024 (pages 413 -415). From CP No.D -3996/2024, Abdullah & Brothers (Petitioner No.1) filed Complaint on 22.07.2024 (page 399) and Bilal Contractor (Petitioner No.2) filed Complaint on 22.07.2024 (page 401).
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Committee had already recommended in its previous meeting dated 03.07.2024 that the tender process at the six (6) prisons may be cancelled and tenders may be re -invited as per Rule 25 of the SPPR, 2010 . Accordingly, the Procurement Committee decided to re- tender.7
4. According to the documents available on record, t he bidder, Kamran Ahmed Bhutto (the petitioner in CP No.3868/2024), filed his Complaint against the recommendation of the Procurement Committee dated 03.07.2024, with the CRC on 15.07.2024.8 It is pertinent to mention that Kamran Ahmed Bhutto vide the Procurement Committee’s recommendation dated 03.07.2024, was also technically disqualified concerning his bid for Central Prison Karachi and District Prison Malir, Karachi and challenged such disqualification in the same Complaint.9 When his Complaint was dismissed by CRC on 25.07.2024, it also included CRC’s reasons for the disqualification of his technical bid for Karachi and Malir. 10 Aggrieved by CRC’s decision, Kamran Ahmed Bhutto filed a Review Appeal before the Review Committee of the Government of Sindh, Sindh Public Procurement Regulatory Authority (“SPPRA”) under Rule 32 of the SPPR, 2010. 11 The Review Committee of S PPRA, after hearing him on 07.08.2024 ,12 rejected the appeal vide its decision dated 07.09.2024 on the ground that the appellant submitted his complaint to the CRC after the lapse of the time period provided under Rule 3 1(1) of the SPPR, 2010 , i.e. the Procurement Agency had already awarded the contract for Karachi and Malir on 12.07.2024 whereas Kamran Ahmed Bhutto filed his Complaint with
7 Minutes of Minutes of the Procurement Committee dated 29.07.2024 is available on pages 395-399 in CP No.D-4821/2024. 8 Copy of Kamran Ahmed Bhutto’s Complaint dated 13.07.2024 is available on pages 107-111 of CP No.D-3868/2024 9 Copy of the Complaint of Kamran Ahmed Bhutto filed with CRC is available on pages 107-111, and the Statement dated 15.08.2024 filed by Kamran Bhutto is available in Part II of CP No.D-3868/2024 on pages 187. 10 Copy of CRC Decision dated 25.07.2024 is available in CP No.D-3868/2024. 11 Copy of Review Application of Kamran Ahmed Bhutto is available in CP No.D - 3868/2024 on pages 119-129. 12 Notice of hearing provided to Kamran Ahmed Bhutto by the Review Committee of SPPRA is available on page 133 of CP No.D-3868/2024.
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CRC on 15.07.2024, i.e. after the award of the Contract .13 On 12.08.2024, Kamran Ahmed Bhutto filed CP No.D -3868/2024 invoking the writ jurisdiction of this Court seeking (a) declaration that the tender in respect of the supply of cooked foods to inmates of Central Prison Karachi and District Jail Malir issued in favor of Cosmos Enterprises ( respondent no.6) and Choudhry Ali Muhammad & Co. ( respondent no.7) should be declared null, void abinitio, unlawful and may be cancelled and direct the SPSC to issue fresh tenders; (b) direct the SPSC to recall its decisions regarding rejection of bid offer of Kamran Ahmed Bhutto, etc.
5. On 01.08.2024, SPC S published the re -tender for the supply of dietary articles/cooked foods in various newspapers for the above-mentioned six (6) prisons and correction facilities in Interior Sindh.14
6. On 06.08.2024, the four (4) petitioners in CP No.D-3760/2024, and on 21.08.2024, the two (2) petitioners in CP No.D -3996/2024, invoked the writ jurisdiction of this Court seeking a declaration to set-aside the Procurement Committee’s decision dated 29.07.2024 to cancel the first tender.
7. On 30.08.2024, based on the evaluation of the technical bids, the technical bids of five (5) out of the seven (7) petitioners in CP Nos. D -3760/2024, 3996/2024 and 3868/2024 were approved, i.e. Cosmos Enterprises, Asif Enterprises, Abdullah & Brothers, Bilal Contractors and Kamran Ahmed Bhutto. 15 The technical bids of Naeem-ud-din Brothers and Ziauddin Contractors were not approved.
8. On the same date, i.e. 30.08.2024, the Procurement Committee proceeded to the financial evaluation of the bidders and after analysing (i) the rates offered in the last awarded contracts for
13 Copy of the Decision of the Review Committee of SPPRA dated 07.09.2024 is available in Part-II of CP No.D-3868/2024 on pages 179-183. 14 Available on pages 69-73 of CP No.D-4821/2024. 15 Procurement Committee’s Recommendation dated 30.08.2024 is available on pages 527-541 of CP No.D-4821/2024.
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the 16 different prisons during the financial year 2024-25 (paragraph 8), (ii) the bids offered by the bidders which resulted in cancellation and re-invitation of the last (first) tender for the same product line for the year 2024-25 (paragraph 9), and (iii) finally the above conditions and issues recommended as follows:16
Re- tender s. no. Cancelled tender s.no.
Name of Prison Recommendations 1. #17 Hyderabad
Abdullah & Brothers 2. #20 Khairpur
For reasons stated therein tender may be cancelled and reinvited afresh.
3. #19 Sukkur
Abdullah & Brother 4. #18 Nara Hyderabad
Bilal Contractor 5. #21 Shikarpur
Abdullah & Brother 6. #22 Jacobabad
Bilal Contractor
9. Aggrieved by the above -referred recommendations of the Procurement Committee dated 30.08.2024, Cosmos Enterprises filed a complaint dated 13.09.2024 with CRC. On 16.09.2024, after hearing the aggrieved bidder, the CRC concluded that:
“. . .the rates Rs.320/- offered by M/s Cosmos Enterprises at six prisons are according to the market survey and not abnormally law in comparison to the last awarded contracts at different 16 prisons during the current fiscal year 2024-2025. Further, the offered rates are realistic as well as most advantageous among the qualified bids according to the terms and conditions of the bid documents. . . .”17
10. On 30.09.2024, Cosmos Enterprises filed CP No.D-4821/2024 invoking the writ jurisdiction of this Court and seeking directions that
16 Page 539-541 of CP No.D-4821/2024 17 Copy of CRC Decision dated 16.09.2024 in Complaint filed by Cosmos Enterprises is available on pages 29-31 of CP No.D-4821/2024
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in view of the Minutes of Meeting dated 16.09.2024, SPCS may be directed to award the contract for all six (6) prisons to the petitioner. Meanwhile, on 10.10.2024, Abdullah & Brothers and Bilal Contractor, petitioner nos.1 and 2, respectively, filed CP No.D - 5060/2024, seeking a declaration that the SPCS Minutes of Meeting of 30.09.2024 be declared illegal, unlawful, void ab initio, ultra vires of the terms and condition of the tender and on principles of natural justice.
11. Counsel for petitioner, Cosmos Enterprises has contended that Abdullah & Brothers and Bilal Contractor CP No.D -3996/2024 concerning the first tender has become infructuous as the said petitioners have withdrawn their bid security and fully participated in the retender process. Counsel for Cosmos Enterprises further contended that the petitioners of CP No. D-3996/2024, having accepted the outcome of the cancellation of the first tender by their participation in the re -tender, cannot agitate any claim under the said first tender. Counsel argued that Cosmos Enterprises had still not withdrawn its bid security from the first tender ; hence, its submissions as set up in Cosmos Enterprises and three (3) Others CP No.D -3760/2024 was on better footing compared to CP No.D - 3996/2024. He argued that Rule 31 of the SPPR, 2010 excluded any other participating bidders from any right to be notified or involved in the adjudication proceedings of the CRC on any bidder’s complaint. He further contended that Abdullah & Brothers and Bilal Contractors had no statutory or constitutional right to be notified of or involved in the CRC hearing on any bidder’s complaint. This he submitted was based on the premise that in procurement proceedings, no bidders or participants have any vested rights in the outcome of the procurement proceedings, nor otherwise, until and unless they have been awarded a contract from which such rights can stem . Finally, on merits, he argued that the Procurement Committee had erred in its calculation concerning Cosmos Enterprises and that once it corrected the calculation , Cosmos Enterprises had emerged as the successful bidder. He argued that
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the error by the Procurement Committee was limited to Cosmos Enterprises alone. It would not change the position of the other bidders on the ladder , and their position would remain the same. Therefore, he submitted that CP No.D -4821/2024 should be allowed, and Cosmos Enterprises should be awarded the contract for all six (6) prisons in the Interior of Sindh.
12. Counsel for Abdullah & Brothers and Bilal Contractors vehemently opposed the submissions of the Counsel for Cosmos Enterprises. He contended that he was the successful bidder in the first tender based on the second-highest bid established by the Procurement Committee for Central Prison Sukkur and District Prison Jacobabad. He further contended that in the re -tender, his two clients had emerged as the successful bidder in five (5) out of the six (6) prison locations as per the Procurement Committee decision dated 30.08.2024. The tender for one location, i.e. Khairpur, was to be re -tendered. As such, as petitioners of CP No.D-5060/2024 were successful bidders at the five (5) prison locations. As such, t he petitioners were not aggrieved by the Procurement Committee’s decision dated 30.08.2024 and did not lodge any complaint with the CRC. He argued that the proceedings of the CRC dated 16.09.2024 were contrary to law and the principle of natural justice , as the successful bidders were not given an opportunity for a hearing. Therefore, he argued that the CRC decision dated 16.09.2024 was liable to be set aside.
13. Counsel for Kamran Ahmed Bhutto argued that he had challenged the first tender proceedings, including the decision s of the CRC dated 25.07.2024, the Review Committee dated 07.09.2024 and the cancellation of the first tender by the Procurement Committee’s decision dated 29.07.2024 . He argued that the Procurement Committee had wrongly concluded that the rates were abnormal and low when, in fact, these were to the economic advantage of SPCS. Therefore, CP No.D-3868/2024 filed by him should be allowed.
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14. We have h eard Counsels, the learned DAG, and the Additional Advocate-General and perused the record. It is apparent on the face of the record that the first tender in respect of the six prisons in the Interior of Sindh mentioned at serial nos.17 to 22 was cancelled by the Procurement Committee decision dated 03.07.2024. When the decision dated 03.07.2024 was challenged by all seven (7) petitioners before the CRC , CRC by its’ decision dated 25.07.2024, recommended that the 2 nd lowest bidders should be awarded the tender. Only Kamran Ahmed Bhutto challenged the decision of the CRC by filing a review/appeal before the Review Committee. None of the others, i.e. the six remaining petitioners, challenged either the decision of the CRC or of the Review Committee. After that, when the Procurement Committee , by its decision dated 29.07.2024, cancelled the first tender and decided to re-tender, none opposed the decision within the framework of the SPPA, 2009, and the rules framed thereunder . Instead, six (6) of the bidders filed CP Nos.D-3760/2024 and D-3996/2024 challenging the Procurement Committee’s decision dated 29.07.2024 in writ jurisdiction under Article 199 of the Constitution of Pakistan , while Kamran Ahmed Bhutto filed CP No.D -3868/2024 challenging the Procurement Committee’s decision dated 29.07.2024 and CRC’s decision dated 25.07.2024 . During the hearing of Kamran Ahmed Bhutto’s petition, the Review Committee also announced its decision dated 07.09.2024, rejecting his review application.
15. Till date, all seven (7) petitioners from CP No.D-3760/2024, D- 3996/2024 and D -3868/2024 have fully participated in the (second) re-tender. They arranged and submitted fresh guarantees/securities and fresh bid offers in this (second) re -tender round albeit they all did so under the cover of certain ad -interim orders passed by this Bench in the three petitions. On 06.08.2024, in CP No.D - 3760/2024, this bench passed ad-interim order that:
“Without prejudice the right rights of the [four] petitioner[s] (i.e. Cosmos Enterprises, Asif Enterprises, Naeem -ud-din & Brothers and Ziauddin Contractors] as agitated by them in this petition, they may participate in
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the tender process [of the (second) re -tender], however, it may not be finalized till further orders in this petition.”
On 21.08.2024, in CP No.D-3996/2024, this Bench passed ad- interim order that:
“Since the procurement process [of the (second) re -tender] has been advertised, without prejudice to the rights agitated by them [Abdullah & Brothers and Bilal Contractors], they may participate in the [(second) re - tender] tender process; however it may not be finalized till further orders in this petition.”
Finally, on 10.09.2024 in CP No.D -3868/2024, this Bench passed orders that the ad -interim orders passed in the above - mentioned two constitution petitions would continue in this petition filed by Kamran Ahmed Bhutto.
16. Out of the seven (7) petitioners of CP No.D -3760/2024, D - 3996/2024 and D -3868/2024 from the first round of the tender process (i.e. the (cancelled) first tender), four (4) petitioners, namely, Asif Enterprises, Naeem -ud-din & Brothers , Ziauddin Contractor, and Kamran Ahmed Bhutto were knocked out from the (second) re - tender. They did not challenge the technical bid / financial evaluation decisions of the Procurement Committee , ousting them from the (second) re -tender. Further, they neither initiated any litigation concerning the second (re -tender) nor did their Counsel mention any such litigation made by them, n or at least none is before us. The ad -interim orders passed in the three petitions concerned only the first (cancelled) tender. Thus, the challenge to the procurement and the judgment for CP Nos.D -3760, D - 3996/2024 and D-3868/2024 is limited to the first tender only. They seek relief from this Court limited to the first tender only. They are not before us regarding any grievance concerning the (second) re - tender. This is opposed to the three (3) petitioners, namely, Cosmos Enterprise s in CP No.D -4821/2024 and Abdullah & Brothers and Bilal Contractor in CP No.D -5060/2024, who have raised certain challenges to the (second) re-tender as well. As such,
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these three petitioners seek certain reliefs under both the first (cancelled) tender and the (second) re-tender.
17. We now proceed to decide CP Nos.D -3760/2024, D - 3996/2024 and D-3868/2024 concerning the first (cancelled) tender, from the point of view of (a) maintainability of a challenge to a procurement in writ jurisdiction by the seven (7) bidders in CP Nos.D-3760/2024, D -3996/2024, and D -3868/2024, ( b) the entitlement of relief , if any, in the context of the ad-interim orders passed from time to time in the above three petitions, (c) the impact on the first (cancelled) tender given the continuing participation of the seven (7) bidders in the (second) re -tender, and ( d) the implications on CP Nos.D -3760/2024 and D -3996/2024 of the actions of the three bidders who opted to simultaneously maintain challenge to both…
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