2020 PLP 323 (CLC)

MUHAMMAD JUNAID GHAFFAR, J.

Through instant petition, petitioner has sought the following relief(s):- "a. That this Honourable Court may be pleased to declare that the act of respondents for using illegal and discriminatory method for procurement of Public Works is illegal, unlawful and void in the eyes of law. b. That this Honourable Court may be pleased to direct the respondents to cancel the illegal NIT dated 08-05-2019, being No. TC/G-148/792/of/2019, being illegal and void. c. That this Honourable Court may further be pleased to direct the official respondents to issue fresh NIT for the works mentioned in the impugned NIT, strictly in accordance with law, Rules and regulations, provided for procurement of public works, enabling the petitioner and other eligible contractors to participate in a fair, healthy and transparent procurement proceedings. d. That this Honourable Court may further be pleased to restrain the respondents not to issue the work orders in respect of NIT dated 08-05-2019, being No.TC/G-148/792/of/2019, till the disposal of instant petition. e. That this Honourable Court may be pleased to grant any other equitable relief which this Honourable Court may deem fit and proper in the circumstances of the above case".

2. Brief facts as stated are that the petitioner being a qualified contractor and duly registered with Pakistan Engineering Council ("P.E.C") participated in the Notice Inviting Tenders ("NIT") dated 08.05.2019 and has submitted its technical bids with the Respondents, but at the same time has also impugned certain conditions of NIT and has filed instant petition seeking the above relief(s).

3. Learned Counsel for the petitioner submits that in the impugned NIT sealed bids have been invited under single stage two envelope procedure bidding process which is in violation of Rule 47(2) of the Sindh Public Procurement Rules, 2010, ("2010 Rules") same does not apply to "works" and is only applicable in the procurement of goods and services. He has further argued that the technical proposals at serial No.8(a) & (b) of the NIT requiring the participants to show experience of at least (4) four completed works in previous years in respect of water and sewerage jobs is discriminatory in nature and in violation of the Rules, 2010 and so also against Articles 18 and 25 of the Constitution. Per learned Counsel, petitioner is an approved contractor by P.E.C in category CE-09 for a value of Rs.4000 million and therefore, any further condition in the NIT for performance of previous works is in violation of the Rules including Rule 44 of the 2010 Rules. In view of these submissions, he has prayed for deleting these conditions in the NIT by allowing the instant petition.

4. Learned Assistant A.G. has filed comments and relied upon Notification dated 19.03.2018 and submits that Rule 47(2) already stands amended and the word "works" has been inserted, therefore, this petition is misconceived. Insofar as other objections are concerned, he submits that they are not discriminatory and are applicable on all the bidders, whereas, the petitioner in some earlier award of works had defaulted, therefore, this petition merits no consideration. He has prayed for the dismissal of this petition.

5. We have heard the learned Counsel for the petitioner as well as learned Assistant A.G. and perused the record. It appears that the Petitioner has already obtained the tender forms and has submitted its bids, whereas, during the process of opening of technical bids, instant petition has been filed and on 23.5.2019 an order was passed not to issue the work order to the successful bidder. Insofar as the objection in respect of Rule 47(2) is concerned, after being confronted with the amendment through Notification dated 19.03.2018, learned Counsel for the petitioner has not pressed this objection. As to the other objections regarding conditions of previous works and experience, it may be observed that it is a prerogative of the procuring agency to invite tenders and also require the participants to have previous experience of similar nature. On query from the respondent's representative, we have been informed that in all (9) nine bidders have participated in the proceedings and except the petitioner, who has also filed its bids, none of the other bidders have raised any objection to this effect. The argument that petitioner is duly registered with P.E.C under category CE-09 does not appear to be convincing, inasmuch as it is only issuance of a license by P.E.C and is supposed to be a pre-requisite for any contractor to be qualified for participation in public or even private tenders. This is in fact the minimum requirement which a contractor is required to fulfil. It does not certifies the ability of the bidder nor is a certification in respect of the competence and guaranteed satisfactory performance of any works to be performed by a contractor for a procuring agency. If the procuring agency is of the view that some previous experience of certain works is necessary, then incorporation of such condition in the tender cannot be held to be discriminatory as it applies to all the bidders and in view of the fact that already nine bidders have participated, such argument appears to be misconceived. It is neither discriminatory in nature, nor is a restraint on trade as contended by placing reliance on Articles 18 and 25 of the Constitution of Pakistan, 1973. Once it has been made applicable to all, then it cannot be set-aside on a sole ground that it does not entitles a new contractor to enter into the bidding process. This argument would have sufficed, at the most, if there weren't any other bidder's except one or two. However, this is not the case here, as there are nine (9) bidders in the run; hence, it cannot be sustained on this ground alone.

6. In view of the foregoing facts and circumstances of the case, we are of the view that no case for indulgence is made out and therefore by means of a short order passed in the earlier part of the day instant petition was dismissed and these are the reasons in support thereof. MH/A-120/Sindh Petition dismissed.