2012 PLP 1128 (CLD)

SYED MANSOOR ALI SHAH, J.

Through this order, the instant petition, as well as, Writ Petition No.2399 of 2012 shall be decided as common questions of law and facts arise in both these cases.

2. A dispute arose between the parties regarding the process adopted by respondent LDA in finalizing the tender for procurement of catering services for LDA Community Centre at Muslim Town, Wahdat Road, Lahore. It is contended by the petitioners that TORs framed for the procurement of catering services by LDA were not given effect to in carrying out the evaluation of the bidders under the tender and therefore the final award of tender in favour of Respondent No.5 is without any transparent objective criteria.

3. Learned counsel for respondent LDA has failed to give any plausible explanation why the Terms of Reference (TORs) "For Hiring of Catering Services for LDA's Community Centre, Muslim Town, Wahdat Road, Lahore" prepared by Secretary/Deputy Director (C&I), LDA were not fully complied with. The documents placed on the record by the respondent LDA do not inspire confidence and do not meet the requirement of the above-mentioned TORs. More importantly, during the course of arguments learned counsel for Respondent LDA was asked to satisfy this Court whether Punjab Procurement Rules, 2009 promulgated under the Punjab Procurement Regulatory Authority Act, 2009 were applicable to the present tender. Learned counsel for LDA and Respondent No. 5 failed to give any convincing answer.

4. Perusal of the Punjab Procurement Regulatory Authority Act, 2009 ("ACT") read with Punjab Procurement Rules 2009 ("RULES") show that LDA squarely falls within the definition of "Procuring Agency" as defined in section 2(1) of the Act, while the catering services fall under the definition of "Public Procurement" under section 2(n) of the Act. The purpose of the Act is to improve governance, management, transparency, accountability and quality of public procurement and it is the function of the Regulatory Authority constituted under the Act to monitor the implementation of the said Act, as well as, the Rules framed under the said Act. Rule 3 of the Rules clearly provides that the Rules are applicable to all procurements made by all the procuring agencies of the Government of the Punjab. Rule 4 states that procuring agencies while engaging in procurements, shall ensure that the procurements are conducted in a fair and transparent manner so that it brings value for money to the agency and ensures that the procurement process is efficient and economical. Rule 51 provides that provisions of these Rules shall have effect notwithstanding anything to the contrary contained in any other rules concerning public procurements. The Rules also provide for Procurement Planning, Procurement Advertisement, Qualification and Disqualification of Suppliers and Contractors, Methods of Procurement and finally provide a forum for Redressal of Grievance and Settlement of Disputes between the parties.

5. Iftikhar Muhammad Chaudhry, C.J. speaking for the Supreme Court of Pakistan in Suo Motu Case No.5 (PLD 2010 Supreme Court 731) held at page 742:-- "Here we may observe that it is duty of the Court to ensure that the Public Procurement Regulatory Authority Ordinance, 2002 read with the Public Procurement Rules, 2004 are adhered to strictly to exhibit transparency." Reliance is also placed with advantage on a Division Bench judgment of this Court in Messrs Malik Mushtaq Goods Transport Co., Lahore v. Federation of Pakistan through Secretary Railways, Islamabad and 9 others (PLD 2010 Lahore 289).

6. It is evident from the record that the impugned Tender has been advertised bypassing the Rules resulting in mis-procurement as provided under Rule 50 of the Rules. No reason has been furnished in the parawise comments filed by the said Authority why these Rules were not complied with inviting bids under the impugned Tender for catering services. It is also interesting to note that according to the preliminary objections taken in the parawise comments of the respondent LDA, it is categorically stated that LDA does not fall within the purview of the Act or Rules, however, in paragraph 4 of the parawise comments, it has been repeatedly mentioned that the bids were processed under the Act by respondent LDA. It is disappointing to note that while the learned counsel for respondent LDA stated that the Act or the Rules are not applicable to LDA, the parawise comments take a contrary position in violation of the facts on the record.

7. The impugned tender and the subsequent proceedings thereunder being violative of the Rules have resulted in mis-procurement and are, therefore, set aside. For the same reasons the contract awarded to respondent No.5 which also lacks transparency is hereby cancelled. Reliance is placed on Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) and Messrs Ramna Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others (2004 SCMR 1274). Respondent LDA is however, free to re-advertise a fresh tender strictly in accordance with Punjab Procurement Rules, 2009.

8. Office is directed to dispatch a copy of this judgment to the Advocate-General, Punjab, as well as, to Director-General LDA to ensure that all future public procurements are made strictly in accordance with Punjab Procurement Rules, 2009. Learned Advocate-General, Punjab will also circulate this order amongst all the procuring agencies of the Government of the Punjab to ensure strict compliance of the aforementioned Rules in order to ensure good governance and transparency.

9. Direction is also issued to the Punjab Procurement Regulatory Authority constituted under the Act to actively perform its functions under section 5 of the Act so that transparency is ensured in Public Procurement across the Province.

10. These petitions are allowed subject to costs of Rs.25,000 per petition i.e., (Writ Petition No.1805 of 2012 and Writ Petition No.2399 of 2012) which shall be paid by respondent LDA. The costs shall be deposited with any charitable civil society organization in Punjab certified by the Pakistan Centre of Philanthropy (PCP) (www.pcp.org.pk) within one month from the receipt of the judgment. Reliance is placed on Kawas B. Aga and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others, (PLD 2010 Karachi 182), The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others, (1998 SCMR 2386), Province of Sindh through Secretary, Home Department and others v. Roshan Din and others, (PLD 2008 SC 132), Inayatullah v. Sh. Muhammad Yousaf and 19 others, (1997 SCMR 1020), Mst. Afsana v. District Police Officer, (Operation), Khairpur and 5 others, (2007 YLR 1618) and M.D. Tahir, Advocate v. Federal Government and others, (PLD 1999 Lahore 409). Copy of the deposit slip shall be placed on the record of this file by respondent LDA latest by 15th March, 2012 and thereafter this file shall be put up before this Court on the administrative side for information or necessary orders, as the case may be. M.H./M-81/L Petition allowed.