P L D 2026 Federal Constitutional Court 94 (PLP)
MANAGING DIRECTOR, FRONTIER HIGHWAY AUTHORITY and others — Petitioners Versus Messrs BROTHERS CONSTRUCTIONS AND BUILDERS (BCB) through Managing Partner — Respondent
| Citation | P L D 2026 Federal Constitutional Court 94 (PLP) |
| Forum / Court | High Court |
| Bench Members | Amin-ud-Din Khan, CJ, Ali Baqar Najafi and Syed Arshad Hussain Shah, JJ |
| Parties | MANAGING DIRECTOR, FRONTIER HIGHWAY AUTHORITY and others — Petitioners Versus Messrs BROTHERS CONSTRUCTIONS AND BUILDERS (BCB) through Managing Partner — Respondent |
| Primary Law | Public Procurement Rules, 2004 |
Q1: What are the key laws and sections cited in P L D 2026 Federal Constitutional Court 94 (PLP)?
This judgment primarily cites: Public Procurement Rules, 2004 as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2026 Federal Constitutional Court 94 (PLP)?
The case was heard and decided by the High Court bench comprising: Amin-ud-Din Khan, CJ, Ali Baqar Najafi and Syed Arshad Hussain Shah, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2026 Federal Constitutional Court 94 (PLP) (MANAGING DIRECTOR, FRONTIER HIGHWAY AUTHORITY and others — Petitioners Versus Messrs BROTHERS CONSTRUCTIONS AND BUILDERS (BCB) through Managing Partner — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Khalilullah Khalil, Advocate Supreme Court with Abid Shafi, Director (Law) for Petitioners.
- Mian Abdul Rauf, Advocate Supreme Court for Respondent.
Headnotes / Summary
R.25
Constitution of Pakistan, Art.175F(c)
Additional security, demand of
Demand based on undisclosed engineer's estimate
Transparency and fairness
Change in essential terms after advertisement
Effect
Advertisement, scope and significance of
Brief facts were that the petitioners invited tenders in which the respondent emerged successful and deposited earnest money on the advertised estimated cost; later, the petitioners demanded 8% additional security on the basis of an undisclosed engineer's estimate, and upon refusal, rejected the bid, forfeited the earnest money, and debarred the respondent for six months; the respondent challenged this action through a writ petition, which was allowed by the High Court
The issue before the Federal Constitutional Court was "whether additional security could lawfully be imposed on the basis of a benchmark not disclosed in the tender notice?"
Held: Petitioner's approach of computingthe 2% earnest money on the basis of the estimated cost expresslydisclosed in the advertisement, while switching to an undisclosedengineer estimate later on, was legally untenable, as it offended therequirements of transparency, consistency, and equal treatment inpublic procurement
Any midstreamdeparture from the stipulated tender terms, without prior public notice,and in the absence of legal/cogent justification, was inherently arbitrary,and undermined the principle of equal opportunity among bidders
Theintroduction of an additional security requirement by reference to abenchmark not disclosed in the advertisement, appeared to be patentlyarbitrary and incompatible with the requirements of transparency andfairness in the facts and circumstances of the case
No interference was required in the impugned judgment passed by the High Court
Leave was refused and the petition was dismissed, in circumstances.
Judgment & Decree
SYED ARSHAD HUSSAIN SHAH, J.
Succinctly facts of the case are that the petitioners advertised Notice Inviting Tenders (NIT) on 16.5.2011, inviting tenders from pre-qualified contractors for five packages on 26.5.2011. Respondent No.1 (hereinafter referred to as the bidder ), participated in the process of tenders and became successful for Package-I for improvement and widening of D.I.Khan-Chashma Road Phase-I in Package-I (8 km) with estimated cost of Rs.138.65 million. His tender was 7% below the Composite Schedule of Rates (CSR) 2009, therefore, he deposited earnest money amounting to Rs.2.773 million @ 2% of the estimated cost. The petitioners demanded 8% additional security on the basis of engineer estimate of Rs.143.563 million, as, according to the petitioners, the bid of the bidder was 22.5% below the engineer estimate, which the bidder refused to deposit. Resultantly, the bid was rejected, earnest money was forfeited and the bidder was also debarred from participating in bids for a period of six months vide Notification dated 18.7.2011.
2. The bidder challenged the Notification in the Writ Petition before the Peshawar High Court, judgement whereof has been assailed in the instant C.P.L.A. The High Court allowed the Writ Petition mainly on the ground that the petitioners did not mention the engineer estimate in the NIT, therefore, the bidder could not be burdened with additional security @ 8% on the basis of engineer estimate.
3. We have heard the learned counsel for the petitioners as well as the learned counsel for the bidder, who has appeared on caveat. Learned counsel for the petitioners argued that the High Court failed to appreciate the facts in the true perspective, contending that the bid of the bidder was 22.5% below the engineer s estimate and, therefore, under Clause No.3 of the NIT, the bidder was obliged to deposit 8% additional security. However, when confronted, learned counsel candidly conceded that the engineer estimate was not mentioned in the NIT. If the engineer estimate was available as early as April 2011, the reason for its non-incorporation in the advertisement dated 16.05.2011 remains unexplained. Learned counsel for the petitioner was also unable to offer any explanation in this regard. The petitioner s approach of computing the 2% earnest money on the basis of the estimated cost expressly disclosed in the advertisement, while switching to an undisclosed engineer estimate later on, is legally untenable, as it offends the requirements of transparency, consistency, and equal treatment in public procurement.
4. The Supreme Court of Pakistan in Habibullah Energy Limited and another v. WAPDA through Chairman (PLD 2014 SC 47) has categorically held that, "an advertisement is universally accepted as a condition precedent for ensuring a free, fair, open, competitive and transparent process for transfer of public assets or rights therein". Similarly, in Ishaq Khan Khakwani and another v. Railway Board through Chairman and others (PLD 2019 SC 602), the Supreme Court of Pakistan observed that, "the bidding process must conform to the settled principles of transparency, fairness, and due process", and further that, "a change in one of the essential terms of the project specifically mentioned in the advertisements could not have been made without a fresh advertisement enabling all potential bidders to participate in the process", particularly where, "no compelling arguments have been put forward by the respondents for non-issuance of such advertisement". This normative standard also finds support in the decision of the Supreme Court of India in Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others (AIR 2000 SC 2272), where it was held that, "there should be no arbitrariness in the matter of award of contract and all participants in the tender process should be treated alike", and that modifying the applicable basis after bidding has commenced is, "like changing the rules of the game after it had begun". Any midstream departure from the stipulated tender terms, without prior public notice, and in the absence of legal/cogent justification, is inherently arbitrary, and undermines the principle of equal opportunity among bidders. The introduction of an additional security requirement by reference to a benchmark not disclosed in the advertisement, appears to be patently arbitrary and incompatible with the requirements of transparency and fairness in the facts and circumstances of the case.
5. In view of the foregoing, we find no legal infirmity in the judgment of the High Court. The conclusion drawn by the High Court is consistent with the applicable law and the governing principles of public procurement. No ground is made out for interference. Accordingly leave is refused and the petition is dismissed. UN/11/FCC Petition dismissed.