2007 PLP 1063 (YLR)

ZIA PERWAZ, J.

Petitioner is aggrieved by enhancement of the estimated cost of tender and - for the work of construction of oxidation pond at site Kotri from the initial advertisement estimated cost of Rs.35,90,000 and finally revised to Rs.60,32,

321. The contention of the learned counsel for the petitioner is that the petitioner is a listed 'A' Class contractor of the respondents. In pursuance of advertisement for the afore-said work appearing in daily Jang showing estimated cost of work Rs.35,90,000 the petitioner participated. The tender documents issued for the work did not correspond to the amount of estimated cost as mentioned in the advertisement but the estimated costs were shown as Rs.54,56,

214. The earnest money was also mentioned at Rs.1,36,

405. Subsequently when the tenders were opened on 29-5-2004 a comparative statement of the four competing contractors was prepared. The same is available at Annexure 'B' to the counter-affidavit and the estimated cost is shown at Rs.60,33,221 only. Contention of the learned counsel is that such variation made in open tender by public functionaries vitiates the exercise of open tender in a transparent manner. His contention is that after the revised statement it was required that the works be re-advertised and re-tendered so as to afford an opportunity to the petitioner to participate in the tender according to fresh advertisement. In the absence of such an exercise the entire transaction was liable to be set aside. Mr. Abdul Karim Khan for the respondents has appeared on Court notice. His contentions are that the estimated cost was revised taking into the consideration the changed condition after the publication of advertisement and till the preparation of tender documents. All the participants submitted their bids on the same tender documents which showed the estimated cost of work at Rs.54,56,214 and earnest money Rs.1,36,

405. The participants were subjected to uniform condition. The tender submitted by the petitioner was also filed the tender on the same documents as that of the other bidder and without any reservation or protest. The rate quoted by the four participants are shown in Annexure 'B' to the counter-affidavit filed by respondents Nos.2 and 3 as follows:-- S. No. Name of contractor Quoted Rate Earnest Money Re-marks

1. M/s. Sehar Construction 19.88% above 1,5000 UBL Traders 75000

2. M/s. Moiz Enterprises 21.50% above 1,36,500 UBL

3. M/s. Sonic .Construction Co. 23.0% above 1,40,000 NBP

4. M/s. Mughal Associations 18% above 1,30,000 ABL 6405 ABL It reflects that the petitioner was the second lowest bidder at 19.88% above the estimated cost. The work was awarded to M/s Mughal Associates at 18% above the estimated cost. Under the circumstances the point raised by the learned counsel do not make out case of any discrimination against the present petitioner. All the contractors appear to have been in similar condition. The tender documents reveal that the work is on the basis of estimate prepared on rate of running contracts such contracts are normally subject to variation in revision of drawing as well as at the time of execution. Final payment is always made on the basis of work executed and recorded in the measurement record. A different amount of estimated cost reflected in the comparative statement prepared after receipt of bids does not effect the merits in any manner so as to cause any prejudice to the petitioner or any other contractor. It is merely or comparative statement of the rates quoted by the form bidders prepared after therender had already been opened. Such questions of fact are not required to be determined in exercise of constitutional jurisdiction. Dismissed in limine along with the listed applications. H.B.T./N-5/K Petition refused.