2026 PLP 241 (MLD)

Raja Shakeel Ahmed, J.

The instant writ petition has been filed by the petitioner under Article 86(2) of Gilgit-Baltistan Order, 2018 against the respondents with the following prayers: "It is, therefore, humbly prayed that this Hon'ble Court may graciously be pleased to: i. Set aside the impugned Letter of Acceptance No. CH. PMU.DEV.I(1)/2017/554 dated 20th August, 2024 to the extent of clause (3). ii. Direct the respondents to allow the petitioner JV to provide/submit Performance Security/Guarantee through an insurance company @ 10% of contract amount/bid amount. iii. Restrain the respondents from taking any adverse action against the petitioner JV till final decision of the Writ Petition. iv. Any other remedy which this Hon'ble Court deems fit and proper in the circumstances to meet the ends of justice and equity."

2. The facts leading to file the instant writ petition are that, the respondents vide Notice Inviting Tender No. CM.PMU. Dev. 1(1)/2017 dated 17th May, 2024 invited sealed bids under Single Stage-Two Envelop bidding procedure, from eligible firms/contractors licensed by PEC in Category C2, for construction of Residential Accommodation of Doctors and Paramedical Staff of 50 Bedded Cardiac Hospital at Gilgit. The petitioner JV along with other firms/contractors applied for the said project in accordance with the terms and conditions mentioned in the notice dated 17/05/2024. The respondents vide Final Evaluation Report declared the petitioner JV as 1st lowest. The respondents issued Letter of Acceptance No. CM.PMU.Dev.1(1)/2017/554 dated 20th August, 2024, wherein under clause (3) directed the petitioner JV for provision of performance security/guarantee of an amount equal to 32.593% of bid amount from any schedule bank of Pakistan, which as alleged by the petitioner is against the PPRA rules and bid documents, hence the instant petition for issuance of above prayed directions.

3. After admission of writ petition, copy of petition supplied to the respondents along with notices for submission of their parawise comments, who accordingly submitted the parawise comments along with relevant documents, which were placed on file, wherein they denied the claim of petitioner and intended to advance the argument, hence the case was fixed for arguments.

4. The learned counsel for the petitioner argued that the respondents with mala fide intention mentioned clause 3 in Letter of Acceptance dated 20th August, 2024, wherein directed the petitioner JV to provide 32.593% of bid amount in shape of Performance Security/guarantee in violation of GB PPRA Rules, 2022 and PEC Rules and Regulations. As per clause 42-Performance Guarantee, of GB PPRA Rules, 2022 the performance security shall not exceed ten percent of the contract amount. The learned counsel further argued that the Bidding Documents Volume-1, Clause 10.1 of General Obligations at Page No. 83 provides the procedure of Performance Security, which is further clarified at Page No. 147 of the said document, wherein it is mentioned that the Performance Security shall, at the option of bidder in the form of either (a) bank guarantee from any Scheduled Bank in Pakistan or (b) bank guarantee from a bank located outside Pakistan duly counter-guaranteed by a Scheduled Bank in Pakistan or (c) an insurance company having at least AA rating from PACRA/JCR. He argued that the performance security/guarantee across Pakistan, even all ADPs and PSDPs are typically done through insurance. This approach has also been followed in several mega projects like Shagharthang Hydropower Project, Nagar Expressway Project, Gilgit Sewerage Project and Astore Valley Road Project, all these projects adhere the GB PPRA Rules, PPRA Rules and PEC standards by demanding performance security/guarantee of an amount equal to 10% of contract amount through insurance. The learned counsel for the petitioner referred the Bidding Documents Clause IB.32 and argued that as per said clause bidder shall furnish the performance security/guarantee as per Bid Data Sheer (BDS) and conditions of contract, however the percentage specified in Special Stipulation Clause Condition of Contract of BDS Page 34 Appendix-A to Bid B-1 (Sr. No. Clause 10.1) IS 10% of the contract price. This is further reinforced by the particular conditions of contract indicating clause 10.1 at page 147 of bidding documents, which reiterates that the security not exceed 10% of the contract amount should be at the bidder's option either from (a) Scheduled bank of Pakistan, or (b) a foreign bank duly counter-guaranteed by a scheduled bank of Pakistan, or (c) an insurance company, but the respondents demanded 32.593% from the petitioner, which is against the clause 39 of Rules and Regulation of PPRA. This act of respondents calls intervention of this Hon'ble Court in exercise of its extraordinary constitutional jurisdiction as no alternate remedy is available to the petitioner. Lastly, the learned counsel for the petitioner prayed for acceptance of the instant writ petition as prayed for.

5. On the other hand, the learned AAG assisted by learned counsel for the respondents opposed the contention, and averments of the counsel for petitioner and contended that the petitioner has no cause of action and locus standi against the respondents. The petitioner has no fundamental and vested right to invoke the extraordinary constitutional jurisdiction of this Hon'ble Court as no any fundamental right of petitioner has been infringed by the respondents. The petitioner has filed the instant writ petition in a very hasty manner without exhausting the available competent forums; as such the instant petition is pre-mature. The petitioner was well aware of the terms and conditions mentioned in the bidding documents and if he was aggrieved with the terms and conditions of bidding documents then he had to file an appeal under section 51 of GB PPRA Rules before the Grievance Redressal Committee (GRC) and then before the Procurement Review Committee (PRC), but the petitioner failed to approach the available forums and rushed towards the Court without exhausting available forums for redressal of his grievance. The learned AAG further submitted that the petitioner was bound to furnish performance security/guarantee as per clause IB-32 within a period of 28 days after the receipt of Letter of Acceptance, but the petitioner failed to do so. The respondents issued Letter of Acceptance No. CH.PMU Dev. 1(1)/2017/554 dated 20th August, 2024, but the petitioner instead of provision of performance security/guarantee of an amount equal to 32.593% of bid amount from a scheduled bank of Pakistan, preferred the instant writ petition before this Hon'ble Court after lapse of stipulated period without approaching the GRC and PRC. The learned AAG submitted that the respondents have already constituted the GRC and PRD prior to invitation of Single Stage Two Envelops bidding of the project. The learned AAG further argued that the after lapse of requisite period, the respondents issued Letter of Acceptance No. CH.PMU.Dev. 1(1)/2017/575 dated 23rd October, 2024 to the second lowest bidder M/S RAILCOP-SRS JV, who instead of accepting the letter and provision of performance security/guarantee, demanded to release their Call Deposit Receipt (CDR) with contention that the validity period of 120 days has been lapsed on 24th October, 2024. The learned AAG submitted that on the refusal M/S RAILCOP-SRS JV, the respondents forfeited the CDR/SDR No. 05686969 dated 25/06/2024 amounting to Rs. 11,000,000/- (Eleven Million Rupees only) issued by M/S United Bank Ltd. (UBL) Skardu Branch, under the head of account G10407-Remittances in the Govt. Treasury/National Bank of Pakistan GL:5055 on 27th November, 2024. The learned AAG further contended that the instant petition filed by the petitioner is not maintainable in the eye of law as the respondents have never infringed any fundamental right of petitioner and prayed for dismissal of the instant writ petition.

6. We have heard the arguments advanced the learned counsel for the parties and perused the record of the case minutely made available in case file.

7. The matter in issue relates to procurement process, which was initiated by the respondents in accordance with provisions of GB PPRA Rules, 2022. The petitioner along with other contractors/bidders had participated in the tendering process. The respondents vide Final Evaluation Report declared the petitioner JV as 1st lowest. The respondents issued Letter of Acceptance No. CM. PMU.Dev.1(1)/2017/554 dated 20th August, 2024, wherein under clause (3) directed the petitioner JV for provision of performance security/guarantee of an amount equal to 32.593% of bid amount from any schedule bank of Pakistan, which as alleged by the petitioner is against the PPRA rules and bid documents hence he filed the instant writ petition.

8. It is pertinent to mention here that, GB PPRA Rules, 2022 also provide a complete procedure for redressal of grievances of aggrieved persons having any complaint against the authorities or procuring agency, regarding bidding and tendering process. According to section 51 of GB PPRA, Rules 2022 any bidder feeling aggrieved by any act of procuring agency after the submission of his bid may lodge a written complaint concerning his grievance within seven days of announcement of the technical evaluation report and five days after issuance of final evolution report, and the Grievance Redressal Committee (GRC) is under obligation to investigate and decide upon the complaint within ten days of its receipt. It is further provided under section 52 GB PPRA Rules that, if the GRC fails to arrive at decision within 18 days, or if the bidder is not satisfied with the decision of GRC may lodge an appeal to the PRC within 5 days of the completion of 18 days or decision of the GRC whatever the case may be, and the PRC is bound to dispose of the matter within two weeks from the date of receipt of application by the aggrieved person and the decision of the PRC shall have to be considered as final. In the case in hand, the respondents had issued Letter of Acceptance No. CM.PMU Dev. 1(1)/2017/554 dated 20th August, 2024, wherein under clause (3) directed the performance petitioner JV for of provision security/guarantee of an amount equal to 32.593% of bid amount from any schedule bank of Pakistan, but instead of filling the complaint before the GRC as provided under the above mentioned rules, surprisingly the Petitioner filed the instant writ petition, which is alien to the prescribed rules and remedies available to the petitioner before the forums of GRC and PRC established under the GB PPRA Rules, 2022, as such without availing the remedies provided to him under PPRA rules, the instant writ petition is not competent, which may be filed only after availing the provided proper remedies, that too if law so advised. It is well settled principle of law that "where the law required an act to be done in particular manner it had to be done in that manner alone and such dictate of law could not be compromised by any manner or could be ignored or dispensed with". Therefore in our humble view without filling the grievance petition and appeal before the review committee the instant writ petition filed by the petitioners is departure from mandatory provisions of GB PPRA Rules, 2022 hence not maintainable and merits dismissal.

9. For the foregoing reasons, the instant writ petition bearing W.P. No.328/2024 along with connected Miscellaneous Petitions C.Misc. 1048/2024 and C.Misc. No. 1049/2024 stands dismissed accordingly. File. SA/27/GB/ Petition dismissed.