2025 PLP 1142 (CLC)

MUHAMMAD AAMIR NAWAZ RANA, J.

The Executive Engineer-1, Communication, Works, Physical Planning and Housing ( CWPP&H ) Department, Killa Saifullah/respondent No.3 had invited bids from the eligible Contractors for the Project Construction of Black Top Road, Madrasah Molvi Fazaldad to Kanroki Dab Ghibzai Dolatzai [Molvi Afzal] PSDP No.1408 (2024- 25) . It is the case of petitioner that he along with other Contractors participated in the bidding process and was the only qualified Contractor for the subject Project, and being the only qualified Contractor, he was waiting for issuance of Letter of Acceptance and Work Order but subsequently he came to know that certain Contractors had approached the Grievance Redressal Committee ( GRC ) and had challenged their disqualification by filing Grievance Petitions, and the GRC, in its meeting held on 08.11.2024, had decided the Grievance Petitions of the aggrieved Contractors and had cancelled the bid process and had directed the Procurement Committee to re-tender the subject Project. The petitioner, through this Constitution Petition, has impugned the decision of GRC dated 08.11.2024 and has sought the following reliefs: A. Declare that the Impugned GRC Decision dated 8th of November, 2024 whereby the procurement for Construction of Black Top Road, Madrasah Molvi Fazaldad to Kanroki Dab Ghibzai Dolatzai [Molvi Afzal] PSDP No. 1408 (2024-25) having TSE No: 242508523503 has been cancelled, is illegal and without any legal force. B. Direct Respondents Nos. 2, 3 and 4 that the Procurement Process for Construction of Black Top Road, Madrasah Molvi Fazaldad to Kanroki Dab Ghibzai Dolatzai [Molvi Afzal] PSDP No. 1408 (2024-25) having TSE No: 242508523503 is still in field. C. Direct Respondent No. 3 to issue Letter of Acceptance and Work Order to the Petitioner for the Construction of Black Top Road, Madrasah Molvi Fazaldad to Kanroki Dab Ghibzai Dolatzai [Molvi Afzal] PSDP No. 1408 (2024-25) having TSE No: 242508523503. D. Grant Cost of Petition. E. Grant any other relief that this Honourable Court deems fit considering the circumstances of the matter .

2. Learned counsel for the petitioner mainly contended that since, at the relevant time, when the bids were invited, the Contractors, who had been disqualified, did not challenge the criteria set-out by the Procuring Agency, therefore, after participating in the bidding process, the issue of enhanced criteria cannot be reopened either by the Contractors or to that matter by the GRC. Per learned counsel, since the petitioner was the only qualified Contractor, therefore, a right had been created in his favour and the subject Project had to be awarded in his favour. Arguments heard. Relevant record perused.

3. It is an admitted feature of the case that the Executive Engineer-1, CWPP&H Department, Killa Saifullah had invited bids for the Project Construction of Black Top Road, Madrasah Molvi Fazaldad to Kanroki Dab Ghibzai Dolatzai . A number of Contractors had participated in the bidding process but all were disqualified on different grounds except the petitioner, who was the only qualified Contractor. The aggrieved Contractors, whose bids were declared non responsive, had filed Grievance Applications before the GRC, which were considered by the GRC in its meeting held on 08.11.2024 and the following decision was made by the GRC: Decision of the grievance Committee: The GRC Scrutinized TOR / documents pertaining to eligibility criteria of the contractor, it was found that:- i. The Procurement Committee demanded three (3) assignment of specific completed works having 75% of the estimated cost which is too much in numbers and percentage. PEC requirement is 70%. ii. The three (3) general experience works with 75% of the estimated cost is also tough ultimately restrict many contractors from participation in the bid. Regarding two above observations, the GRC decided to cancel the bid and procurement Committee should go for re-tender for the sack of fair play, maximum participation in bid and interest of public works .

4. Rule 56 of the Balochistan Public Procurement Rules, 2014 ( BPPR, 2014 ) provides a complete mechanism for redressal of grievance of any aggrieved party. For ready reference, Rule 56 of the BPPR, 2014 is reproduced:

56. Mechanism for Redressal of Grievances. (1) The Procuring Agency shall constitute a committee comprising odd number of persons, with appropriate powers and authorizations, to address the complaints of bidders that may occur prior to the entry into force of the procurement contract. (1-a) The Committee shall consist of a chairman, head of the procuring agency or an officer of the procuring agency, at-least one rank senior to the head of the procurement committee and odd number of members at least one third of members are from outside the procuring agency. Provided that none of the members on the committee were members on the procurement committee. (2) Any bidder being aggrieved by any act or decision of the Procuring Agency after the issuance of Notice Inviting Tender may lodge a written complaint. (3) The complaint redressal committee upon receiving a complaint from an aggrieved bidder may, if satisfied (a) reject the complaint considering it to have been made on frivolous grounds; (b) prohibit the Procurement Committee from acting or deciding in a manner, inconsistent with these rules and regulations; (c) annul in whole or in part, any unauthorized act or decision of the Procurement Committee; (d) recommend to the Head of Department that the case may be declared a mis-procurement if material violation of the Act, rules, regulations, orders, instructions or any other law relating to public procurement, has been established; and (e) reverse any decision of the Procurement Committee or substitute its own decision for such a decision: Provided that the complaint redressal committee shall not make any decision to award the contract. (4) The Complaint Redressal Committee shall announce its decision within fifteen (15) days and intimate the same to the bidder and the Authority within three (03) working days by Procuring Agency. (5) The Procuring Agency shall award the contract after the decision of the complaint redressal committee. (6) Mere fact of lodging of a complaint shall not warrant suspension of the procurement proceedings. (7) Any bidder not satisfied with the decision of the Committee of the procuring Agency may lodge an appeal [Procurement Review Committee].

5. The BPPR, 2014 has been enacted to ensure transparency and fairness in the bidding process in a competitive environment free from discrimination, favoritism and malpractices. It has been stipulated in the BPPR, 2014 that no Procuring Agency shall introduce any condition which is discriminatory in nature and which provides undue advantage to any bidder through introduction of any condition which is contrary to the normal practice of that business and nature of Contract. In this regard, Rule 37 and Rule 38 of the BPPR, 2014 are relevant, which are reproduced:

37. Discriminatory and difficult conditions. Save as otherwise provided, no Procuring Agency shall introduce any condition which discriminates amongst bidders. In ascertaining the discriminatory nature of any condition reference shall be made to the ordinary practices of that trade, manufacturing, construction business or service to which that particular procurement is related.

38. Cancellation of Bidding Process. (1) A Procuring Agency may cancel the bidding process at any time prior to the acceptance of a bid or proposal. (2) The Procuring Agency shall incur no liability towards the bidders, solely by virtue of its invoking sub-rule (1). (3) Intimation of the cancellation of bidding process shall be given promptly to all bidders and bid security shall be returned along with such intimation. (4) The Procuring Agency shall, upon request by any of the bidders, communicate to such bidder, grounds for the cancellation of bidding process, but is not required to justify such grounds .

6. The GRC comprising upon the senior officers of CWPP&H Department, Government of Balochistan, headed by the Chief Engineer (Roads), C&W Department Quetta Zone, after considering all the attending circumstances, has rightly concluded that the demand of Procurement Committee to submit three assignments of specific completed works having 75% of the estimated cost is too much high considering the requirement and criteria set-out by the Pakistan Engineering Council ( PEC ) which is 70% of the estimated cost.

7. The Procuring Agency has not provided any justification for the increase of 5% of the estimated cost of specific completed works. On our query, the Executive Engineer-1, CWPP&H Department, Killa Saifullah stated that it the discretion of the Procuring Agency to formulate criteria. When we asked the rationale behind this discrepancy considering the Guidelines provided by the PEC and the Executive Committee of the National Economic Council ( ECNEC ), the Executive Engineer-1, CWPP&H Department, Killa Saifullah could not furnish any legal justification.

8. The discretion of Procuring Agency to formulate criteria is not unfettered rather a structured formula for exercising such discretion has to be adopted otherwise there would be a number of questions regarding transparency, fairness and equity upon the bidding process. The Honourable Supreme Court of Pakistan in the case titled as Abdul Wahab v. Secretary, Government of Balochistan1, while dealing with the subject of structuring of discretion has observed as follows:

. Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power to exercise discretion would not authorize such Authorities to act arbitrarily, discriminately and mala fide. They have to act without any ulterior motive.

9. To be treated equally in accordance with law is the fundamental right guaranteed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In such backdrop and in view of the judgment passed by the Honourable Supreme Court of Pakistan (supra), the statement given by the Executive Engineer-1, CWPP&H Department, Killa Saifullah that the increase of 5% of the estimated cost of specific completed works is the discretion of the Procuring Agency is not tenable in the eyes of law particularly when already PEC has provided certain Guidelines, which have been highlighted by the GRC in the impugned decision dated 08.11.2024.

10. Despite thorough scrutiny of the complete record, no illegality or irregularity is found in the impugned decision dated 08.11.2024 of the GRC which could warrant interference by this Court in its constitutional jurisdiction. For the foregoing reasons, the petition, being without any merit, is dismissed. SA/39/Bal Petition dismissed. 1 2009 SCMR 1354 SUPREME-COURT.