2003 PLP 646 (MLD)

(ii) project organization was inadequate; (iii) details of 2 x 50% gas compressors were not provided despite repeated reminder (which information was subsequently provided on 16‑5‑2002); (iv) price quoted for the 2 x 50% compressors package was unrealistically law, compared with direct quotation received from the vendor; (v) proposal of Petrosin Ravi Industries ("PRIL"), an affiliate of the petitioner) for construction of the plant at their workshop was not acceptable due to inappropriate/deficient staffing and due to financial losses of the last 4 years suffered by PRIL; and (vi) for provided misleading and 'incomplete information on various matters solicited in the Bid documents/ITB; (vii) misstatements pertaining to its status under the Pakistan Engineering Council Act, 1975 (Act No.V of 1976) ("PEC ACT"); (viii) misstatements regarding its Project Management Team; (ix) incomplete/incorrect information pertaining to its technical capability specifically in relation to the gas compressors; (x) in the questionnaire submitted for the purpose of pre qualification, petitioner, at the outset stated that it was not involved in litigation; it was however, discovered subsequently by respondent No.2 whilst evaluating the bid that the petitioner was involved in a number of disputes with Oil and Gas Development Company Ltd. which were pending resolution in the meetings. Also petitioner denied the factum of above litigation. This incorrect/conflicting statements about its pending litigation. It has been specifically stated that the bidder who is ultimately held to be technically deficient cannot be considered as being eligible by merely quoting a lower price .as price factor can only be co‑related to a fully complaint bid in which the petitioner was found wanting. In contrast of above, it is stated, that the information supplied by the consortium of respondents Nos.3 and 4 was found in compliance with the requirements of invitation to Bid (ITB) and working interest owners (WIOs). The contract was accordingly awarded to the said consortium after evaluating the bids. It is stated that the bidding process was conducted in a highly transparent manner with detailed and comprehensive evaluation of technical aspect of bids, petitioner fully participated in the bidding process and was given' every opportunity to offer most competitive bids, no illegality or violation of law or natural justice took place and that the bid of the petitioner was never. accepted hence no vested right accrued in favour of the petitioner in relation to the award of the contract. Also, no reason or justification was required to be set out under the letter dated 1‑6‑2001 sent to the petitioner the same being formal letter in the standard format conveying the non acceptance of the petitioner's bids as per the ITB. Respondents Nos.3 and 4 in their parawise comments have stated that their bid for the tender for the project was in full conformity and was acceptable being responsive to the tender documents. Letter of intent dated 24‑5‑2002 is stated to have been issued to them by respondent No.2 so also it is stated that the contract stood executed between them and respondent No.2 on 28‑5‑2002. Illegality and favour by respondent No.2 and its employees and mala fide in the execution of the contract has been denied and it is stated that the fact of asking the petitioner to bid for the tender for the project under the tender document could not be treated as a commitment on behalf of respondent No.2 to award the contract and that there was no obligation on the part of person who issued tender notice to accept the lowest tender. It is further stated that there is no agreement between the petitioner and respondent N0.2 regarding the project and that the offer of petitioner without any acceptance by respondent No.2 did not create a vested right in favour of the petitioner in respect of the contract so also it could not be said that there was any ground of legitimate expectation available to it. Learned counsel for the petitioner, during the course of his arguments, reiterated the facts of petitioner's case as are briefly stated in the first part of this judgment. He further argued that since the petitioner quoted the lowest bid and respondent No. 2. had accepted the terms and conditions of pre‑qualification of the petitioner, the said respondent was under obligation so the petitioner was entitled to the award of the contract in question which was awarded to a consortium of respondents Nos. 3 and 4 under the influence of Dawood family, the Directors of respondent No.3 a component part of said consortium. He submitted that the petitioners who had legitimate expectation, was not afforded equal opportunity in bidding process and the act of awarding the contract to respondents Nos.3 and 4 consortium is mala fide, illegal and void ab initio. He placed reliance on case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries reported in 1993 SCMR 2158. On the other hand learned counsel for the respondent No.2, raised a preliminary objection by saying, firstly that the petitioner being a foreign operator wishing to perform an operation of engineering in Pakistan was required to obtain. an appropriate licence from the Pakistan Engineering Council within the terms of Bye‑law No.7 of the Construction and Operation of Engineering Work Bye‑laws, 1987 and since the petitioner was not registered with the Pakistan Engineering Council it was not entitled to the award of contract in question; secondly, it vas urged‑ that all construction, management supervision of operation of engineering could be entrusted only to the constructor or, operator which were licensed as such by the Council and that no engineering work would be constructed accept by a constructor, or operated by an operator licensed within the terms of Bye-law No.3(1) of the aforementioned Bye laws. Also, learned counsel referred to the deficiencies and drawbacks of the petitioner as are stated in the foregoing paras. and said that three were valid reasons for non‑acceptance of bid of the petitioner who ought not to have expected for award of contract in view of such deficiencies reflective of its very weak position. He, next, argued that the respondents Nos.3 and 4 who were rightly, legally and lawfully awarded the contract, had already commenced and completed work over 30% by huge investment as such the cancellation or revocation of contract at this stage would be to the great detriment to the respondents. Learned counsel .in his arguments highlighted that a bid is only in the nature of an offer and unless it is accepted no vested right is created in favour of a bidder hence the petitioner whose bid was not accepted could not maintain this petition. He placed reliance on case of Ch. Muhammad Younus v. The Islamic Republic of Pakistan through The Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others reported in PLD 1972 Lahore

874. He argued that offering of lower bid also could not be the sole criteria to award contract to a bidder making such bid. He placed reliance on the case of Fawad and Fareen Enterprise Ltd. v. Director of Industries, Government of Sindh, Karachi and others (PLD 1983 Kar. 340). Lastly, he argued that the questions raised 'in this petition by the petitioner were disputed one which could not be settled in this Constitutional petition for which the proper remedy is before a Court of competent civil jurisdiction. He placed reliance on case of Muhammad Younus Khan and 12 others v. Government of N.‑W.F.P. through Secretary, Forest and Agriculture, Peshawar and others reported in 1993 SCMR

618. Learned counsel for respondents Nos.3 and 4 adopted the above arguments. Learned D.A.‑G. submitted that in case the petitioner feels that a loss has occurred to it on account of non‑awarding of the contract that can be calculated in terms of money, for which, he urged that proper remedy is in the shape of damages before Civil Court of competent jurisdiction. From above discussion the case of the petitioner as it emerges out is that the petitioner claims to be a qualified contractor, made a bid lower than respondents Nos.3 and 4 for award of the contract in question hence was entitled to the award of said contract but was deprived and its bid bonds were returned without assigning any reason and the contract was awarded to the said consortium illegally and unlawfully. As against that respondents No.2 has highlighted petitioner's deficiencies and drawbacks for non‑acceptance its bid and it is stated that in view of such a weaker position the petitioner ought not to have expected the award of contract. Respondents Nos.3 and 4 have stated that there was no agreement between the petitioner and respondent No.2 regarding the project, no right to the award of contract was created in favour of the petitioner, as its offer was not accepted for valid reasons which were sufficient to dispel the expectation, if any, on the part of the petitioner. In support of their respective cases the parties have brought forth voluminous material, on record. Without going through the controversial facts so brought forth, what we feel it necessary to see whether the petitioner acquired any vested right by simply making a bid so also to see whether in view of the lower bid quoted by the petitioner as is alleged by it, respondent No.2 was under any legal obligation to award contract in question to the petitioner. It is well‑settled that making of a bid is simply tantamount to making an offer and unless it is accepted and communicated it does not mature into a valid contract. In this view, we are fortified by the dictum laid down in case of Ch. Muhammad Younus (supra) which is reproduced as follows:‑‑ ".The tender in law, is only an offer for the purchase of the property and if the tender of the person even if is highest is not accepted cannot make a grievance of fact. The offer for sale of the property does not give right to the offer for its purchase. A tender only when accepted constitutes a binding contract and unless the contract comes into the existence the mutual right and obligation do not arise. " Note: Underlining is ours. Regarding the claim of the petitioner that by quoting lower bid it became entitled to the award of contract, it may be stated that respondent No.2 has, in specific terms, stated that the bidder who is ultimately held to be technically deficient cannot be considered eligible by merely quoting a lower price as the price factor can only be co‑related to a fully complaint bidder in which the petitioner was found wanting. A number of deficiencies and drawbacks of the petitioner have been highlighted by respondent No.2 as are found in the foregoing paras. Be that as it may, in our view, by simply making a lower bid no legal right is acquired by a bidder for the simple reason that other factor like capability to fulfil other conditions to complete the contracted project also need to be kept in view. Beside the above, it is also to be seen whether it has been made obligatory or it is discretionary to award contract in question. In this connection, it will be advantageous to reproduce as follows paragraph No. 7 of letter dated 7‑12‑2000 of respondent No. 2 and paragraph 13.1. The abovesaid letter is a document whereby the petitioner was invited to bid. Both these documents through their above said paragraphs paras. I reflect that it is discretionary with the respondent No.2 to accept or reject a bid:‑‑ "The company reserves the right to accept or reject any or all bids received under this tender without assigning any reason, whatsoever. " 13.1 COMPANY'S RIGHT TO ACCEPT ANY BID AND TO REJECT ANY OR ALL BIDS. "The company reserves the right to accept or reject any bid or part of a bid and to annul the bidding process and reject all bids at any time prior to award of Contract, without thereby incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for the company's action." Thus, from the above, it is quite clear that the awarding of the contract was purely discretionary and the company reserved its right to accept or reject any or all bids without assigning any reason whatsoever. Notwithstanding, it will not be out of place to mention herein that numerous reasons have been assigned and enough has been said that the petitioner was found wanting in many aspects and was therefore, not awarded the contract. Be that as it may, we have already expressed our view in the foregoing para. that by simply making lower bid no legal right is acquired by a bidder and in this view we are fortified by the case of Fawad and Fareen Enterprises Ltd. v. Director of Industries, Government of Sindh and others (PLD 1983 Kar. 340) decided by a., Division Bench of this Court, holding that disputed questions of fact, as were involved in that case, certainly not falling appropriate within the writ jurisdiction of this Court as held by the Honourable Supreme Court in case of Landale and Morgan v. Chairman, Jute Board (1970 SCMR 853), observed that:‑‑ "On the facts of the case we are also of the opinion that by giving the lowest bid which was not accepted, the petitioners acquired no legal right to the grant of the contract in view of clause 9 of the 'Invitation of Tender' reproduced above, under which right was expressly reserved by the authorities not to accept the lowest or any other tender. The petitioners thus acquired no legal or vested right as laid down in the case of Rehmat Ali and others v. The Revenue Board, West Pakistan, Lahore 1973 SCMR 342 and Muhammad Din & Sons v. The Province of West Pakistan PLD 1969 Lah. 823" Lastly, coming back to the other question raised by learned counsel for the petitioner that the petitioner who had legitimate expectation was not afforded equal opportunity in bidding process and the act of awarding the contract to respondents Nos.3 and 4 consortium was illegal and void ab initio it may be stated that, we have already observed in, the foregoing paras. that the parties in support of their respective case, have placed on record voluminous material, which, it may further be stated consists of documents running into about 1000 pages reflecting disputed and complicated questions of facts except the ones which could be adverted to and discussed in the foregoing paras. All such complicated questions including the one raised as aforementioned by learned counsel for the petitioner need a detailed and threadbare enquiry, which is not possible in this petition. In this situation of matter case of the Food Corporation of India (supra) cited by learned counsel for the petitioner is of no assistance to the petitioner. Upshot of the above discussion is that this petition is misconceived and is not maintainable. It is accordingly dismissed in limine alongwith listed applications. H.B.T./P‑59/K Petition dismissed