2018 PLP 1371 (YLR)

AYESHA A. MALIK, J.

Through this petition, the Petitioners have laid challenge to illegal method of procurement in a non-competitive manner undertaken by the Respondent Punjab Curriculum and Textbook Board, Lahore ("PCTB") by allocation of work order for printing of textbooks.

2. The basic facts of the case are that the Petitioners are all publishers engaged in the business of publishing and printing textbooks and are duly registered with the Respondent PCTB. For the purposes of printing and publishing textbooks for government schools, the Respondents invited tenders. For the purposes of private schools the publishing and printing work is allocated among the publishers and printers on the basis of their strength and capacity. Learned counsel for the Petitioners argued that this is an arbitrary practice and that the Respondents are obligated to follow the Punjab Procurement Regulatory Authority Act, 2009 ("Act") and the Punjab "Procurement Rules, 2014 ("Rules"). Learned counsel further argued that the Respondents are procuring agents who are procuring services from the Petitioners for the purposes of printing and publishing textbooks for private schools, hence they are obligated to follow the procedure laid down in the Act and the Rules. Learned counsel further argued that this is a discriminatory practice which is against the nouns of fairness and transparency and defies the objective of public procurement to bring value for money.

3. Report and para wise comments have been filed by Respondents Nos. 2 and

3. Learned counsel for the stated Respondents submits that the Petitioner are all registered publishers with the stated Respondents. They entered into contracts with the Respondents for the purposes of printing and publishing textbooks for private schools. Learned counsel argued that the price and the quantum of textbooks that are to be printed and published is negotiated with the Petitioners and as such there is no arbitrary practice involved. Learned counsel also explained that all printers and publishers are registered with the Respondents based on their experience and capacity and work is allocated through balloting. The parties negotiate the terms of their contracts. The Petitioners before the Court have entered into contracts with the Respondents over the years including this year. For the purposes of government schools the Act and Rules are followed as the service of printing and publishing has to be procured in order to give free distribution of textbooks. For the purposes of private schools contracts are entered into with the candidates on the basis of negotiated price and negotiated quantum for printing and publication as no public procurement is involved. That the entire method of allocation is done with due care and diligence. Further that the process for the purposes of private schools is not financed from the Provincial Consolidated Fund nor is anything purchased, acquired or retained from the public exchequer on the basis of which the Act and the Rules must be followed. Learned Law Officer supported the arguments made by learned counsel for Respondents Nos.2 and 3.

5. Heard and record perused.

6. After hearing the parties, it appears that the Petitioners' relationship with the Respondent PCTB is contractual in nature as the quantum and price is negotiated before settling the terms for providing textbooks for private schools. Furthermore as per the arguments made by the counsel for Respondent PCTB and the learned Law Officer for the purposes of government schools, the Act and the Rules are followed as public provision is involved. However, for the purposes of private schools, the Act and the Rules are not followed because there is no public procurement involved as the services are not financed wholly or partly out of the public fund. In terms of Section 2(n) of the Act, public procurement means acquisition of goods, services or rendering of works financed wholly or partly out of the Public Fund, unless excluded by the Government. In this case, clearly there is a contractual relationship in which the Petitioners negotiate the terms and conditions at which they will print and publish the textbooks for the private schools. Since there is no element of public procurement involved, there is no obligation on the part of the Respondents to call for public procurement for the purposes of private schools textbooks.

7. In view of the aforesaid, no case for interference is made out. Petition is dismissed. MWA/J-1/L Petition dismissed.