Redressal of grievance

2024 PLD 213 ISLAMABAD Judicial Precedent

Rr. 33 & 48Bidding processRedressal of grievanceVested rightScope

Grievance redressal mechanism provided under R. 48 of Public Procurement Rules, 2004, is meant to ensure that principles of procurement as enshrined in Public Procurement Rules, 2004 and procedures prescribed therein are abided by procuring agency while procuring goods and services

No bidder has vested right to seek issuance of procurement contract, even where its bid is found to be the most advantageous bid

Bidder cannot be deemed to be aggrieved by the act of procuring agency to annul procurement process in exercise of its power under R. 33 of Public Procurement Rules, 2004

Provision of R. 33(2) of Public Procurement Rules, 2004, provides that procuring agency can incur no liability towards bidders who have submitted their bids, if it elects to reject all bids and annul the procurement process

Bidder may be aggrieved where its bid has been rejected and bid of another competitor has been accepted

Where all bids have been rejected, the bidder, whose bid may be deemed to be a most advantageous bid, cannot claim to have a justiciable legal grievance, redressal of which can be sought under R. 48 of Public Procurement Rules, 2004

Where there is a right, there is a remedy

Party making the best bid in a tender process has no right to be granted a contract and consequently, it cannot seek a legal remedy forcing procuring agency to accept its bid and enter into a contract

In commercial and contractual matters constitutional Courts do not exercise searching scrutiny when invited to undertake judicial review of decisions rendered by public authorities

Constitutional Courts exercise their judicial review powers to ensure that the State does not dispense its largesse in an illegal, arbitrary or whimsical fashion

Where State and its instrumentalities choose not to dispense any largesse and elect not to enter into a contract to procure goods and services, the Court is loath to force a procuring agency exercising authority on behalf of the State to enter into a contractual relationship for procurement of such goods and services

This is moreso in view of R. 34 of Public Procurement Rules, 2004, where in aftermath of annulment of procurement process, a procuring agency can initiate a procurement process afresh, which then provides an equal opportunity to all interested parties to enter into bidding contest and decision to annul previous procurement process can therefore not be seen as serving the interest of any particular bidder.

2023 MLD 674 ISLAMABAD Judicial Precedent

R. 48Qanun-e-Shahadat (10 of 1984), Art. 114TenderRedressal of grievanceTerms and conditions of procurement proceedingsEstoppel, principle ofApplicabilityFailure to raise any objection

Petitioner company after having lost the tender, assailed procurement process on the plea of defective terms and conditions

Validity

Once petitioner had chosen to participate in contest subject to certain terms and conditions, it could not seek to have the contest annulled after it was found to have lost in an evaluation carried out in accordance with the terms and conditions prescribed for such contest

Petitioner submitted its bid without challenging terms and conditions of bidding documents under R. 48(2) of Public Procurement Rules, 2004 and was consequently estopped from challenging such terms and conditions of the tender after evaluation of the bid, once it was declared pursuant to such evaluation that the petitioner was not the successful bidder

Petitioner failed to establish that the manner in which its bid was evaluated, pursuant to terms of the tender, was discriminatory or suffered from illegality

High Court declined to interfere in procurement proceedings

Constitutional petition was dismissed, in circumstances.

2023 CLC 1657 ISLAMABAD Judicial Precedent

Rr.5 & 48Foreign funded projectRedressal of grievance

Petitioners as joint venture participated in award of contract for the project funded by Asian Development Bank ('A.D.B.') and had assailed rejecting of their technical bids as non-responsive

Plea raised by petitioners was that the authorities did not disclose reasons for rejection of their bids

Petitioners sought setting aside of procurement process

Validity

Project in question was funded by A.D.B. pursuant to loan agreement executed between Pakistan and A.D.B., therefore, R. 5 of Public Procurement Regulatory Authority Rules, 2004, had come into operation

Provisions of loan agreement prevailed over those of Public Procurement Regulatory Authority Rules, 2004, but only to the extent of conflict between them

Mere fact that tender of bidding process was initiated by a procuring agency in Pakistan for award of contract which was funded by an international financial institution like A.D.B. did not ipso facto lead to a complete ouster of the provisions of Public Procurement Regulatory Authority Rules, 2004

Where loan agreement executed with international financial institution did not provide for a bidders' grievance redressal mechanism either expressly or by reference, provision of R.48 of Public Procurement Regulatory Authority Rules, 2004 continued to be enforced

In cases where loan agreement provided for such a mechanism but its mode was different from the one envisaged by R.48 of Public Procurement Regulatory Authority Rules, 2004, the parties were left to resort to the mechanism provided for in the loan agreement

Petitioners had already voiced their grievance against their ouster from bidding process and had sought an opportunity to place certain facts on the record

After a delay of eight months, authorities disclosed reasons for disqualification of petitioners and it was incumbent on them to refer petitioners' bidding-related complaint for resolution in terms of relevant clause of the Instructions To Bidders read with S.2 of Bid Data Sheet

It was for the forum designated in S. 2 of Bid Data Sheet to determine whether or not petitioners had filed taking over certificate along with their bid and whether such certificate along with accompanying documents fulfilled requirement stipulated in relevant clause of Evaluation and Qualification Criteria of Instructions To Bidders

Provisions of Instructions To Bidders provided adequate alterative remedy albeit different from the one envisaged by R.48 of Public Procurement Regulatory Authority Rules, 2004

High Court declined to interfere in the bidding process

Constitutional petition was dismissed in circumstances.

2022 PTD 1690 ISLAMABAD Judicial Precedent

Ss.4(1)(s) & 140Tax recoveryCoercive measuresMechanismRedressal of grievance

Federal Board of Revenue is endowed with duty to facilitate taxpayers and establish mechanism to address their grievances and complaints

Under fiscal laws, including Income Tax Ordinance 2001, officials are conferred vast powers to adopt coercive measures to affect recovery of tax liability under S.140 of Income Tax Ordinance, 2001, from person holding money on behalf of taxpayer

Such powers should never be abused to meet collection targets by Commissioner or by adopting abhorrent procedures such as not serving notice under S.140 of Income Tax Ordinance, 2001, in a timely fashion on taxpayer and or third party from whom collection is to be made in order to pre-empt opportunity for such persons to verify or challenge such demand to seek redressal against it

In case such power is abused by tax officials or wrongly exercised, leading to recovery from a person from whom collection could not be made under S.140 of Income Tax Ordinance, 2001, there must be provided a grievance redressal mechanism in discharge of Federal Board of Revenue's functions under S.4(1)(s) of Income Tax Ordinance 2001.

2017 YLR 1748 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 204Contempt of CourtRedressal of grievancePetitioner was aggrieved of non-compliance of order passed by High Court as plot in question was not allotted to her

Authorities placed on record copy of letter showing that plot in question was allotted to petitioner and she was satisfied and did not want to press her petition

Effect

High Court observed that although contempt of High Court had taken place a number of times in the course of such sordid story of usurpation of rights and property of a private citizen and then demonstration of stark high handedness of executive functionaries to compensate citizen adequately and properly, as grievance of petitioner was redressed, therefore, High Court in its utter wisdom was not proceeding further with contempt petition against authorities, by showing grace and mercy to them with the expecta-tion that they would remedy their error of ways

High Court, however, directed the head of the department concerned (Development Authority) to complete the projects/tasks which had been undertaken by his predecessor

Petition was disposed of accordingly.