IN THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No.D-2352 of 2016
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Date Order with Signature(s) of Judge(s)
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Present
Mr. Justice Munib Akhtar
Mr. Justice Abdul Maalik Gaddi
Petitioner : Procon (Pvt.) Limited
through its Chief Executive Muhammad Akram son of Muhammad Fahim, having his Business Place, 10th Street, Phase-VI, DHA, Karachi
through Mr. Shahab Sarki Advocate
Respondent No.1 : Federation of Pakistan
through Secretary Ministry of Petroleum and Natural Resources having its Office at Islamabad
through Mr. Aslam Butt, DAG
Respondent No.2 : Managing Director Sui Southern Gas
Company, Limited, ST-4/B, Block-14, Sir Suleman Road, Gulshan-e-Iqbal,
Karachi through M/s. Sajid Zahid & Jawad Dero Advocates
1. For hearing of Misc. No.11233/2016
2. For hearing of Main Case
Date of hearing : 20.05.2016
Date of Judgment : 01.06.2016
J U D G M E N T
Abdul Maalik Gaddi, J. – Through instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioner has sought following relief(s):-
1. Direct the respondents to allow the petitioner to participate in the tender by giving him fair and appropriate opportunity to submit his bid in 3rd ITT bid.
2. Restrain the respondents not to award the contract on the basis of bid, which procedure of bid has been impugned before this Hon’ble Court.
3. Any other order as deemed fit and appropriate in accordance with the circumstances and facts of the case may be passed.
4. Cost of the petition.
2. The brief facts leading to filing of instant constitution petition are that M/s. Procon (Pvt.) Limited, being skilled in providing services for construction of oil and gas industry had participated in tender published in Daily Newspaper Dawn dated 30th March, 2016 for construction of 42” dia x 80 KMs gas transmission pipeline from HQ-3 (Hyderabad) to MVA Lundo District Sanghar, for transporting RLNG to meet the gas requirement of Northern Pakistan. As per petitioner, the subject tender notice has been twice floated by the respondents and annulled. The bids have been again invited by the respondents for the third time vide abovementioned 3rd ITT tender notice. The petitioner in response to the third notice, prepared comprehensive bids comprising technical and commercial proposals and prepared for participation in the third tender. As per conditions of tender notice, the petitioner was required to be present in the office of the respondent No.2 for placing the bid at 11:00 a.m. on 15th April, 2016, however, the petitioner informed the GM procurement about his location vide text message sent through his mobile phone and reached in the premises of the office of respondent No.2 at 11:00 a.m. After going through regular procedure at reception desk, the petitioner and his team were issued entry passes at 11:01 a.m. Nevertheless, the petitioner was not allowed to participate in the bid on the pretext of late arrival by 04-05 minutes. The petitioner was shocked and protested at the biased attitude of the respondent No.2. A request in this behalf was also made in writing vide Letter dated 18th April, 2016 but the same was turned down vide Letter dated 20th April, 2016 by the respondent No.2. Thus, the petitioner’s company was debarred from participating in the subject bids. The petitioner has, therefore, filed instant constitution petition on the ground that M/s. Procon (Pvt.) Limited has been discriminated due to whimsical pretext on part of respondent No.2 and has been denied participation in the bids. It is averred in the petition that the petitioner is one of the few companies in Pakistan, who possess requisite technical qualification, hence, they may be allowed to submit their bid as provided under PPRA Rules, 2002 so as to procure best rates by way of widest possible competition between the bidders and make bidding in conformity with the PPRA Rules, 2002. Therefore, it has been prayed that the respondent No.2 be directed to allow the petitioner to participate in the tender by affording fair and appropriate opportunity to submit his bid and till that time, the respondents be restrained from awarding the contract.
3. It appears from the record that on 28.04.2016 after hearing the learned counsel for the petitioner, an order was passed, operative part of the same is reproduced for the sake of brevity:-
“notice to the respondents also learned DAG for 05.05.2016. Till the next date, processing of the bids may be continued by SSGC, but no final decision/ order/ award shall be made without the permission of the Court.”
4. The respondent No.2 Sui Southern Gas Company filed counter affidavit against injunction application so also filed parawise comments against main petition denying the averments made by the petitioner in the injunction application as well as memo of petition, stating therein that the bid was not tendered by the petitioner within the time limit i.e. 11:00 a.m. on 15th April, 2016, prescribed in the tender notice published in Daily Newspaper Dawn dated 30th March, 2016 and the set of instruction prescribed therein. Against the counter affidavit as well as parawise comments of respondent No.2, the petitioner filed affidavit-in-rejoinder asserting almost the same averments as have been made in the memo of petition. Nevertheless, still images from the CCTV footage of the cameras installed in the office premises of respondent No.2, claiming that the persons depicted in the images are members of the petitioner’s team, who arrived at the reception counter of the office of the respondent No.2 at 11:00 a.m. on 15.04.2016 for filing bids, as per schedule published in the newspaper on 30th March, 2016.
5. On 20.05.2016, the learned Advocates for the parties to the petition and learned DAG were heard at length with regard to proper meaning in law of provisions in tender documents that specifies the time and place where the bids had to be submitted and to determine whether or not, in the facts and circumstances of the case, the petitioner was in time. The operative part of the order dated 20.05.2016 is reproduced as follows:-
“In case we decide in favour of the contesting respondent and against the petitioner then the petition shall stand dismissed. On the other hand, if we decide in favour of the petitioner and against the contesting respondent on the point noted above then further hearing in the petition shall proceed on the merits of the case as sought to be made out by the petitioner and as opposed/contested by respondent No.2. Till the date of announcement, the interim orders made earlier to continue.”
6. Learned Advocate for the petitioner has argued that M/s. Procon (Pvt.) Limited is eligible for furnishing the bid in response to the tender notice published in Daily Newspaper Dawn on 30th March, 2016. The bid was duly prepared and set for submission by the representatives of the petitioner’s company. The notice said that the bid submission deadline was 11:00 a.m. on 15th April, 2016 and that bid would be opened publically thirty minutes after bid submission time. It is further argued that the representative of the petitioner were in the premises of Sui Southern Gas Company (SSGC) before 11:00 a.m. whereas, when the petitioner’s bid was refused to be entertained and the petitioner wrote a letter to Sui Southern Gas Company on 18th April, 2016, the latter stated by reply dated 20th April, 2016 that the petitioner’s representative arrived five (05) minutes late. Learned counsel for the petitioner states that the representatives of the petitioner were in the premises and, therefore, within time within the meaning of law, therefore, petitioner’s company has every right to participate in bids but could not be allowed on the pretext that the representatives of the petitioner’s company were failed to submit the bid within the prescribed time in the tender notice. Therefore, he has prayed that the respondents may be directed to allow the petitioner to furnish their bid and participate in the tender.
7. On the other hand, the learned Advocate for the respondent No.2 has vehemently opposed the contentions raised at the bar by the learned Advocate for the petitioner. It has been argued on behalf of respondent No.2 that the petition is not maintainable for the reason that the petitioner has not been aggrieved from any act of the respondent. The deadline fixed by the respondent was not challenged till 15th April, 2016. No sooner did the petitioner’s company failed to furnish their bid on account of their own sloth and this petition has been filed only to linger on the process. During the course of arguments, he draws our attention towards various documents available in the case file and contended that the bid submission deadline was 11:00 a.m. on 15th April, 2016; furthermore, the tender documents specifically stated that the bids were to be submitted in “tender room” in procurement department, of the respondent No.2’s office but the petitioner failed to submit its bid within the stipulated time and the mere fact that the petitioner’s representatives sent a text message to the GM procurement at 10:56 hours informing them that they will be 05-10 minutes late as stated in the petition does not mean that the petitioner was entitled to special treatment or that its bid could be accepted after the submission time in violation of Rule 28(2) of The Public Procurement Rules, 2004. He further argued that CCTV footage at the premises of respondent No.2 shows the petitioner’s team entering the premises at 10:59:55 hours and reaching the reception desk of the building at 11:00:35 hours and consequently, being late for the submission of petitioner’s bid is not entitled for any relief.
8. Learned DAG has adopted the arguments advanced by the learned counsel for respondent No.2.
9. It appears from the record that tender notice published in Daily Newspaper Dawn dated 30th March, 2016 was intended for calling the bidders possessing prescribed expertise in the relevant field. The terms and conditions prescribed in the set of instructions of the tender notice were correspondingly binding on all the eligible candidates, who intended to participate in the bid. By virtue of those instructions all the eligible candidates were required to furnish their respective bids by 15th April, 2016 till 11:00 a.m. in sealed envelopes. The bids so received were scheduled to be opened on the same day at 11:30 a.m. in presence of the bidders. Thus, to make the process transparent and in consonance with Public Procurement Rules, 2004, entire procedure was not only chalked out and published in the newspaper for information of all concerned and sufficient time was also allocated for preparation and submission of such bids. Therefore, the process of inviting the bids cannot be set to be tainted. The petitioner not denying the fact of having conscious knowledge regarding the ceiling date and time for submitting bids should have made arrangement for furnishing the same within the prescribed time. Since the time and venue of submission of bid were shown in the tender notice, but as per record the petitioner failed to submit its bid within the stipulated time and the mere fact that the petitioner’s representative sent a text message to General Manager, Procurement at 10:56 hours informing them that they will be 5-10 minutes late as stated in the petition does not mean that the petitioner was entitled to a special treatment or that its bid could be accepted after the submission of time in violation of Rule 28(2) of the Public Procurement Rules, 2004. It is pertinent to mention here that the respondent No.2 alongwith their parawise comments have filed annexure-C, C-1 and C-2 respectively. Annexure-C showing the date, time and venue for submissions of the bids. Annexure-C-1 showing a text message sent by the petitioner’s representative to the respondent No.2 mentioning therein that they would be late 05 to 10 minutes for submissions of bid due to traffic problem, whereas annexure-C-2 shows the CCTV footage at the premises of respondent No.2 showing the petitioner’s team entering in the premises at 10:59:55 hours and reaching the reception desk of the building at 11:00:35 hours and consequently, being late for submission of the petitioner’s bid. These documents have not been specifically denied/challenged by the petitioner. As mentioned hereinabove, the tender documents required the bidders to submit their bids at “tender room” of the procurement department at 11:00 a.m. but the petitioner was failed to do so. It is also pertinent to mention here that in response to tender notice, six (06) bidders have responded to the tender enquiry and obtained the tender documents from the respondent No.2. It also appears from the record that out of six (06) bidders, only four (04) bidders (excluding the petitioner) submitted their bids within the prescribed time and they were available in “tender room” and this fact confirms from attendance sheet on record and this attendance sheet has not been challenged by petitioner. Therefore, under these circumstances, if the petitioner is allowed to participate in the bidding process after the expiry of stipulated time, serious prejudice would be caused to the bidders, who were already available in time in the “tender room”. Tossing allegations without proof of tainted exercise on the respondent in order to screen the fault just to annihilate the entire process of awarding contract, for their own good, at the costs of public exchequer appears to not proper. Nothing on record to show that respondent has made any hindrance in reaching the petitioner to “tender room” for submission of bid. Not only this, the petitioner has also failed to point out any discrimination with him by the respondent No.2.
10. Admittedly, the petitioner has not applied for extension of time in terms of Rule 27 of the Public Procurement Rules, 2004. The procedure prescribed for extension in time of bidding has been enunciated under Rule 27 of the Public Procurement Rules, 2004, which reads as under:-
“27. Extension of time for submission of bids. – Where a procuring agency has already prescribed a deadline for the submission of bids and due to any reason the procuring agency finds it necessary to extend such deadline, it shall do so only after recording its reasons in writing and in an equal opportunity manner. Advertisement of such extension in time shall be done in a manner similar to the original advertisement.”
From the perusal of the above Rule, it appears that if the petitioner is allowed to participate in the bidding process after expiry of time, the procedure as mentioned in the above Rule would be followed as such the representatives of other companies, who were present in the “tender room” on the fateful day in time, would be deprived of their rights and resulting in collapse of the entire process, which is being carried third time.
11. It is settled position of law that when a thing is to be done in a particular manner, it must be done in that way and not otherwise as held in the case of Tehsil Nazim TMA, Okara …vs… Abbas Ali and 2 others reported in 2010 SCMR 1437. Same view was also taken in a case of Hakim Ali …vs… Muhammad Saleem and others reported in 1992 SCMR 46. But the case in hand, the petitioner has failed to submit his bid in time as prescribed, therefore, merely his presence in the office of the respondent No.2 is irrelevant; therefore, he could not blame to the respondent No.2 for his own fault. It is also settled position of law that law favours who are vigilant qua their rights and not indolent. Reliance in this respect is placed in the case of Muhammad Hussain and others …vs… Dr. Zahoor Alam reported in 2010 SCMR 286. Record shows that in the case in hand, the petitioner did not remain vigilant in submitting his bid within time, therefore, not entitled for any relief.
12. For the foregoing reasons, we are of the view that the petitioner has filed instant petition without any cause of action or a grievance. The only purpose which could have been achieved by filing instant petition was to frustrate and thwart the bidding process which would entail financial losses and postponement in performance of public work. This petition in our view is misconceived in fact and law and as such the same is dismissed alongwith listed application in terms of order dated 20.05.2016 with no orders as to costs.
JUDGE
JUDGE
Faizan/