IN THE HIGH COURT OF SINDH,
BENCH AT SUKKUR
C.P. No. D- 842 of 2019
|
DATE OF
HEARING |
ORDER
WITH SIGNATURE OF JUDGE. |
Present:
Mr.
Justice Muhammad Junaid Ghaffar &
Mr.
Justice Adnan-ul-Karim Memon.
M/s
AM & MJ Builders Pvt Limited ……………………….Petitioner
Vs.
Province
of Sindh and Others……………………………..Respondents
Mr. Ali Raza Baloch Advocate for the petitioner.
Mr. Noor Hassan Malik, Assistant A.G a/w Ahsan Ali
Chohan, XEN, Public Health Engineering Department, Sukkur (respondent No.4).
Date of
hearing: 12-06-2019
Date of
short order: 12-06-2019.
O
R D E R
Muhammad
Junaid Ghaffar.J., Through instant petition,
petitioner has sought the following relief(s):-
“a. That this Honourable
Court may be pleased to declare that the act of respondents for using illegal
and discriminatory method for procurement of Public Works is illegal, unlawful
and void in the eyes of law.
b. That this Honourable
Court may be pleased to direct the respondents to cancel the illegal NIT dated
08-05-2019, being No. TC/G-148/792/of/2019, being illegal and void.
c. That this Honourable
Court may further be pleased to direct the official respondents to issue fresh
NIT for the works mentioned in the impugned NIT, strictly in accordance with
law, Rules and regulations, provided for procurement of public works, enabling
the petitioner and other eligible contractors to participate in a fair, healthy
and transparent procurement proceedings.
d. That this Honourable
Court may further be pleased to restrain the respondents not to issue the work
orders in respect of NIT dated 08-05-2019, being No.TC/G-148/792/of/2019, till
the disposal of instant petition.
e. That this Honourable Court may be pleased to grant any other
equitable relief which this Honourable Court may deem fit and proper in the
circumstances of the above case”
2. Brief facts as stated are that the
petitioner being a qualified contractor and duly registered with Pakistan
Engineering Council (“P.E.C”) participated in the Notice Inviting Tenders (“NIT”) dated
08.05.2019 and has submitted its technical bids with the Respondents, but at
the same time has also impugned certain conditions of NIT and has filed instant
petition seeking the above relief(s).
3. Learned Counsel for the petitioner
submits that in the impugned NIT sealed bids have been invited under single
stage two envelope procedure bidding process which is in violation of Rule
47(2) of the Sindh Public Procurement Rules, 2010, (“2010 Rules”)
same does not apply to “works” and is only applicable in the procurement of goods and services. He has further argued that the technical proposals at
serial No.8 (a) & (b) of the NIT requiring the participants to show experience
of at least (4) four completed works in previous years in respect of water and
sewerage jobs is discriminatory in nature and in violation of the Rules, 2010
and so also against Article 18 and 25 of the Constitution. Per learned Counsel,
petitioner is an approved contractor by P.E.C in category CE-09 for a value of
Rs.4000 million and therefore, any further condition in the NIT for performance
of previous works is in violation of the Rules including Rule 44 of the 2010
Rules. In view of these submissions, he has prayed for deleting these
conditions in the NIT by allowing the instant petition.
4. Learned Assistant A.G has filed comments
and relied upon Notification dated 19.03.2018 and submits that Rule 47(2)
already stands amended and the word “works” has been inserted, therefore, this
petition is misconceived. Insofar as other objections are concerned, he submits
that they are not discriminatory and are applicable on all the bidders,
whereas, the petitioner in some earlier award of works had defaulted,
therefore, this petition merits no consideration. He has prayed for the
dismissal of this petition.
5. We have heard the learned Counsel for
the petitioner as well as learned Assistant A.G and perused the record. It
appears that the Petitioner has already obtained the tender forms and has
submitted its bids, whereas, during the process of opening of technical bids,
instant petition has been filed and on 23.5.2019 an order was passed not to
issue the work order to the successful bidder. Insofar as the objection in
respect of Rule 47(2) is concerned, after being confronted with the amendment
through Notification dated 19.03.2018, learned Counsel for the petitioner has
not pressed this objection. As to the other objections regarding conditions of
previous works and experience, it may be observed that it is a prerogative of
the procuring agency to invite tenders and also
require the participants to have previous experience of similar nature. On
query from the respondent’s representative, we have been informed that in all (9)
nine bidders have participated in the proceedings and except the petitioner,
who has also filed its bids, none of the other bidders have raised any
objection to this effect. The argument that petitioner is duly registered with
P.E.C under category CE-09 does not appear to be convincing, inasmuch as it is
only issuance of a license by P.E.C and is supposed to be a pre-requisite for
any contractor to be qualified for participation in public or even private tenders.
This is in fact the minimum requirement which a contractor is required to
fulfil. It does not certifies the ability of the
bidder nor is a certification in respect of the competence and guaranteed
satisfactory performance of any works to be performed by a contractor for a procuring
agency. If the procuring agency is of the view that some previous experience of
certain works is necessary, then incorporation of such condition in the tender
cannot be held to be discriminatory as it applies to all the bidders and in
view of the fact that already nine bidders have participated, such argument
appears to be misconceived. It is neither discriminatory in nature, nor is a
restraint on trade as contended by placing reliance on Articles 18 and 25 of
the Constitution of Pakistan, 1973. Once it has been made applicable to all,
then it cannot be set-aside on a sole ground that it does not entitles a new
contractor to enter into the bidding process. This
argument would have sufficed, at the most, if there weren’t any other bidder’s except one or two. However, this is not the case
here, as there are nine (9) bidders in the run; hence, it cannot be sustained
on this ground alone.
6. In view of the foregoing facts and
circumstances of the case, we are of the view that no case for indulgence is
made out and therefore by means of a short order passed in the earlier part of
the day instant petition was dismissed and these are the reasons in support
thereof.
JUDGE
JUDGE
Ahmad