ORDER SHEET
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DATE ORDER WITH SIGNATURE OF JUDGE
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1) For Katcha Peshi.
2) For hearing of Misc. No.3079/2011
3) For hearing of Misc. No.3025/2011
4) For hearing of Misc. No.1836/2011
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27.04.2011
Mr. Dr. Farogh Naseem, Advocate for Petitioner.
Mr. Agha Faisal, Advocate for Respondent No.4 and 5.
Mr. Aijaz Ahmad, Advocate for Respondent No.6666.
Mr. Saifullah, Asstt. Advocate General
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This matter had been settled at rest by our order dated 09.03.2011, whereby we had released the respondent from verbal commitment of not proceeding with the tender on the basis of the tenders received and had allowed them to proceed with the processing and grant of tenders. However, an urgency application was received on 15.03.2011, whereby the Counsel Ikhtiar Ali Channa was superseded by Dr. Muhammad Farogh Naseem, Advocate, who had moved an urgency application as he wanted to be heard further on the matter as according to him the Government was going to suffer heavy losses on the basis of the ward of tender to the party to whom the tender was awarded and who was later on arraigned as Respondent No.6. From that date onwards on different dates even after the Court timings we have heard all the learned Counsel exhaustively on the above subject.
The main contention of the learned Counsel for the Petitioner, which he has very ably argued is that he has been non-suited on the basis of the information allegedly provided by the Respondent No.6 who was his competitor and he challenged that the information which had been provided malafidely on the ground that the complete information in respect of the products which he had offered was not mentioned and therefore when he was asked to explain as to what products he was offering and how it was in accordance with the requirements specified in the advertisement of the tender, he had explained that basically although few of the products which he could provide were adjustable between 140 HP to 160 HP but one of the products that is C6121ZG01a was specifically of 150 HP only and he had submitted his brochure in this respect and even after this clarification, the rejection of his bid on technical basis was maintained only to facilitate the Respondent No.6. He has relied on a number of judgments where it has been held that where a Government authority while awarding tenders acts in a malafide and biased manner and such tenders are awarded on the basis of a procedure which is not transparent and which on the face of it appears to be motivated then this Court can issue a writ and after canceling the process of tenders direct that the complete process of tendering has to be undertaken again but since disputed technical facts are involved in the petition and it is a trite law that this Court cannot entertain a writ petition on the basis of disputed facts and because of the fact that after our order noted above the process of tendering was completed and the tender was awarded to the Respondent No.6 and Respondent No.6 had already after receiving mobilization advance of 20% of the total bid amount has almost completed the first process i.e. manufacturing process of the Bulldozers ordered and because of the fact that it has now been established that the Bulldozers for which the orders have been placed are of better quality then the Bulldozers for which the financial and technical bid was made by the present Petitioner, therefore, it is not possible to evaluate whether the order has been placed for an amount which is more than the market value of such Bulldozers.
Mr. Aijaz Ahmad, the learned Counsel for the Respondent No.6 has stated before us that the bid was accepted at an amount of Rs.11.5 Million but alongwith the Bulldozers on the same price he offered to supply under carriage for each Bulldozer and also an A.C. system, which according to him will cost him another 1.3 Million.
At this stage Dr. Farogh Naseem had offered that he was willing to supply the same Bulldozers with the same facilities which the Respondent No.6 is providing at an amount of Rs.0.5 Million less than the price for which the tender has been awarded to Respondent No.6. From this offer of Dr. Farogh Naseem it is clear that the initial bid was not made for the Bulldozer of the quality for which the bid has been accepted as now the initial price has been enhanced by 22.5 lacs, therefore, we are of the view that only apples can be compared with the apples and now instead of orange Dr. Farogh Naseem is offering apples at the price of Rs.0.5 Million less than the price offered by the Respondent No.6.
In the order dated 09.03.2011 we had observed that where there is clash of interest between the interest of the public at large and interest of an individual, the interest of public at large has to be given preference and we are of the view that if this tender is not completed within two months then the amount may lapse, although this statement is very strongly contested by Dr. Farogh Naseem, we are however of the view that it may not be possible to arrange for Bulldozers this year and therefore it will result in loss to the Agriculturists of Sindh and therefore at this juncture we find ourselves unable to accede to the request of the learned Counsel for the Petitioner that the tender may be scraped and a fresh tendering process may be initiated. We had, however, directed Mr. Aijaz Ahmad, the learned Counsel for the Respondent No.6 to inquire from his client whether they were willing to revise the price of Bulldozers any further. The learned Counsel has submitted that his price was already very competitive in view of the fact that the second highest bid price was 17.2 Million, which was almost 5.7 million higher than his bid price and they had not offered the two facilities he was offering. He however states that as a mark of respect to the Court he is offering that he will provide free service and consumables for first 1000 operational hours, which according to him is another big facility which will cost him approximately 0.3 to 0.4 Million per Tractor. We appreciate the learned Counsel’s gesture and the respect he has for the Court but we are of the view if the Petitioner can offer the same Bulldozers with the same benefits at a lower price then the reduction of price will not result in loss to the Respondent No.6 but will only reduce his profits to some extent. We are, however, reducing the price to Rs.11 Million per Bulldozer, which will include all the additional facilities offered by the Respondent No.6, and is the price quoted by Dr. Farogh Naseem today. If this offer is not accepted by the Respondent No.6 then before finalizing the contract the Respondent No.4 and 5 shall approach this Court.
Therefore, we are dismissing the petition but if the Petitioner can prove to the satisfaction of any Court that he has been non-suited for malafide manner he may file a suit for damages before any Court which will be decided on its own merits.
JUDGE
JUDGE
Gulsher