2017 CLC 221 Balochistan
2017 C L C 221
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J
Messrs MANDOKHAIL BROTHERS COMMERCIAL TRADING AND GOVERNMENT CONTRACTOR----Petitioner
Versus
CHAIRMAN CIVIL AVIATION and 4 others----Respondents
C.P.No.770 of 2016, decided on 7th November, 2016.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Public procurement---Rejection of bid---Natural justice---Vested right---Scope---Petitioner impugned rejection of its bid by the procuring authority on ground, inter alia, that petitioner had been declared the lowest bidder, and therefore a vested right accrued to the petitioner---Validity---Mere acceptance of the lowest bid would not constitute a concluded contract, therefore, principle of natural justice would not be attracted in such a case, in absence of any vested right of the petitioner---Bid of petitioner had not been confirmed finally and contract therefore, could not be said to be completed---Constitutional petition was dismissed, in circumstances.
Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 and Babu Pervez v. Settlement Commissioner, Multan and Bahawalpur Divisions Multan and 2 others 1974 SCMR 337 rel.
JUDGMENT
Masoom Khan Kakar for Petitioner.
Shams-ud-Din Achakzai and Muhammad Hassan Mengal Standing Counsel for Respondents.
Date of hearing: 6th October, 2016.
MUHAMMAD EJAZ SWATI, J.--- The respondents invited tender of construction of Staff Mess and APM residence at Zhob, Airport through publication in daily newspaper Jang, Quetta dated 28th April 2016 (tender in question). Five bidders including the petitioner participated in the tender. The petitioner secured lowest position by quoting their bid amounting to Rs.17,358,485/-. It is the case of the petitioner that the petitioner was declared lowest bidder and despite approval/issuance of comparative statement by the respondents Nos.2, 3 and 4, no work order was issued for three months and contrary to Public Procurement Regularity Authority Rules, 2004 (PPRA Rules) re-advertised the tender in daily newspaper Jang, Quetta dated 13th August, 2016. The petitioner submitted an application to the respondent No.5 on 12th August, 2016, but the same has not been replied with. In the instant petition, the petitioner prayed as under:
"It is therefore, prayed that this Hon'ble Court may kindly allow the petition and the petitioner be awarded the bid in question (construction of Staff mess and APM House at Zhob Airport) and be restrained the respondent No.5, for re-tendering the bid in question, and the advertisement dated
1 of 32/22/2018, 12:19 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017Q202
13.8.2016, be cancelled/suspended of re-tendering the bid in question in the interest of justice and fair play.
Any other relief which the court thinks fit and proper may be granted."
2.The respondents in their parawise comments besides raising preliminary objections of maintainability of the Constitutional Petition and adequate alternate remedy, also contested the petition on merit. The respondents submitted that the office of the Additional Director ES (Civil) IAP, during scrutiny of the bid in question found several ambiguities and thus recommended cancellation of the tender. The competent authority i.e. Director Engineering Services granted approval of cancellation of bids with initiation of process for re-tendering.
3.Learned counsel for petitioner contended that the petitioner was lowest bidder and in this regard comparative statement was also approved/issued by the competent authority would constitute vested right of the petitioner to get the contract carried out; that the bid of the petitioner was cancelled by the respondents merely on the ground that there was a discrepancy between words and figure regarding rate/amount of items Nos.18, 21 etc.; that as per transparency of PPRA Rules, 2004, if any discrepancy between the amount in figures and in words had been found during scrutiny, the amount in words will be governed; that the letter dated 21st July, 2016 issued by the Divisional Engineer (Civil) Works Civil Aviation, Quetta was replied vide letter dated 23rd July, 2016 by the petitioner and well explained the discrepancies, therefore, the impugned cancellation of the bids is unwarranted; that the action of the respondents suffered from lack of procedure, proprieties and violation of principle of natural justice, failure in duty to act fairly and contrary to the consonance with the settled principle of law and PPRA Rules, 2004 and be declared as such.
The learned Standing Counsel assisted by the learned counsel for the respondents contended that no contract had been arrived at between the parties enforceable under the law; that the petitioner could not claim to have any vested right for the award of the contract; that the contentions of the petitioner are based on controversial question of fact, which cannot be determined in Constitutional Petition; that the petitioner has adequate and alternate remedy.
4.We have heard the learned counsel for the parties and perused the record appended along with the petition. The bid in question was opened on 19th May, 2016 and the petitioner was lowest bidder on opening of tender in question. It appears that during scrutiny of bids in question, the Additional Director ES (Civil) JIAP found following several ambiguities:
"The bid of M/s. Haji Syed & Sons, who claimed himself as 1st lowest vide his letter dated 18-7-2016 (E: 24-A) has been checked. It reveals from office record that respective bidder has submitted letter of clarification after two months without any query of department. It has been observed the respective contractor submitted his bid in haphazard way as he not only left the blank page of abstract when he quoted rates of some items with pencil in 1st instance then mentioned with ink over pencil written rates. The column of amount against some items was filled with pencil only which is objectionable in accordance with the clause (6) of rules mentioned at 3 above. There were some arithmetical errors which were corrected and resulted the change in his position from 1st to 5th lowest.
This office during the scrutiny of bids, has noted some further observations as mentioned below.
(i)The rate mentioned in words by 1st lowest bidder against BOQ item 28 of S/H-1 seems doubtful.
2 of 32/22/2018, 12:19 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017Q202
(ii)The word food grade in the nomenclature item No.21 (S/H-2) has unlawfully been changed with good grade without any signatures of authenticity in all bids whereas the accurate word is food grade as per PWD Schedule.
(iii)The unit of quantity against items Nos.17 and 18 of S/H-3 in all bids has been corrected in black whereas the same has been initiated in blue ink without signatures of authenticity.
(iv)The special terms and conditions not signed by any bidder except the 2nd lowest who also left the unsigned terms and conditions of E/M portion."
It appears that in view of the above ambiguity the Competent Authority recommended the approval and cancelled the bid and further approved to initiate re-tendering process and calling a fresh tender. The re-tender was also published in daily Jang dated 13th August, 2016, with the opening of bid on 29th August, 2016, wherein petitioner also participated. The tender in question published in the newspaper dated 28th October, 2016 clearly mentioned that "the Pakistan Civil Aviation Authority resume the right to cancel/reject any single or all the tenders for sufficient and cogent reasons, which should be communicated to the bidders only on the request made by them". The bid in question was opened on 19th May, 2016, but till 23rd July, 2016, after two months of opening of the bid, no such request was made by the petitioner seeking the reasons for rejection. Admittedly, no final contract had come into existence between the parties. The mere acceptance of lowest bid of the petitioner would not constitute a concluded contract, therefore, principle of natural justice was not attracted in absence of infringement of any vested right of the petitioner. Reference in this respect is to be made to the case of Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others, PLD 2001 SC 116, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"We would conclude the above discussion with the observations that the impugned judgment is not sustainable as the administrative decision challenged by the respondent neither lacks transparency nor is tainted with mala fide or is unfair, unjust or unreasonable or based on bias or favouritism and the discretion vested in the Pakistan Railways having been properly structured by reference to objective standards cannot be said to have been exercised arbitrarily. The public interest would be best served if the concluded contracts in question are preserved."
In Babu Pervez v. Settlement Commissioner, Multan and Bahawalpur Divisions Multan and 2 others, 1974 SCMR 337, it was observed as under:--
"A mere bid at an auction if the bid is subject to confirmation, does not create any contractual right until the bid is confirmed. It is in the discretion of the auctioneer to confirm or not to confirm it. "
5.In the instant case, the bid of the petitioner had not been confirmed finally, therefore, the contract could not be said to have been completed and the official respondents after making scrutiny justifiably cancelled the bid and then re-advertised the bid and the petitioner also participated in the re-advertised bid, therefore, in absence of infringement of any right, the instant petition is not maintainable.
In view of the above, Constitutional Petition No.770 of 2016 is dismissed and the parties are left to bear their own cost.
KMZ/75/Bal.Petition dismissed.
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J
Messrs MANDOKHAIL BROTHERS COMMERCIAL TRADING AND GOVERNMENT CONTRACTOR----Petitioner
Versus
CHAIRMAN CIVIL AVIATION and 4 others----Respondents
C.P.No.770 of 2016, decided on 7th November, 2016.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Public procurement---Rejection of bid---Natural justice---Vested right---Scope---Petitioner impugned rejection of its bid by the procuring authority on ground, inter alia, that petitioner had been declared the lowest bidder, and therefore a vested right accrued to the petitioner---Validity---Mere acceptance of the lowest bid would not constitute a concluded contract, therefore, principle of natural justice would not be attracted in such a case, in absence of any vested right of the petitioner---Bid of petitioner had not been confirmed finally and contract therefore, could not be said to be completed---Constitutional petition was dismissed, in circumstances.
Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 and Babu Pervez v. Settlement Commissioner, Multan and Bahawalpur Divisions Multan and 2 others 1974 SCMR 337 rel.
JUDGMENT
Masoom Khan Kakar for Petitioner.
Shams-ud-Din Achakzai and Muhammad Hassan Mengal Standing Counsel for Respondents.
Date of hearing: 6th October, 2016.
MUHAMMAD EJAZ SWATI, J.--- The respondents invited tender of construction of Staff Mess and APM residence at Zhob, Airport through publication in daily newspaper Jang, Quetta dated 28th April 2016 (tender in question). Five bidders including the petitioner participated in the tender. The petitioner secured lowest position by quoting their bid amounting to Rs.17,358,485/-. It is the case of the petitioner that the petitioner was declared lowest bidder and despite approval/issuance of comparative statement by the respondents Nos.2, 3 and 4, no work order was issued for three months and contrary to Public Procurement Regularity Authority Rules, 2004 (PPRA Rules) re-advertised the tender in daily newspaper Jang, Quetta dated 13th August, 2016. The petitioner submitted an application to the respondent No.5 on 12th August, 2016, but the same has not been replied with. In the instant petition, the petitioner prayed as under:
"It is therefore, prayed that this Hon'ble Court may kindly allow the petition and the petitioner be awarded the bid in question (construction of Staff mess and APM House at Zhob Airport) and be restrained the respondent No.5, for re-tendering the bid in question, and the advertisement dated
1 of 32/22/2018, 12:19 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017Q202
13.8.2016, be cancelled/suspended of re-tendering the bid in question in the interest of justice and fair play.
Any other relief which the court thinks fit and proper may be granted."
2.The respondents in their parawise comments besides raising preliminary objections of maintainability of the Constitutional Petition and adequate alternate remedy, also contested the petition on merit. The respondents submitted that the office of the Additional Director ES (Civil) IAP, during scrutiny of the bid in question found several ambiguities and thus recommended cancellation of the tender. The competent authority i.e. Director Engineering Services granted approval of cancellation of bids with initiation of process for re-tendering.
3.Learned counsel for petitioner contended that the petitioner was lowest bidder and in this regard comparative statement was also approved/issued by the competent authority would constitute vested right of the petitioner to get the contract carried out; that the bid of the petitioner was cancelled by the respondents merely on the ground that there was a discrepancy between words and figure regarding rate/amount of items Nos.18, 21 etc.; that as per transparency of PPRA Rules, 2004, if any discrepancy between the amount in figures and in words had been found during scrutiny, the amount in words will be governed; that the letter dated 21st July, 2016 issued by the Divisional Engineer (Civil) Works Civil Aviation, Quetta was replied vide letter dated 23rd July, 2016 by the petitioner and well explained the discrepancies, therefore, the impugned cancellation of the bids is unwarranted; that the action of the respondents suffered from lack of procedure, proprieties and violation of principle of natural justice, failure in duty to act fairly and contrary to the consonance with the settled principle of law and PPRA Rules, 2004 and be declared as such.
The learned Standing Counsel assisted by the learned counsel for the respondents contended that no contract had been arrived at between the parties enforceable under the law; that the petitioner could not claim to have any vested right for the award of the contract; that the contentions of the petitioner are based on controversial question of fact, which cannot be determined in Constitutional Petition; that the petitioner has adequate and alternate remedy.
4.We have heard the learned counsel for the parties and perused the record appended along with the petition. The bid in question was opened on 19th May, 2016 and the petitioner was lowest bidder on opening of tender in question. It appears that during scrutiny of bids in question, the Additional Director ES (Civil) JIAP found following several ambiguities:
"The bid of M/s. Haji Syed & Sons, who claimed himself as 1st lowest vide his letter dated 18-7-2016 (E: 24-A) has been checked. It reveals from office record that respective bidder has submitted letter of clarification after two months without any query of department. It has been observed the respective contractor submitted his bid in haphazard way as he not only left the blank page of abstract when he quoted rates of some items with pencil in 1st instance then mentioned with ink over pencil written rates. The column of amount against some items was filled with pencil only which is objectionable in accordance with the clause (6) of rules mentioned at 3 above. There were some arithmetical errors which were corrected and resulted the change in his position from 1st to 5th lowest.
This office during the scrutiny of bids, has noted some further observations as mentioned below.
(i)The rate mentioned in words by 1st lowest bidder against BOQ item 28 of S/H-1 seems doubtful.
2 of 32/22/2018, 12:19 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017Q202
(ii)The word food grade in the nomenclature item No.21 (S/H-2) has unlawfully been changed with good grade without any signatures of authenticity in all bids whereas the accurate word is food grade as per PWD Schedule.
(iii)The unit of quantity against items Nos.17 and 18 of S/H-3 in all bids has been corrected in black whereas the same has been initiated in blue ink without signatures of authenticity.
(iv)The special terms and conditions not signed by any bidder except the 2nd lowest who also left the unsigned terms and conditions of E/M portion."
It appears that in view of the above ambiguity the Competent Authority recommended the approval and cancelled the bid and further approved to initiate re-tendering process and calling a fresh tender. The re-tender was also published in daily Jang dated 13th August, 2016, with the opening of bid on 29th August, 2016, wherein petitioner also participated. The tender in question published in the newspaper dated 28th October, 2016 clearly mentioned that "the Pakistan Civil Aviation Authority resume the right to cancel/reject any single or all the tenders for sufficient and cogent reasons, which should be communicated to the bidders only on the request made by them". The bid in question was opened on 19th May, 2016, but till 23rd July, 2016, after two months of opening of the bid, no such request was made by the petitioner seeking the reasons for rejection. Admittedly, no final contract had come into existence between the parties. The mere acceptance of lowest bid of the petitioner would not constitute a concluded contract, therefore, principle of natural justice was not attracted in absence of infringement of any vested right of the petitioner. Reference in this respect is to be made to the case of Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others, PLD 2001 SC 116, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"We would conclude the above discussion with the observations that the impugned judgment is not sustainable as the administrative decision challenged by the respondent neither lacks transparency nor is tainted with mala fide or is unfair, unjust or unreasonable or based on bias or favouritism and the discretion vested in the Pakistan Railways having been properly structured by reference to objective standards cannot be said to have been exercised arbitrarily. The public interest would be best served if the concluded contracts in question are preserved."
In Babu Pervez v. Settlement Commissioner, Multan and Bahawalpur Divisions Multan and 2 others, 1974 SCMR 337, it was observed as under:--
"A mere bid at an auction if the bid is subject to confirmation, does not create any contractual right until the bid is confirmed. It is in the discretion of the auctioneer to confirm or not to confirm it. "
5.In the instant case, the bid of the petitioner had not been confirmed finally, therefore, the contract could not be said to have been completed and the official respondents after making scrutiny justifiably cancelled the bid and then re-advertised the bid and the petitioner also participated in the re-advertised bid, therefore, in absence of infringement of any right, the instant petition is not maintainable.
In view of the above, Constitutional Petition No.770 of 2016 is dismissed and the parties are left to bear their own cost.
KMZ/75/Bal.Petition dismissed.
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