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 o n
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 just ice 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 circumstanc es.
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.
Masoom Khan Kakar for Petiti oner.
Shams -ud-Din Achakzai and Muhammad Hassan Mengal Standing Counsel for
Respondents.
Date of hearing: 6th October, 2016.
JUDGMENT
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 re spondent No.5, for re -tendering the bid in question,
and the advertisement dated 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 th e 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
transparenc y 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 a nd 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 contr oversial 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 i n 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. I t 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 l owest.
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.
(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 A ugust, 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 ca ncel/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 Huss ain 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 stand ards 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 SC MR 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 in stant 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.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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