2022 C L C 781
[Balochistan]
Before Naeem Akhtar Afghan, CJ and Abdul Hameed Baloch, J
ABDUL GHANI KHETRAN and another ----Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Irrigation Department and
another ----Respondents
Constitution Petitions Nos.1312 and 1348 of 2021, decided on 30th September, 2021.
Balochistan Public Procurement Regulatory Authority Rules, 2014 ---
----R.12(1)(b)(c) ---Constitution of Pakistan, Art. 199 ---Packaging / Merging of construction
contracts --- Petitioner wa s a pre -qualified contractor and aggrieved of packaging / merging
of construction of ten water dams in four districts into four contracts ---Validity ---Public
exchequer was not to be made to suffer due to exercise of powers by public functionaries in
arbitr ary and unreasonable manner giving extra favour to one party at the cost of others ---
Contracts carrying elements of public interest were to be just, fair, transparent, reasonable
and free from any taint of mala fides and all such aspects were always open for judicial
review by High Court in exercise of Constitutional jurisdiction under Art.199 of the
Constitution on the touchstone of reasonableness, fair play, natural justice, equality and non -
discrimination ---High Court declared packaging / merging of con struction of ten dams into
four contracts by authorities as null, void and of no legal effect ---High Court further declared
pre-qualification summary prepared by authorities for ten dams of four districts packed /
merged into four contracts as null, void a nd of no legal effect ---High Court cancelled
financial bids submitted by construction companies for ten dams of four districts packed /
merged into four contracts, as the same had not been opened till then ---High Court directed
the authorities to issue not ice inviting tenders / invitations to bid to all already prequalified
construction companies to participate in bidding process for construction of ten dams as ten
different projects ---Constitutional petition was allowed accordingly.
Airport Support Servi ces v. Airport Manager 1998 SCMR 2268 and Muhammad
Afzal v. Shahzad Asghar Dar 2003 SCMR 280 rel.
Nadir Ali Chalgari and Muhammad Bilal Mohsin for Petitioner (in C.P. No.1312 of
2021).
Habib -ur-Rehman Baloch for Petitioner (in C.P. No.1348 of 2021)
Zaho or Ahmed Baloch, Assistant Advocate General assisted by Shoaib Nadeem
Project Director, Construction of 100 Dams in Balochistan and Siraj Ahmed, Assistant
Project Engineer, Construction of 100 Dams in Balochistan, Irrigation Department,
Government of Baloc histan for Respondents (in C.Ps. Nos.1312 and 1348 of 2021).
Date of hearing: 22nd September, 2021.
JUDGMENT
NAEEM AKHTAR AFGHAN, CJ .----This common judgment disposes of C.Ps.
Nos.1312 and 1348 of 2021 as identical questions of facts and law are involved in both the
petitions.
2. Relevant facts of the case are that respondent No.2 (Project Director, Construction of
100 Dams in Balochistan, Package -IV-23 Dams) invited eligible Contracting Firms with
specific and above proven competence and experience in co nstruction of Dams to indicate
their interest by submitting applications with complete relevant documents for participation
in prequalification with stipulation that the Constructors registered with Pakistan
Engineering Council ('PEC') in category C -1 and above, C -2, C -3 and C -4 with the
specialization code of CEO4 (Dams) can obtain the prequalification documents.
3. In the publication dated 22.03.2021 published in Daily Jang Quctta dated 23.03.2021
for inviting applications from eligible Contracting Firms for prequalification, different
prerequisites to be fufilled by the Firms were mentioned by respondent No.2 with last date of
submitting applications as 08.04.2021 by 1:00 p.m.
4. The detail of 23 Dams of package -IV located in different districts of Baloch istan with
estimated cost is as follows:
Sr.No. Name of Sub -Project District Amount (Rs.
Million)
1a Churi Dam Barkhan 598.31
1b Turati Ughair Dam Barkhan 321.62
2 Jahandar Dam Barkhan 290.77
3 Seer Dam (Tomboo Area) Kohlu 1,117.03
4 4 Check Dams (Gogat
Area) Jhal Magsi 323.22
5 Kohar Dam Loralai 332.22
6a Nawar Dam Killa Saifullah 440.55
6b Dana AbdullahZai Zhob 105.43
7 Khrashang River Dam Ziarat 271.95
8 Nath Dhak Dam Musakhel 583.89
9 Tafoi Dam Nushki 626.75
10 Bholo Dam Chaghi 548.26
11 Balo Chap Dam Chaghi 543.63
12 Miskan Kaur Kech 213.80
13 Eaghdar Dam Panjgur 113.69
14 Sur Kaur Dam Gwadar 198.00
15 Karku/Laukh Dam Khuzdar 913.85
16 Ghumbazi Dam Shaheed Sikandarabad 668.93
17 Bale Gravity Dam Kalat 688.14
18 Zawa Dam Kalat 852.67
19 Darmin Dam (Basima
Area) Washuk 232.97
20 Kullan Dam Kharan 644.41
21 Kharrari Dam Lasbela 928.34
22 Passi Dam (Kanraj Area) Lasbela 651.94
23 Bahoo Dam Lasbela 229.83
5. The category of contractors licensed by Pakistan Engineering Council ('PEC') with
limit of construction cost of project (in million rupees) is as follows:
Constructor's Category Limit of Construction cost of Project (million
rupees).
C-A No limit
C-B Up to 4000
C-1 Up to 2500
C-2 Up to 1000
C-3 Up to 500
C-4 Up to 200
C-5 Up to 65
C-6 Up to 25
6. The petitioner M/s. Haji Ali Muhammad & Sons (in C.P. No.1348/2021) was
prequalified in category C -2 for Bholo Dam in district Chagai having cost of Rs.548.26
million and Balo Chap Dam in district Chagai having cost of Rs.543.63 million.
According to learned AAG assisted by respondent No.2, the petitioner Abdul Ghani
Khethran (in C.P. No.1312/2021) did not apply for prequalification.
7. It reveals that respondent No.2 wrote letter dated 05.08.2021 to Secretary
Government of Balochistan Irrigation Department (respondent No.1) devising strategy for
packaging of 10 Dams Iodated in four districts into four contracts on the basis of lessons
learnt in package -II and III in pursuance of clause 12(1)(b)(c) of the Balochi stan Public
Procurement Regulatory Authority Rules, 2014 (hereinafter "the Rules") improve the quality
of works keeping in view the geographical spread of the Dams within permissible limits
having no adverse effect on the quality in progress of the works w ith stipulation that the
remaining 15 Dams will be procured as individual sub -projects for which reputed contractors
below C -1 category can participate on the basis of their past performance and they will have
opportunity to enhance their technical capabil ities as well.
Approval of respondent No.1 was sought by respondent No.2 for packaging of 10
Dams with the following justifications:
Good reputable companies/firms having extensive technical skills/manpower, large
fleet machinery and with sound annual turnover will be attracted for bidding.
Good firms have the potential to deliver quality works on project scheduled time.
Firms having substantial liquid assets will carry on the construction activities even in
time of less project budget allocations.
The geographical spread of dams in district is within acceptable distances from each
other thereby allowing the firms to deploy their machinery and manpower
simultaneously of each dam site. The attached Google maps depict the distances,
location of dams and accessibility of dam sites in each contract/districts.
It has been experienced that the progress on around 30 -35% of the Package -Ill dam
have been affected/hampered due to the firm's weak technical and financial
capabilities and works are lagging far behind in the completion of projects despite
lapse of 4 years.
8. In response to above, respondent No.1 wrote letter dated 17.08.2021 to respondent
No.2 which reads as follows:
"Subject: CONSTRUCTION OF 100 DAMS IN BALOCHISTAN PACKAGE -IV (23
DAMS) -APPROVA L, OF MERGING OF 10 DAMS INTO FOUR
CONTRACTS.
The undersigned is directed to refer your office letter No.PDD/409 -11 dated 05 -08-
2021 and to say that proceed in the subject matter by strictly following all the relevant
applicable rules legal/codal formali ties and BPPRA Rules".
9. The estimated cost of 03 Dams of district Barkhan, 02 Dams of District Chagai, 02
Dams of District Kalat and 03 Dams of District Lasbella is as follows:
Name of Sub -Project District Amount (Rs. Million)
Churi Dam Barkhan 598.31
Turati Ughair Dam Barkhan 321.62
Jahandar Dam Barkhan 290.77
Bholo Dam Chaghi 548.26
Bak Chap Dam Chaghi 543.63
Bale Gravity Dam Kalat 688.14
Zawa Dam Kalat 852.67
Kharrari Dam Lasbela 928.34
Passi Dam (Kanraj Area) Lasbela 651.94
Bahoo Dam Lasbela 229.83
As a result of packaging/merging of 10 Dams of the above four districts into four
contracts by the respondents, the following position emerged with regard to the estimated
cost of 03 Dams of District Barkhan, 02 Dams of District Chagai, 02 Dams of District Kalat
and 03 Dams of District Lasbella:
Sr.No. Name of Procurement District Estimated Cost (Rs)
1 Construction of Churi Dam,
Turati Ughair Dam and
Jahandar Dam Barkhan 1,210,700,000.00
2 Construction of Bholo Dam
and Balo Chap Dam Chagai 1,091,890,000.00
3 Construction of Bale Gravity
Dam and Zawa Dam Kalat 1,540,810,000.00
4 Construction of Kharrari Dam,
Passi Dam (Kanraj Area) and
Bahoo Dam Lasbella 1,810,110,000.00
10. In pursuance of the above, the Procurement Committee Prepared prequalification
summary sheet which reveals that out of 122 Construction Companies, 08 Construction
Companies of C -1 category and 45 Construction Companies of C -2, C-3 and C -4 category
were prequalified to submit tenders for the Dams of package -IV.
11. After packaging/merging of 10 dams of four districts into four contracts, the
respondent No.2 issued notice dated 27.08.2021 to all the prequalified contractors inviting
tenders/invitation to bid with the following details:
Sr.No. Name of Procurement District Estimated Cost (Rs)
1 Construction of Churi
Dam, Turati Ughair Dam
and Jahandar Dam
(TS186858E) Barkhan 1,210,700,000
2 Construction of Seer Dam
(Tomboo Area)
(TS186859E) Kohlu 1,117,030,00
3 Construction of 4 Check
Dam (Gogat Area)
(TS186860E) Jhal Magsi 323,220,000
4 Construction of Kohar
Dam (TS186862E) Loralai 332,570,000
5 Construction of Nawar
Dam (TS186863E) Killa Saifullah 440,550,000
6 Construction of Dana
Abdullah Zai (TS186864E) Zhob 105,430,000
7 Construction of Khrashang Ziarat 271,950,000
River Dam (TS186865E)
8 Construction of Nath Dhak
Dam (TS186866E) Musakhel 583,890,000
9 Construction of Tafoi Dam
(TS186867E) Nushki 626,750,000
10 Construction of Bholo
Dam and Balo Chap Dam
(TS186868E) Chagai 1,091,890,000
11 Construction of Misak kaur
(TS186869E) Kech 213,800,000
12 Construction of Baghdar
Dam (TS186870E) Panjgur 113,690,000
13 Construction of Sur Kaur
Dam (TS186871E) Gwadar 198,000,000
14 Construftion of
Karku/Laukh Dam
(TS186872E) Khuzdar 913,850,000
15 Construction of Ghumbazi
Dam (TS186873E) Shaheed
Sikandarabad 668,930,000
16 Construction of Bale
Gravity Dam and Zawa
Dam (TS186874E) Kalat 1,540,810,000
17 Construction of Darmin
Dam (Basima Area)
(TS186875E) Washuk 232,970,000
18 Construftion of Kullan
Dam (TS186876E) Kharan 644,410,000
19 Construction of Kharrari
Dam, Passi Dam (Kanraj
Area) and Bahoo Dam
(TS186877E) Lasbella 1,810,110,000
12. Packaging/merging of 10 Dams of four districts into four contracts by the respondents
has been challenged by the petitioners by filing the instant constitution petitions before this
Court.
In C.P. No.1312 of 2021 the spetitioner has claimed the following relief:
"It is therefore, respectfully prayed that it may kindly be declared that without any
lawful plausible justification and reason combining 3/4 dams at S.Nos.1, 10, 14, 16
and 19 of the Tender Notice dated 27 -8-2021 by making it one unit for construction is
illegal, unlawful, mala fide, unfair and against the constitutional mandate, therefore
the letter No. PDD/775, dated 27 -8-2021 issued by the respondent No.2 may kindly
be cancelled and direction may kindly be issued to the respondent No.2 to re -tender
the same by announcing the construction of Dam separately for fair and transparent
competi tion, with any other relief which may deem fit and appropriated to this
Hon'ble Court may kindly be awarded, in the interest of justice."
In C.P. No. 1348/2021 the petitioner has claimed the following relief:
"It is accordingly respectfully prayed that th is Hon'ble Court may be pleased to
declare that the void notice dated 27 -08-2021, scheduled pre bid meeting (Package -
IV, 23 Dams) pre -Qualification issued to the petitioner/contractor for Construction of
100 Dams in Balochistan has been scheduled by respon dent No.2 on 20th September
2021, at 1:00 P.M to oust the contractor of category C -2, C-3 and C -4 and to favour
the contractors of category C -1 which is highly unwarranted and uncalled for and
same is based on mala fide (SIC) causing grave prejudice and in justice to the
petitioner and against the rules which are contrary to facts and law against the rules
regulation and norms of justice and want to lose the provincial Government the same
may be cancelled and the official respondents be directed to assign th e both
construction works to petitioner, with any other relief and cost of the petition
throughout, in the interest of justice."
13. While admitting C.P. No.1312/2021 for regular hearing on 07.09.2021, the
respondents were restrained from conducting the pr e-bid meeting with the prequalified
contractors which was scheduled for 10.09.2021 and the respondents were also restrained
from taking any further steps with regard to the tendering process of 23 Darns of package -IV
till the next date. The interim order w as further extended by this Court on all the subsequent
dates.
14. In order to avoid further complications as well as multiplicity of litigation, on
17.09.2021 the respondents were restrained from opening financial bids of 23 Dams of
package -IV on the date already fixed i.e. 20.09.2021 with directions that same shall not be
opened till further orders by this Court. This interim order was also further extended by this
Court on subsequent dates.
15. Both the petitions have been contested by respondents Nos.1 and 2 by filing joint
counter affidavit in C.P. No.1312/2021 with request to consider the same as their counter
affidavit in connected C.P. No.1348/2021.
16. In their counter affidavit, it has been contended by respondents Nos.1 and 2 that the
petitioners have the alternate remedy of approaching the Complaint Redressal Committee
and Procurement Review Committee under Rules 56 and 56 (A) of the Rules for redressal of
their grievance; the petitioner in C.P. No.1312/2021 does not fall within the definition of an
aggrieved person as he did not apply for prequalification; 53 Construction Companies were
prequalified for further participation in the bidding process; the Procurement Agency is well
acquainted with the challenges of the project to be executed and are at liberty to formulate
the conditions for procurement; Dams in one district have been grouped as one project for its
speedy/on time completion; packaging/grouping criteria is supported by Rule 12 of the
Rules; 15 Dams out of 23 Dams are falling outside th e package criteria and the Construction
Companies of C -2, C -3 and C -4 categories are competent to participate in the bid of 15
Dams; four packages have been established by placing Dams of same district in one unit
enabling the contractors of category C -1 to participate in the bid having sound reputation,
skill and extensive technical staff, large fleet of machinery, potential to deliver quality work
and having sound liquid assets which may not only guarantee the quality and timely
completion of the projects on one hand, but on the other hand to carry the construction
activities at times when the project is in financial constraint.
17. After hearing learned counsel for the petitioners and learned AAG assisted by
respondent No.2, we have perused the available record and have gone through the relevant
Rules.
Rules 12, 13 and 37 of the Rules, being relevant, are reproduced herein below;
12. Limitation on Splitting or Regrouping of Proposed Procurement. -
(1) The Procuring Agencies shall not split or package a procurement plan with the
intention to shorten or facilitate the procurement process and approval mechanism,
unless the procuring agency is satisfied that:
a. block acquisition of goods, services or works will unnecessarily hold up available
resources;
b. technical reasons indicate that splitting or packaging will improve quality;
c. The impact of weather, geographical spread on certain procurement particularly in
case of works contract will affect its execution with regard to quality and delivery
schedule.
d. An emergency exists as defined in rule 2(o).
Provided that any splitting or packaging shall be made part of the revised
procurement plan and uploaded on the Authority's website as well as on the website
of the procuring agency, if functional.
(2) The annual or longer rolling plan, as the case may be, thus prepared, will be
posted in advance on the Authority's website as well as on website of the Procuring
Agency, in case the Procuring Agency has its own website
13. Specifications. ---(1) Specification s shall allow the widest possible competition
and shall not favour any single contractor or supplier nor put others at a disadvantage.
Specifications shall be generic and shall not include references to brand names, model
numbers, catalogue numbers or simi lar classifications. However, if the Procuring
Agency is convinced that the use of a reference to a brand name or a catalogue
number is essential to complete an otherwise incomplete specification, such use or
reference shall be qualified with the words or equivalent?
(2) Procurement of used or reconditioned equipment, plant or machinery is not
permissible in any case whatsoever:
Provided that this rule shall not apply to procurement made by public sector
commercial concerns on the demand of private sector client specifying, in writing, a
particular brand, model or classification of equipment, machinery or other objects.
37. Discriminatory and difficult conditions.
Save as otherwise provided, no Procuring Agency shall introduce any condition which
discrim inates amongst bidders. In ascertaining the discriminatory nature of any
condition reference shall be made to the ordinary practices of that trade,
manufacturing, construction business or service to which that particular procurement
is related".
18. Packag ing/merging of 10 Dams of four districts into four contracts has resulted into
enhanced estimated cost making Construction Companies/Firms of category C -1 eligible for
prequalification and submitting tenders/bids for the same and depriving Construction
Com panies/Firms of C -2 and C -3 category of their eligibility to prequalify and to submit
tenders/bids.
The above criteria/strategy adopted by the respondents for packaging/merging of 10
Dams of four districts into four contracts in the garb of Rule 12 of the Rules is abuse of
powers and it amounts to discriminatory procurement which is unwarranted under Rule 37 of
the Rules.
19. Rule 37 of the Rules (reproduced in para -17 supra) discourages the condition/strategy
which discriminates amongst the bidders.
20. The past experience alleged by the respondents in their counter affidavit with regard
to works of package -III Dams, which has not been supported by any document, cannot be
held as a basis for packaging/merging of 10 Dams of four districts into four contract s in the
garb of Rule 12 of the Rules.
21. It transpires that the Dams situated within a district are at a distance of more than 30 -
kilometers from each other and as such there is no justification for the respondents to
package/merge the same on the pretext of improving quality of work and delivery schedule.
22. The packaging/merging of 10 Dams of four districts into four contracts by
respondents is also violative of Rule 13 of the Rules (reproduced in para -l7 supra) which lays
down for specifications allowing widest possible competition and it does not provide for
favouring single category of Construction Company/Firm by putting the others at a
disadvantage.
23. The packaging/merging of 10 Dams of four districts into four contracts prima facie
reveal of mala fide of the respondents to facilitate the Construction Companies/Firms of C -1
category for prequalification/tendering and to deprive the Construction Companies/ Firms of
C-2 and C -3 category from prequalification and participating in the tenders/bi dding process.
24. The respondents, being public functionaries are obligated to act justly, fairly,
equitably, reasonably, without any element of discrimination and squarely within the
parameters of law.
Substantial deviation by the respondents, being pub lic functionaries, in the
procurement process can be corrected through appropriate orders by this Court in exercise of
constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 (hereinafter "the Constitution"). Reliance in this regard is placed on the case
of Airport Support Services v. Airport Manager, 1998 SCMR 2268.
25. According to settled principles of law, public exchequer should not be made to suffer
due to exercise of powers by public functionaries in an arbitrary and unreasonable manner
giving extra favour to one party at the cost of others.
The contracts carrying elements of public interest have to be just, fair, transparent,
reasonable and free from any taint of mala fides and all such aspects are alw ays open for
judicial review by this Court in exercise of constitutional jurisdiction under Article 199 of
the Constitution on the touchstone of reasonableness, fair play, natural justice, equality and
non-discrimination.
Reliance in the above regard is p laced on the case of Muhammad Afzal v. Shahzad
Asghar Dar, 2003 SCMR 280.
For the above reasons, the packaging/merging of 03 Dams of district Barkhan, 02
Dams of district Chagai, 02 Dams of district Kalat and 03 Dams of district Lasbella into four
contrac ts by the respondents is declared null, void and of no legal effect.
The prequalification summary prepared by the respondents/ Procurement Committee
prequalifying Construction Companies/ Firms of C -1 category for the 10 Dams of four
districts packed /merg ed into four contracts is also declared null, void and of no legal effect.
Since financial bids submitted by Construction Companies/ Firms of C -1 category for
the 10 Dams of four districts packed /merged into four contracts by the respondents have not
been opened till date due to interim order passed by this Court, therefore the bidding process
of the 10 Dams of four districts which were packed/merged into four contracts by the
respondents is hereby cancelled.
The respondent No.2 is directed to issue noti ce inviting tenders/invitation to bid to all
the already prequalified Construction Companies/Finns/JVs of category C -2 and C -3 to
participate in the bidding process for 03 Dams of district Barkhan, 02 Dams of district
Chagai, 02 Dams of district Kalat and 03 Dams of District Lasbella as ten different sub -
projects of package -IV with sufficient time/a new date and time for submitting scaled filled
in bidding documents and opening thereof and with a new date of pre -bid meeting.
The respondents are further dir ected to proceed with the bidding process and to
finalize the same in accordance with Rules.
Both the petitions are disposed of in the above terms.
MH/168/Bal. Order accordingly.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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