2025 M L D 1616
[Balochistan]
Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ
M/s NASAR ENTERPRISES through attorney---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Services and General
Administration Department, Government of Balochistan and 2 others---Respondents
Constitution Petition No. 483 of 2024, decided on 25th September, 2024.
(a) Constitution of Pakistan ---
----Art. 199---Baluchistan Public Procurement Rules, 2014, R. 48---Procurement process,
challenge to----Past and closed transaction---Constitutional petition---Meintability---
Record revealed that six firms, including the petitioner's firm, participated in the bidding
process, however, three of them were declared non-responsive in technical bidding
evaluation; later, the financial bids of technically qualified bidders were opened and
respondent/firm, being the lowest bidder, was declared successful and the Work Order was
issued to respondent/ firm, who delivered the required items/goods and after the
inspection report, a completion certificate was issued to respondent /firm---Thus, the
procurement process has been completed and the process is past and closed transaction,
which cannot be re-evaluated in a constitutional petition---Constitutional petition, filed by
non-responsive/unsuccessful bidder firm, was dismissed, in circumstances.
(b) Baluchistan Public Procurement Rules, 2014 ---
----R.32(1)---Procurement process, challenge to---Scope---Objection of petitioner (un-
successful bidder firm) regarding change of criteria in the bidding documents---Validity---
As per R.32(1) of the Baluchistan Public Procurement Rules, 2014 ('the Rules, 2014'), an
interested bidder, who obtained the bidding documents, may request for clarification of
the contents of bidding documents in writing at least five (05) calendar days prior to the
opening of the bid, but the petitioner did not file such application to
respondent/Baluchistan Public Procurement Regulatory Authority within the stipulated
period, as such, the objection of petitioner regarding clarification or change of criteria in
the bidding documents is not sustainable--- Constitutional petition , filed by non-
responsive/unsuccessful bidder firm, was dismissed, in circumstances.
National Institution Facilitation Technologies (Pvt.) Limited through duly Authorized
Officer v. The Federal Board of Revenue through Chairman and 7 others PLD 2020
Islamabad 378 ref.
(c) Constitution of Pakistan ---
----Art. 199 ---Baluchistan Public Procurement Rules, 2014, R. 56 (1)---Constitutional
petition---Meintability---As per appended documents, though the petitioner (unsuccessful
bidder) filed a complaint under R.56 (1) of the Rules 2014, however, the same was filed
after the delay of fifty-six (56) days, therefore, the Grievance Redressal Committee (GRC)
did not entertain the complaint---Thus, the objection of mis-procurement in the
constitutional petition is not maintainable---Constitutional petition, filed by non-
responsive /unsuccessful bidder firm, was dismissed, in circumstances.
Kaleemullah Quresh for Petitioner.
Arbab Nasruminallah, A.A.G for Respondent No. 1.
Muhammad Naeem Marri for Respondent No. 2.
Proceeded against ex-parte on 28.08.2024 for Respondent No. 3.
Date of hearing: 18th September,2024.
JUDGMENT
SARDAR AHMED HALEEMI, J.--- The instant Constitution Petition carries the
following relief:
"It is most respectfully prayed that the above stated contentions and submissions, and
rebuttals may kindly be considered by way of allowing this instant constitutional
petition as there are valid reasons and grounds for its admission, furthermore, the
illegality and unlawfulness which have been committed in the procurement process by
the authority and procuring agency which has (sic) led the entire procedure towards
the misprocurement thus, this Honorable Court is pleased to declare the entire
tendering and bidding process/ procurement process as null and void further they may
be directed to re-invite transparently and fairly, in so far as necessary to meet at the
ends of the Justice and Equity".
2. Succinct facts leading to the instant Constitution Petition are that respondent No.1
invited a tender through publication and uploaded on the website of official respondent No.2
vide PRQ No.1326 dated 12.01.2024 in respect of "Procurement of Uniform for Entitled
Staff of S&GAD". In pursuance whereof, the petitioner's firm participated and filed his bid
documents coupled with required particulars on the website of the authority through e-
bidding. The deadline for submission of documents was on 29.01.2024 at 12:00 P.M. and all
the bidding documents were opened on the same date at 01:00 P.M on the EPPS system. The
technical bids of participated figures were opened and the petitioner was declared non-
responsive on the strength that the firm had "Sales Tax Registration as Wholesaler only", and
after the evaluation of financial bidding documents, M/s. NFK Traders, Quetta (respondent
No.3) was declared the successful bidder, which according to the petitioner is an utter
violation of Baluchistan Public Procurement Regulatory Authority Rules, 2014 ("Rules,
2014"), and amounts to mis-procurement. The petitioner filed several applications and lastly
filed a complaint to the Grievance Redressal Committee, but the fate of the same was not
decided by the competent authority.
3. On 03.04.2024, notices were issued to respondent No.3. In pursuance whereof,
respondent No.1 filed para-wise comments with appended documents and took the stance
that the petitioner did not file objections on the terms of tender appeared in the advertisement
as per Rule 32 (1) of the Rules, 2014 within the stipulated period. The petitioner and two
other bidders namely M/s. Ghaznavi Contractors and M/s. AK Askari International were
declared non-responsive in technical bidding evaluation, whereas, M/s. Haji Syed Ahmed
Raza and Sons and M/s. NFK Traders Quetta (respondent No.3) and M/s. Syed Muhammad
and Sons were declared technically eligible. On 14.03.2024, the financial bids of technically
qualified bidders were opened and respondent No.3 being the lowest bidder was declared
successful. On 22.03.2024, the Work Order was issued to respondent No.3 who delivered the
required summer and winter uniforms, which were distributed among the entitled staff of
S&GAD, and the exercise was completed.
4. Respondent No.2 filed his para-wise comments and stated that the bidding process
was evaluated by the procurement agency and the authority had no role in the procurement
process.
5. On 28.08.2024, the notice of respondent No.3 was served through respondent No.1,
but despite service of notice and repeated calls, there was no appearance on behalf of
respondent No.3, as such, respondent No.3 proceeded against ex-parte.
6. Learned counsel for petitioner inter alia contends that the procurement agency had
violated the provisions of Rule 27 of the Rules, 2014 as the evaluation criteria has been
changed and the petitioner was declared as non-responsive on account of "Sales Tax
Registration as Wholesaler only", which was not particularly mentioned in the tender notice,
thus, it amounts to mis-procurement; that the complaint filed by the petitioner has not been
decided by the Grievance Redressal Committee nor the applications filed before respondent
No.2. Lastly, prayed to declare the process null and void and procedure as mis-procurement.
In support of his contentions, learned counsel for the petitioner relied upon the cases of Suo
Motu Case No.5 of 2010 (PLD 2010 SC 731), Hafiz Muhammad Aleem v. Lahore
Development Authority through Director-General and 4 others (2012 YLR 1426), Ch. Ata-
ur-Rehman Qadri v. Capital Development Authority and others (2016 CLC 125), Messers
New Era Technologies (Private) Limited through Chief Executive Officer, Lahore v.
Province of Punjab through Chief Secretary, Lahore and others (2019 CLC 1128) and
Gemalto Middle East FZ-LLC v. Federation of Pakistan through Secretary, Finance Division,
and others (2020 CLD 151).
7. Conversely, learned AAG assisted by the learned Legal Advisor for respondent No.2
controverted the contentions of learned counsel for the petitioner and argued that the
procurement process had been completed and the instant petition had become infructuous;
the petitioner did not challenge the tender uploaded on the website under the Rules, 2014
within the stipulated period, as such, the question of mis-procurement did not arise and lastly
prayed for the dismissal of the instant petition.
8. We have heard the learned counsel for the parties and scanned the entire record.
9. It is the grievance of the petitioner that the petitioner's firm has been declared as non-
responsive on account of "Sales Tax Registration as Wholesaler only" in the technical bid,
which criteria was not mentioned in the tender/notice advertised in the newspapers and
uploaded on the website of official respondent No.2, as such, the procurement process by the
authority amounts to mis-procurement and declared to be null and void. A perusal of the
record reveals that respondent No.1 invited tender for "Procurement of Uniform for Entitled
Staff of S&GAD" through advertisement No.PRQ-1326 dated 12.01.2024 and uploaded the
same on the website of respondent No.2 based on the Single Stage two Envelope Bidding
Process. The deadline for submission of bidding documents was on 29.01.2024 at 12:00 P.M.
and technical bids were opened on the same date at 01:00 P.M. As per record, six (06) firms
including the petitioner's firm participated in the bidding process. On 29.01.2024, the
petitioner included M/s. Ghaznavi Contractors and M/s. AK Askari International were
declared non-responsive in technical bidding evaluation, whereas, M/s. Haji Syed Ahmed
Raza and Sons and M/s. NFK Traders Quetta (respondent No.3) and M/s. Syed Muhammad
and Sons were declared responsive. On 14.03.2024, the financial bids of technically qualified
bidders were opened and respondent No.3, being the lowest bidder was declared successful.
On 22.03.2024, the Work Order was issued to respondent No.3, who delivered the required
items/goods and after the inspection report, a completion certificate dated 17.04.2024 was
issued to respondent No.3.
10. As per Rule 32 (1) of the Rules, 2014, an interested bidder, who has obtained the
bidding documents, may request for clarification of the contents of bidding documents in
writing at least five (05) calendar days prior to the opening of the bid, but the petitioner did
not file such application to respondent No.2 within the stipulated period, as such, the
objection of petitioner regarding clarification or change of criteria in the bidding documents
is not sustainable. Reliance in this regard is placed in the case of National Institutional
Facilitation technologies (Pvt). Limited through dully Authorized Officer v. The Federal
Board of Revenue through Chairman and 7 others (PLD 2020 Islamabad 378), wherein it has
held as under:
70. It is well settled that equity does not relieve a party from the consequences of its own
negligence. This Court, while exercising equitable jurisdiction cannot countenance the
decision of the G.R.C to permit a bidder to correct errors in its financial bid after all the
bids have been opened and the evaluation report has been issued. If modifications in
financial bids are allowed after the results of the biding were made known, frauds
innumerable could be perpetrated against procuring agencies as well as other bidders and
our system of competitive biding would be placed in jeopardy and would loss stability. It
would encourage slipshod bidding and would afford a pretext for unscrupulous bidder to
prey on the public. After bids have been opened, a bidder is bound by his error or mistake
and is expecting to bear the consequences of it. In case of West Bengal State Electricity
v. Patel Engineering Co. Ltd. (AIR 2001 SC 682), it was held as follows:
"In a work of this nature and magnitude where bidders who fulfill pre-qualification
alone are invited to bid, adherence to the instructions cannot be given a go-bye by
branding it as a pedantic approach otherwise it will encourage and provide scope for
discrimination, arbitrariness and favoritism which are totally opposed to the Rule of
law and our Constitutional values. The very purpose of issuing Rules/instructions is to
ensure their enforcement lest the rule of law should be casualty. Relaxation or waiver
or a rule or condition, unless so provided under ITB, by the State or its agencies (the
appellant) in favor of one bidder would create justifiable doubts in the minds of other
bidders, would impair the rule of transparency and fairness and provide room for
manipulation to suit the whims of the State agencies in picking and choosing a bidder
for awarding contracts as in the case of distributing bounty or charity".
11. Now coming to the next moot question as to whether the petitioner approached the
Chairman Grievance Redressal Committee (GRC) by filing an appeal under Rule 56 (1) of
the Rules, 2014. As per appended documents, on 25.03.2024, the petitioner filed a complaint
under Rule 56(1) of the Rules, 2014, which was filed after the delay of fifty-six (56) days,
therefore, the GRC did not entertain the complaint, therefore, the objection of mis-
procurement process in the writ petition is not maintainable.
12. Apart from above, the procurement process has been completed and the process is
past and closed transaction, which cannot be re-evaluated in the writ petition.
The judgments referred to and relied upon by the learned counsel for the petitioner are
not akin to the facts and circumstances of the instant matter.
For the above reasons, Constitution Petition No.483 of 2024, being bereft of merits, is
dismissed with no order as to cost.
MQ/133/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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