' AMIR HANI MUSLIM, J.---Through this petition the petitioner has prayed for following reliefs:--
(i) Permanently restrain the respondents from awarding the contract to Messrs Energy Saving Solutions Inc, or to any other party till the disposal of this petition.
(ii) Declare the Letter of Intent, if issued to Messrs Energy Saving Solutions Inc., as unlawful and hence of no legal effect.
(iii) Direct the respondents to call for a post bid meeting to enable the petitioners to explain their proposal and then consider the proposal of the petitioners along with that of Messrs Energy Saving Solutions Inc. In a transparent manner and thereafter proceed with the issuance of Letter of Intent to the successful party.
(iv) Grant any other or better relief(s), which this Honourable Court may deem fit, proper under the circumstances of the case."
2. The facts as they appear from the pleadings of the parties are that the respondent No,1 invited "Expression of Interest" in respect of procurement, installation, testing and commissioning of 30-40 MW independent power plant for Karachi Water and Sewerage Board's Water Pumping Station at Dhabeji. Besides the petitioners, the respondent No,3, Messrs Energy Solutions Inc. And others submitted their expression of Interest for the said power project. The petitioners were declared pre- qualified for the bid of power project.
3. On completion of process the petitioners learnt that the respondent No,1 had short-listed the remaining bidders except the petitioners and respondent No,3. The petitioners claim to have submitted their bid with necessary documents. The bid documents of the petitioners as well that of the respondent No,3 was referred to the Consultant "NESPAK" for evaluation. Subsequent thereto the respondent No,3 was awarded contract, which is impugned in these proceedings.
4. It was contended by the learned counsel for the petitioners that the award of the contract to respondent No,3 lacks transparency as the guidelines given under the terms of the bid were not followed by the respondent No,
1. His next contention was that the petitioner was the lowest bidder and was entitled to the award of contract but in spite of the same the contract was awarded to respondent No,3 by the respondent No,1 without convening the post bid meeting. It was contended by the learned counsel that under paragraph 6.7(a) of the guidelines, it was provided that subsequent to the detailed evaluation of the proposal, the respondent No,1 may develop order on merit on the basis of evaluation criteria for detailed negotiations with a view to agreeing with one sponsor, acceptable terms for undertaking the project. The learned counsel for the petitioners also submitted that specific clauses of post bid process were completely overlooked by the respondent No,1, while awarding the contract to the respondent No,3. According to the learned counsel the respondent No,1 did not hold any post bid negotiation to develop an order on merit and issued letter of intent to the respondent No,3 arbitrarily on the basis of NESPAK's recommendations. He submitted that the post bid meeting in terms of paragraph 6.7(a) was obligatory and non-holding such a meeting shows lack of transparency in the process and as such the award of contract in favour of respondent No,3 be declared nullity.
5. As against this, Mr. Abrar Hassan, the learned counsel for the respondent No,1, filed counter- affidavit disputing the lack of transparency as alleged by the petitioners. Mr. Abrar contended that the petition, which is in the nature of mandamus, was not maintainable, in law, as according to him mere participation in the bid does not give any legal right to the petitioners to challenge award of contract by invoking constitutional jurisdiction. In support of his contention he has relied upon the cases reported in 1971 SCM R 533; 1973 SCM R 342; 1974 SCM R 337; 1997 CLC 1288 and 2005 SCM R
445. His next contention was that the NESPAK, as consultants of the project, were required to evaluate the bids by examining technical and financial aspects. He submitted that after the bid documents were submitted, the NESPAK sought post bid clarifications from the parties whereafter the Committee evaluated the bids and found the respondent No,3 more appropriate to award the contract after scrutinizing the technical/financial aspects. According to learned counsel there is no material placed on record by the petitioners to reach a finding of lack of transparency on the part of the respondent No,1.
6. We have heard the learned counsel and have perused the record. In regard to the maintainability of the petition, we with profound respect do not agree with the contentions of the learned counsel for the respondent No,1 that the bidder does not have a legal right to (sic) the award of contract in all circumstance's. If action of the public functionary awarding the contract lacks transparency, writ of mandamus would lie. In this regard we are fortified by the judgment of this Court in the case of Pacific Multinational (Pvt.) Limited v. I.-G. Police reported in PLD 1992 Karachi. 283, where this Court has held that State has a constitutional obligation to act fairly when performing an administrative function and in case if a party complains before the Court that the State, while awarding a contract to a party has acted in an unfair or arbitrary manner or has discriminated against one of the parties which contested for the award of the contract, such grievance can be gone into by the superior Courts, in exercise of its powers of judicial review under Article 199 of the Constitution and if the Court is satisfied that the Government while entering into a contract has acted arbitrary or in an unfair manner or has discriminated between the parties before it in matter of awarding the contract, it can interfere and strike down such action. Two of the judgments of the Honourable Supreme Court cited by the learned counsel for the respondent No,1 were noticed by the learned Division Bench of this Court while giving the aforesaid findings. Mr. Abrar Hassan, when confronted with this judgment concedes that right to file a petition for issuance of writ of mandamus is available if it is shown that the action of the State or the public functionary lacks transparency while awarding the contract.
7. Now we come to the merits of the case. Admittedly NESPAK was appointed consultants of the project w-th the power to evaluate the bids on technical as well as financial side. The evaluation report of NESPAK reflects that post bid explanations were sought from the parties and after examining their explanations NESPAK had scrutinized the bid documents on technical and financial side and recommended award of contract to the respondent No,3. The grievance of the learned counsel that the contract could only have been awarded after the post bid meeting is held in terms of paragraph 6.7(a of the Guidelines and non-following of this term would vitiate the award of contract to the respondent No,3.
8. We have carefully perused paragraph 6.7(a) of the Guidelines. The word used in the para. Is "may" which does not make it obligatory on the part of the respondent No,1 to hold post bid meeting with the contesting parties. The respondent No,1 has rightly relied upon the evaluation report, which deals with all the aspects and opinion of the respondent No,1 after the evaluation report of the Committee by holding post bid meeting was insignificant for want of technical expertise. The report of the Evaluation Committee runs into 50 to 60 pages and each and every aspect of the bid documents submitted by the parties were examined. Mere non-inviting the petitioners for post bid meeting therefore, would not nullify the recommendations of the Evaluation Committee. Even otherwise, the nature of the terms contained in the bid are procedural/ directory in nature and would in no way be termed as mandatory in nature to nullify the award of contract in favour of the respondent No,3. Projects of the nature are dependent on the expertise and the professionalism which can only be examined by the experts. In the present case the NESPAK which has sufficient experience in such projects once recommended award of contract in favour of respondent No,3 this Court in writ of mandamus would not nullify such award of contract for want of compliance of the terms which, ex facie, are procedural in nature and have no substantial bearing on the award of the contract.
' For the aforesaid reasons we do not find lack of transparency in the award of contract to the respondent No,3, and therefore, had dismissed the petition along with the listed application by our short order dated 22-11-2005.