SARMAD JALAL OSMANY, J.- Briefly stated the facts of the matter per the petitioner, are that KWSB (respondent No. 1) had invited bids for the construction of certain civil works being water supply and sewerage projects in Karachi to which three concerns responded viz. The petitioner and' respondents Nos. 2 and 3. When the bids were opened it was found that the petitioner was the lowest. However, the officers of KWSB started negotiations with the respondent No' 2 regarding the project, and hence the petition with the prayer, inter alia, that the petitioner being the lowest bidder is entitled to be awarded the contract for the project in question.
2. On the basis of the foregoing facts, Mr. Khalid Javed has submitted that per settled law, the lowest bidder does not automatically become entitled to obtain the contract in question, yet he does have a legitimate expectancy for this purpose. Hence, Where this is refused, the onus remains on the department to establish bona fide and tangible grounds for doing so. In this connection, learned counsel has submitted that all Government functionaries are to exercise their powers reasonably, justly and bona fidely. However, insofar as the present case is concerned, this does not appear to have been done as in the counter-affidavit filed by KW&SB, extraneous/frivolous reasons are cited for not having awarded the contract to the petitioner viz. The petitioner's representative created, a law and order situation on the tender opening date as he had fought with the representative of respondent No. 3; that the petitioner did not timely produce a licence from Pakistan Engineering Council for the year 2006 and finally that such certificate did not show that the petitioner was qualified for undertaking the project in question. Per learned counsel none of these conditions are relatable to the instructions to tenderers contained in the tender documents.
Regarding the first allegation of the petitioner's representative having created a law and order situation, per learned counsel, there is no evidence of such incident. Secondly, insofar as the delay in renewal of petitioner's licence with the Pakistan Engineering Council is concerned, this is entirely due to KWSB as it did not send the petitioner's performance evaluation report to the council in time.
Finally, learned counsel has referred to the licence itself which does show that the petitioner is qualified to carry out water and sewerage works. Hence, per leamed counsel, the procedure for the bid evaluation and the ultimate award of the contract to the respondent No. 2 whose bid is admittedly higher than that of the petitioner is not transparent and hence justiciable on the touchstone of Section 24-A of the General Clauses Act, which enjoins all public functionaries to act fairly, bona finely and in accordance with the law as well as Articles 4 and 25 of the Constitution.
Furthermore, per learned counsel, the petitioner has performed satisfactorily on other projects of KW&SB. In support of his contentions learned counsel has relied upon: Balochistan Construction Company Vs. Port Qasim Authority (2001 SBLR 661), Haqbahoo Corporation Vs. PI A (PLD 2003 Kar.
369), Kay Bee International (Pvt.) Ltd., Islamabad Vs, Secretary to the Government of Punjab, Industries and Mineral Development Department (PLD 2002 SC 1074), Rashid Mahmood vs. Administrator District Council (PLD 1997 Lah. 407), Katat Press Vs. Secretary, Education Department, Government of Balochistan (1998 CLC 833), M/s. Pacific Multinational (Pvt.) Lid. \/s. I.G. Police, Sindh and others (PLD 1992 Kar. 283) and Owaisco Vs. Federation of Pakistan (PLD 1999 Kar. 472).
3. Mr. Abrar Hassan appearing for KWSB submitted that the bid of the petitioner was rejected for the reasons given in para. 10 of the counter-affidavit filed by the KWSB as it did not meet the requirements of the instruction to tenderers i.e. Failure to submit a licence from Pakistan Engineering Council and current litigation details etc. Furthermore, per learned counsel, one of the prayers in the petition is a direction from this Court to award the contract to the petitioner which is in the nature of a mandamus and which implies the existence of a legal right. No such right has been established by the petitioner since mere participation in the tender does not amount to the same, In support of this submission learned counsel has relied upon Munshi Muhammad Vs. Faizpnul Haq (1971 SCMR 533), Parvez Qureshi Vs. Settlement Commissioner, Multan and Bahawalpur Divisions (1974 SCMR 337) and Al-Abbas Sugar Mills Vs. M.D. Karachi Water and Sewerage Board (2006 SBLR 611).
4. Ml Raja Qureshi has supported the arguments of Mr. Abrar Hassan. Learned counsel has also taken us through the instruction to tenderers filed alongwith the petition and submitted that the most import provision therein in Clause IT 28, which concerns the evaluation and comparisons of tenders etc. And Clause IT 29.11 which provides that only the offer of those tenderers who are substantially responsive to the tender documents would be considered. Per learned counsel poor performance in other projects, involvement in litigation with the Government etc., were some of the factors which went against the petitioner. Furthermore, learned counsel submitted that according to the licence of the petitioner its field of specialization was hot in the area of water and sewerage works and hence on this ground alone it was not qualified. Consequently, where the petitioner was not considered and the third bidder did not respond, this only left the respondent No. 2 in the field who was asked to match the lowest bid and he offered Rs. 38.5 Crores and Rs. 11.9 Crores respectively which was accepted. According to learned counsel the tender evaluation process was quite transparent, bona fide and in accordance with the rules and regulations as well as the tender documents. Hence, there is no question of any mala tides or discrimination etc., as alleged. Further per learned counsel, mere participation in the tender, does not give any vested right to the petitioner to invoke the writ jurisdiction of this Court, in which event the prayers in the petition whereby declarations are sought that the contract should be awarded to the petitioner being the lower bidder etc., are not sustainable, In support of his submissions learned counsel has relied upon: Abid Hassan Vs. PIAC (2005 SGMR. 25), Asadullah Mangi t/s. Pakistan International Airlines Corporation (2005 SCMR 445), Parvez Qureshi Vs. Settlement Commissioner, Multan and Bahawalpur Divisions (1974 SCMR 337), Rehmat Ati Vs. The Revnue Board, West Pakistan, Lahore (1973 SCMR 324), Munshi Muhammad Vs. Faizuddin Haq (1971 SCMR 533), Meraj Din Vs. ' Noor Muhammad (1970. SCMR 542), Balochistan Construction Company Vs. Port Qasim Authority (SBLR 2001 Sindh 661), M/s. Iris Rist Technologies (Pvt.) Ltd. Vs. Government of Punjab (PLD 2006 Lah. 198), M/s. Pacific Multinational (Pvt.) Ltd. Vs. Inspector General of Police Sindh Police (PLD 1992 Kar. 283) and Fawwad & Fareen Enterprise Ltd. Vs. Director of Industries Government of Sindh (PLD 1983 Kar.
340).
5. The learned AAG has supported the arguments of Mr. Raja Qureshi and Mr. Abrar Hassan.
6. In rebuttal, Mr. Khalid Javed Khan has submitted that the petitioner has been listed upto the year 2007 in category "A" by the KWSB which has mentioned it in glowing terms in the booklet issued by them. Furthermore, the Black listing, if any, has now been removed by KWSB vis-a-vis the petitioner.
7. We have heard all the learned counsel as well as the learned Addl. Advocate General and our conclusions are as follows:-
8. Lt would be seen that per settled law, mere participation in a bidding process does not entitle a bidder to claim the contract in question, although it may, be the lowest. However, an unsuccessful bidder can certainly approach this Court where it alleges mala tides and discrimination etc., in the award of the contract to another bidder, In this regard reference can be made to Owaisco Vs. Federation of Pakistan, M/s. Pacific Multinational (Pvt) Ltd. Vs. I.G. Of Police Sindh and Asadullah Mangi Vs. PIA (supra). Similarly, it would be seen that per settled law executive authorities have been enjoined to act fairly, bona finely and in a manner which ensures transparency of the process before them, In this regard reference can be made to Dadabhoy Investment (Pvt.) Ltd. Vs. Federation of Pakistan (PLD 1995 Kar. 33), Asadullah Mangi Vs. PIA and Abid Hussain Vs. PIA (supra).
In the present case it would be seen that the decision whether or not to award the contract to a particular tenderer/bidder would depend upon evaluation of its offer in accordance with the Instructions to Tenderers which had been circulated amongst them before the process had started. The salient features of these instructions are Clause I. T. 11.1-b which concerns the financial viability of the tenderer, availability of critical equipment with him, work commitment since pre- qualification and current litigation information etc. Clause I.T. 28, which concerns the evaluation and comparisons of tenders etc. And Clause I.T. 2-9.11 which provides that only the offer of those tenderers who are substantially responsive to the tender documents would be considered, It appears that the petitioner was not considered on three main grounds by respondent No. 1 i.e. Its partner Mr. Ayaz Khan Mandokhel had quarreles with the representative of respondent No. 3 on the tender opening date thus creating an unhealthy atmosphere which was not . Conducive to the process and due to which respondent No. 3 boycotted the proceedings; failure of the petitioner to submit the required renewal certificate of its licence from the Pakistan Engineering Council within time and finally the pending litigation between the petitioner and other Institutions viz. KPT and defunct KDA due to which the petitioner had been blacklisted. As regards the first ground, viz. Of creating unpleasant atmosphere on the date when the tender was opened, there is hardly any evidence to justify the same, In any event, this is not a ground upon which the petitioner could be disqualified if strict adherence is to be made to the Instructions, to Tenderers.
Insofar as non-submission of the petitioner's certificate from the Pakistan Engineering Council alongwith its tender is concerned, it appears that the same was delayed due to the failure of respondent No. 1 to send the performance report of the petitioner to the Council, In these circumstances, such delay cannot be made a ground for not considering the tender submitted by the petitioner. As regards the third issue viz. The failure of the petitioner Jo disclose the litigation details and the result of its past performance, this information could always be called for from the petitioner since it would form one of the grounds for evaluating the petitioner's bid as per Clause'
I.T. 11.1-b. Lt may also be seen that blacklisting of a concern on the ground of pending litigation etc; is again open to scrutiny, In any event, per the documents filed with the petition, the petitioner's name has been removed from such blacklist. Lt also appears that the petitioner has been performing satisfactorily on a number of projects successfully and has been listed as a Contractor in Category "A" by the respondent No. 1. Consequently, the petitioner could not be disqualified on this ground alone. For all the foregoing reasons it appears that the respondent No. 1 has not exercised due diligence in evaluating the bid of the-petitioner and has disqualified it on grounds which do not appear to be in consonance with the Instructions to Tenderers, In this regard, it may also be seen that according to the tender evaluation report of M/s: Nespak (Pvt.) Ltd., who are the consultants to KWSB only the bid of the petitioner was within the normal limits per the Engineer's cost estimate while that of respondents Nos. 2 and 3 were higher than these limits. However, the Consultants have recommended that despite the lowest bid of M/s. Ayaz Builders all the bids need to be further examined........... "for eligibility and responsiveness as per I.T. 03 and I.T. 11 of the instructions of tenderers. Subject to the compliance of I.T. 03, I.T. 11 and I.T., the responsive and eligible bid may be considered for award of contract. ....... " It appears that this final exercise has yet to be completed by the KWSB/Nespak. While observing as afore stated, it would also not be out of place to highlight that such exercise-can only be carried out by the concerned State functionaries in conjunction with expert advise and the Courts are hardly qualified to do so.
10. As to the cases relied upon by Mr. Raja Qureshi regarding enforcement of contractual rights through a writ petition, there is no cavil with the proposition that this cannot be done in situations calling for such enforcement per se. In the present case, however, we are not called upon to do so as what is impugned before us is the lack of transparency in the tender evaluation process. This is in the fitness of things since what the Courts are most familiar with is lack of transparency, due process of law, discrimination and unfair exercise of executive power. Hence, normally it is in this context that the superior Courts of this country while exercising Constitutional jurisdiction have interfered in matters which are otherwise contractual in nature. However, it is again interesting to observe that Where it had been established before a Constitutional Court that the lower bid suffered from some flaws inasmuch as the bidder lacked the necessary technical expertise etc., which was possessed by the higher bidder, the Government's decision to award the bid to the latter upheld. Reference in this regard can be made to the case of Pacific Multinational (Pvt.) Ltd. Vs. I.G.
Of Police (supra). Needless to say such are not the facts of the case at hand.
11. For all the foregoing reasons we would allow the petition to the extent that the respondent No. 1 KWSB would again invite public tenders for the project in question and thereafter conduct a transparent, fair and judicious exercise in evaluating the tenders in conjunction with their consultants and finally award the contract to the tenderer who is found most suitable in terms of the tender documents/instructions to tenderers. Petition stands disposed of.