' NASIR-UL-MULK, J.---The Government of Pakistan and the Government of Punjab got together in the year, 2004 and formed a company by the name of Expo Lahore (Pvt.) Limited (for the sake of brevity referred to as Expo (Pvt.) Ltd.) which was duly incorporated under the Companies Ordinance, 1984 on 19-7-2004. The share capital of the company was to be provided by the two Governments. The objectives of the company, set out in the memorandum of association broadly was to promote trade and commerce and specifically to setup Expo Center at Lahore of International standard to promote exports and other commerce activities. The land for the Center was to be provided by the Provincial Government, acquired on lease from the Lahore Development Authority at Johar Town, Lahore. Seven projects were sanctioned for the setting up of the. Expo Centre; four of them were to be constructed by Expo (Pvt.) Limited itself whereas for the three mega projects, namely, Prestigious 250 room Hotel, Shopping Mall and 40 Storey Technology Tower, the company through advertisement dated 8-5-2005 published in the National Dailies invited Expression of Interest (EOI) from developers for the purpose of short listing. Five parties; the National Real Estate Company Ltd., Hashwani Hotels Ltd., Saadullah Khan Brothers, BNP Developers (Pvt.) Ltd. And Echo West International (Pvt.) Ltd. Were short listed, of whom the first two backed out and did not submit tenders for any ,of the projects. The terms of reference (TOR) were provided to the short listed parties.
2. Saadullah Khan Brothers (SKB) and Echo West International (Pvt.) Limited (Echo Ltd) offered bids for the Technology Tower and Shopping Mall. BNP offered bid for the Hotel Project and the Technology Tower, whose Hotel's bid of Rs,90 million was rejected being below the reserve price. For the Technology Tower and Shopping Mall, the bids of SKB of Rs,461.5 million and Rs,368.550 million respectively were the highest and thus letters of Intent (LOI) were issued to them. As regards the Hotel Project, after cancellation of the first bid, second bidding date was announced as 27-8-2005 on which Echo Ltd. Offered a bid of Rs,450.250 million, BNP Rs,460 million and that of SKB was not entertained as the same was not received in time. The Board of Directors of Expo (Pvt.) Limited, however, decided to put the project to another bidding.
' Meanwhile, litigation started; BNP filed suit against the decision of the Board of Directors of Expo (Pvt.) Ltd. Cancelling the second bid in which BNP claimed to have made highest offer, whereas, Echo (Pvt.) Ltd. Filed writ petition No,17358 of 2005, assailing the acceptance of bid of SKB Ltd. For the Shopping Mall and the Technology Tower. The Civil Judge after hearing the civil suit of SKB rejected the plaint on the ground that the plaintiff had no cause of action. The matter was taken up by SKB to the High Court in Civil Revision No,2407 of 2005, the same was admitted to full hearing on 26-10-2005 and on C.M.No,2 of 2005 ordered as under:-- "During the course of hearing of this application it has been pointed out by the learned counsel for the respondents that the petitioner has also been invited for negotiation to be held on 27th and 31st of this month. Let the petitioner take part in the meeting. The outcome of the said meeting will be however subject to the final result of this petition."
3. It appears from the letter dated 31-10.2005 by BNP addressed to the Chief Operating Officer, Expo (Pvt.) Ltd. That BNP as well as Echo (Pvt.) Ltd. Took exceptions in the meeting held for considering the bids for the Hotel Project, alleging that receiving bid from SKB and refusing to hold negotiations, were in violation of the Court order. The BNP after complaining of unfair treatment, nevertheless in the concluding para of the letter made an offer of Rs,535 million for the Hotel Project. The Board of Directors of Expo (Pvt.) Ltd. Found this offer of Rs,535 million as financially and technically compliant and thus on 3-12-2005 issued a letter of Intent (LOI) to BNP for the sublease of the designated 3.41 acres of land for the development of a 250 room prestigious hotel at Expo Center. The sub-lease was for a period of 30 years renewable for two more similar terms.
4. Returning to the case of Echo West International (Pvt.) Ltd., its Writ Petition No,17358 of 2005 was dismissed by a Single Bench of the Lahore High Court on 5-12-2005. On the same day it submitted a revised offer of Rs,540 millions for the Hotel Project to the Expo (Pvt.) Ltd. The offer was rejected vide letter dated 9-12-2005 on the ground that it was not submitted at the time of bidding on 31-10- 2005 . Against the judgment of the Single Bench of the Lahore High Court, Echo West International (Pvt.) Ltd. Filed an Intra Court Appeal which met the same fate on 15-3-2006, from which Civil Petition No,409 of 2006 was filed in this Court and leave to appeal was granted on 5-7-2006 to consider inter alia, the following:- "(i) whether the bidding process and procedure adopted for the award of the contracts for the construction of three Mega Projects, involving Government properties, by Expo Lahore (Pvt.) limited/respondent No,2, a company jointly owned by Federal Government and Government of the Punjab, was valid, transparent, non-arbitrary, non-discriminatory and in accordance with the guidelines and requirements laid down by the superior Courts of this country in such like matters ?; and
(ii) Whether bidding mechanism and process adopted by respondent No,2 were contrary to and violative of Public Procurement Regulatory Authority Ordinance No,XXII of 2002 and Public Procurement Rules, 2004?; and
(iii) Whether Intra Court Appeal instituted by the petitioner which resulted in the impugned judgment, was not competent due to the bar as contained in the proviso of section 3(2) of the Law Reforms Ordinance No,XII of 1972 ?, if so, its effect."
5. Syed Ali Zafar, Advocate Supreme Court appeared for the appellant, Echo West International (Pvt.) Limited. Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan, represented respondent No,3, the Federation of Pakistan and Mr. Mudassar Khalid Abbasi, Assistant Advocate- General, Punjab, represented respondent No,1, the Government of Punjab, Mr. Taffazul H. Rizvi, Advocate Supreme Court, appeared on behalf of respondent No,2. Expo (Pvt.) Ltd. And Barrister Ijaz- ul-Hassan, Advocate Supreme Court for respondent No,5, BNP Developers (Pvt.) Limited.
6. Syed Ali Zafar, Advocate Supreme Court addressed us at length. His fundamental contention was that the advertisement dated 8-5-2005 inviting Expression of Interest (EOI) from the prospective developers as well as the Terms of Reference (TOR) were vague and expressed in very general terms and failed to provide specific details such as concept of design and other such details of the project, nor invited the same from the bidders with the result that there was no criteria before the Board of Directors of Expo (Pvt.) Ltd to properly and fairly compare offers made by the bidders. To substantiate this argument, the learned counsel referred to the relevant clauses of the EOI and the TOR of the three projects. He specifically referred to the last para under the head, Project Scope, in the TOR where the successful bidder was additionally permitted to use his creativity or ability to propose an alternative set of features and amenities being expedient to suit the project. It was, thus, contended that in the absence of the specifications, the authority empowered to select the bidder for a project reserved to itself unfettered powers liable to be exercised arbitrarily and lacked transparency. In addition to the well settled judicial pronouncements that the public functionaries while dealing with the public property shall act fairly and transparently, the learned counsel also pressed into service the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the rules framed thereunder. Reference was specifically made to rule 4. Relating to transparency and fairness; Rule 10, prohibiting discrimination and Rule 23, providing for precise and unambiguous biding documents for public procurement. The learned counsel brought to our notice, for the purpose of comparison, bidding documents of certain national and international organizations providing specific details of the projects for inviting bids.
7. For the Hotel Project, the appellant has a different grievance. The learned counsel did not question the lack of specifications in the design etc., as according to him, the deficiency on that account in the Expression of Interest (EOI) and the Terms of Reference (TOR), was made up in the second Terms of Reference dated 26-9-2005 inviting fresh bids for the Hotel Project, requiring the bidders to submit final concepts of designs, general construction and completion schedules etc. The acceptance of bid of BNP for the Hotel Project is assailed by the appellant on the ground that after its representatives' participation in the meeting of 21-10-2005 for bidding/negotiations, the offer of BNP was entertained later without knowledge of the appellant. The learned counsel referred to the letter of the same day written by BNP wherein it was specifically mentioned that BNP as well as the appellant had protested against the manner in which the bidding and negotiations were being conducted as being violative of the order of the Lahore High Court. It was argued that as a matter of fact the appellant learnt about the issuance of Letter of Intent (LOI) in favour of BNP during the course of arguments before the Single Bench of the Lahore High Court in the appellant's writ petition and that it was on the same day that the appellant made an offer of Rs,540 million for the Hotel Project, superseding that of BNP by Rs,5 million. The learned counsel thus argued that the appellant was intentionally kept out from the Hotel Project and the process followed was discriminatory and lacked transparency. In support of his submissions, the learned counsel relied upon Shaukat Ali v. Secretary, Industries and Mineral Development Government of Punjab Lahore 1995 M LD 123, Pacific Multinational (Pvt.) Ltd. v. I.G. Of Police Sindh PLD 1992 Kar.283, Ittehad Cargo Service v. Messrs Syed Tanseem Hussain Naqvi PLD 2001 SC 116, West Bengal Electricity Board v.
Patel Engineering Co. Ltd. AIR 2001 SC 682 and Messrs Airport Support Services v. The Airport Manager 1998 SCM R 2268.
8.
8.Sardar Muhammad Latif Khan Khosa, learned Attorney General for Pakistan submitted that the entire process of bidding and evaluation of the offers were done in a transparent manner and the approval for acceptance of the highest bid was given by a high powered Board of Directors of the Expo (Pvt.) Ltd. Comprising of 11 members who were either the top level Federal and the Provincial Government officials or representatives of the Chambers of Commerce. It was pointed out that the main Expo Center building which is being constructed by the company itself through contractors is nearing completion but the same cannot be commissioned until the three Mega Projects in question are completed. It was pointed out that on account of the current litigation, the projects have already been delayed by 4 years and the company as well as the parties concerned will have to bear huge unforeseen financial burdens, in addition to the setback suffered in attaining the objectives of the center. The learned Attorney General pointed out that the contracts in question are to be given under the Build-Operate-Transfer (BOT) arrangement. A distinction was, therefore, drawn between construction contracts where detailed specifications are provided to the prospective bidders and the form of (BOT) arrangement where the project specifications are generally sorted out with the developers after the bids are offered. In this context, it was maintained that after short listing, a number of pre-bidding meetings were held between the representatives of the Expo (Pvt.) Ltd. And the prospective bidders whose queries about the projects were answered to their satisfaction, leaving no confusion in their minds as to the Company's requirement. The learned Attorney General further pointed out that the concept designs and other relevant proposals were to be examined and approved by internationally renowned Architects.
9. Further elaborating the arguments of the learned Attorney General, Mr. Taffazul H. Rizvi, Advocate Supreme Court appearing for respondent No,2 (Expo)(Pvt.) Ltd. Contended that as opposed to construction contracts, BOT contracts provide only broad parameters of the project to the prospective developers. It was further pointed out that under the BOT Contracts, the developer develops the land with his own funds and operates the project for a given period of time on the expiry of which it is returned to the owner. In view of this nature of the contract it is a common feature of BOT Contracts that the nitty-gritty of the project are sorted out later. The learned counsel emphasized that the appellant participated in the entire process without complaining about vagueness or lack of specification of the work to be done in the projects. He reiterated that representatives of the appellant had participated in all the pre-bidding meetings and knew very well what was expected from the developers. That by his conduct the appellant was stopped from questioning the bidding process. Returning to the issue of the Hotel Project, the learned counsel submitted, with reference to the judgment of the High Court as well as the initial biddings, that the appellant had no interest in the Hotel Project. That is why, it was pointed out, the appellant made a lame excuse for not bidding for the Hotel on 31-10-2005 and offered an enhanced bid only after his writ petition was dismissed by the Lahore High Court on 5-12-2005. Additionally, it was argued that the appellant's offer for the Hotel Project was noncompliant as it was for the purchase of the land of the project whereas it was to be given on leasehold as even Expo (Pvt.) Ltd. Itself had acquired it on lease from the Lahore Development Authority. In this context, the learned counsel read out a letter dated 23-7-2005 by the appellant addressed to the Expo (Pvt.) Ltd., expressing regrets for not participating in the bidding for the Hotel Project as the same it did not find the Project feasible after market research, survey and financial analysis conducted by the appellant.
10. Mr. Alamgir, Advocate Supreme Court for respondent No,4 contended that Messrs Saadullah Khan Brothers (SKB) undisputedly were the highest bidders for the Shopping Mall and the Technology Tower and as the appellant had fully participated in the process of bidding it cannot now turn around and assail the process after having lost the bid.
11. For respondent No,5 (BNP) Barrister Ijaz-ul-Hassan, Advocate Supreme Court, again drew a distinction between BOT and the Construction Contracts to make his point that broad features of the Hotel Project in the EOI and TOR were sufficient compliance with the characteristics of inviting bids for BOT contracts. The learned counsel pointed out that BNP has to spend Rs,4 billion on the construction of the Hotel in addition to Rs,535 million to be paid in rents over a period of 25 years to the Expo (Pvt.) Ltd. The learned counsel submitted that no public funds were required for the construction and the reliance of the learned counsel for the appellant on the Public Procurement Ordinance, 2002 and the rules framed there under, was misplaced as the provisions thereof applied only to projects involving public funds. That in any case, the appellant had shown full confidence in the process of bidding and made no complaint regarding transparency of the process until he lost the race. The learned counsel questioned the very maintainability of the appellant's writ petition before the High Court on the ground that no writ could be issued to a limited company and the appellant's claim of pursuing the present matter as public interest litigation is belied by the appellant's personal interests. The learned counsel reiterated that the appellant has never shown any interest in the Hotel Project and is now pursuing this case for the sole purpose of undoing the entire process in order to avail for himself another opportunity to join in the race.
12. Before adverting to the other questions raised in this appeal, we first take up the objection raised on behalf of the respondents to the maintainability of the writ petition before the High Court under Article 199 of the Constitution on the ground that the same was directed against a private limited company to whom writ in the nature of certiorari or mandamus cannot be issued. Writs of such nature can be issued to, inter alia, persons performing functions in connection with the affairs of the Federation or the Province. Expo (Pvt.) Ltd., possessing legal entity, is a person and the criteria for determining as to whether a limited company can be treated for the purpose of exercising writ jurisdiction over it by a High Court, as "performing functions of Federal or Provincial government", has been laid down by this Court in the case of Salahuddin v. Frontier Sugar Mills and Distillery Ltd.
PLD 1975 SC 244 that the primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the state involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not. Going through the memorandum and Articles of Association and other documents, we find that Expo (Pvt.) Ltd. Does fulfil the above test to qualify as a person performing functions of the Federation as well as the Provincial Government. The share capital of the company, according to the Memorandum of Association, was to be provided by the Government of Pakistan through Ministry of Commerce and Government of the Punjab through Industries, Commerce and Investment Department. The Provincial Government was to provide land, called Expo Land for the Expo Center, and according to Article 68 of the Articles of the Association, the primary funding was to be provided in the shape of grants by the Federal and the Provincial Governments. Out of 11 members of the Board of Directors of the Company, 4 each are nominated by the Federal Government and the Provincial Government and the remaining 3 from the business community nominated jointly by the two Governments. The objectives of the company enumerated in the memorandum of association broadly is for promoting exports, commerce generally, generating revenue and other similar activities, by providing facilities for exhibitions, holding meetings and conferences relating to trade and commerce, nationally and internationally. The company was, thus, set up for performing functions which indeed were primarily those of the State and it was funded and controlled by the Federal Government and the Government of the Punjab. Objection to the maintainability on this score is without force.
13. As stated earlier, 3 parties short listed by the Expo (Pvt.) Ltd. Offered bids for the 3 projects, Hotel, Shopping Mall and the Technology Tower. The appellant initially offered bids for the Shopping Mall and Technology Tower but not for the Hotel. The appellant's bids however, being not the highest were not accepted and thus filed writ petition before the Lahore High Court against the acceptance of the Higher bid of BNP. At the time of filing of the writ petition, the bids for the Hotel Project, which were being held for the 3rd time, had not been finalized. The bidding process as whole was questioned essentially on the ground that Expo (Pvt.) Ltd. Had not acted fairly and transparently by not providing any criteria for the evaluation of the bids. As many as 7 prayers were made but in substance the appellant had asked for the cancellation of all bids, including that made for the Hotel Project, and for holding fresh bidding in a transparent and fair manner. The appellant did not seek any relief directly for itself, and quite rightly because admittedly the appellant's bid was not the highest for the two projects for which he made the offers. As regards the Hotel Project, the appellant sought restraining order to prevent finalization of the bidding for the project.
14.The appellant made offers, for two projects only. There is nothing on the record to show that the appellant had made any complaint as to the vagueness or lack of specific details of the projects for which the offers were invited. The appellant was one of the parties that was short listed, to whom the Terms of References (TOR) were provided. We were, informed that a number of pre- bidding meetings took place between the representatives of the bidders and that of the company.
That these meetings were necessary in view of the BOT nature of the contract, for discussing and thrashing out details of the projects. We are unaware of the discussion that took place in these meetings. However, since the appellant had offered his bid after these meetings, we have reasons to believe that it knew very well what was expected of the developers. This is evident from the letter dated 23-7-2005, mentioned above, which shows that before deciding not to go for the Hotel Project, the appellant had carried out market research and survey and financial analysis to find out as to whether the project was feasible. It has never been the case of the appellant that in making his offers he was in any way misled by any deficiency in the specifics of the projects. Apart from the 3rd bidding on the Hotel Project, which we shall deal with later, the appellant has also made no grievance that he was discriminated against in any way vis-a-vis the others bidders. All this leads us to conclude that the appellant was neither treated unfairly nor discriminately.
15. Realizing that the appellant was unlikely to succeed in view of his participation in the bidding process to obtain relief for itself regarding the said two projects, the learned counsel for the appellant insisted that the matter be examined as one of public importance to undo the result of failure of public functionaries to perform their duties properly. It was thus, urged that the entire process be repeated and transparency ensured. The learned counsel, therefore, attempted to make it a case of public interest litigation. The litigation of such nature do not fall specifically under any provision of Article 199 of the Constitution. However, this concept has received judicial recognition enabling the Courts to enlarge the scope of the meaning of 'aggrieved person' under Article 199 of the Constitution to include a public spirited person who brings to the notice of the Court a matter of public importance. The appellant has a personal interest in the present litigation as he is motivated purely by his own economic interests and wants the entire bidding process reversed so that he can avail another opportunity of bidding for the project. The present litigation is, therefore, not public interest but rather personal interest litigation. We will thus not examine the case from that stand point. We have already held that the appellant has locus standi, having personal interest in the litigation but at the same time have found that he has no cause for complaint. Furthermore, since we are not considering the present case as one of public interest litigation and having held that the appellant was not treated unfairly or discriminately, we need not comment upon the arguments advanced by both sides, on the application or otherwise, of the provisions of the Public Procurement Regulatory Authority Ordinance No,XXII of 2002, to the present case.
16. We now turn to the Hotel Project, the process of bidding for which the learned counsel for the appellant did not assail on the ground of lack of transparency, in view of the details given in the second Term of Reference dated 29-9-2005 inviting fresh bids after the first failed. We are not called upon to opine on the sufficiency or otherwise of the details of the project for the purpose of bidding in this second Term of Reference in the light of the arguments advanced by the learned counsel regarding the other two projects, and thus we would refrain from dilating upon the same. It is, however, significant to note that the appellant initially was never interested in the Hotel Project and had not made any offer in the first round of bidding. In his letter of 23-7-2005, the appellant found the project not feasible in view of the market survey and financial analysis conducted by it.
Although controverted by the learned counsel for the appellant, the learned Judges hearing the Intra Court Appeal in the Lahore High Court made reference to an observation made by the learned Single Judge in Chambers that the appellant was not interested in the Hotel or the Technology Tower Project and was aiming for the Shopping Mall Project alone. Be that as it may, the appellant was nevertheless invited to make an offer for the Hotel Project when the first bid failed, notwithstanding that it had not shown interest in the project in the initial round. His grievance now is that he was kept out of the bid in this second round and in this context his only reliance appears to be the letter dated 31-10-2005 by BNP Developers (Pvt.) Ltd. Addressed to Expo Lahore (Pvt.) Ltd. In which BNP had expressed its reservations on the manner in which the offers for the Project were being invited. The stand of the BNP was that inviting closed bids for the project and entertaining one from Messrs SKB was in violation of the order of the High Court to finalize the offers of the interested parties through negotiations. In this very letter Messrs BNP made a reference to a similar objection being raised by the appellant. However, on the same day, BNP made an offer of Rs,535 million which was duly accepted and of which the appellant is now aggrieved.
17. The above mentioned letter of BNP does not advance the cause of the appellant for a number of reasons. Apart from this letter, the appellant has not placed on record any document demonstrating its protest. Secondly, the BNP has lodged protest only but nowhere in the letter it declared its intention to back out from the bid. The making of bid subsequently on the same day by the BNP was, therefore, not inconsistent with its earlier protest. The appellant was in no way prevented from making of its own offer along with BNP on 21-10-2005. There is also nothing on the record to show that the appellant's representative had backed out of the bidding process on account of the objection raised by the BNP.
18. It is also pertinent to refer to the order of the High Court dated 26-10-2005 on C.M.No,2 of 2005 in CR No,2407 of 2005, filed by the BNP Developers against the rejection of plaint of BNP Developers in a suit in which the plaintiff had assailed the non-acceptance of its first bid for the Hotel Project. On C.M.A. No,2 of 2005, the Court ordered "During the course of hearing of this application it has been pointed out by the learned counsel for the respondents that the petitioner (BNP Developers (Pvt.)
Ltd.) has also been invited for negotiation to be held on 27th and 31st of this month. Let the petitioner take part in the meeting. The outcome of the said meeting will be however subject to the final result of this petition. The Civil Revision was, however, subsequently dismissed when the offer of BNP was eventually accepted. It is the order passed on C.M.No,2 of 2005 which BNP mentioned in its letter of 31-10-2005 protesting against its violation insisting that the offers shall be settled through negotiations. We fail to understand as to how can the above order in any way entitle the appellant to raise any objection in the meeting of 31-10-2005. The Court had never ordered the settlement of the offers through negotiations; it only incorporated, in its order the information furnished by the counsel for Expo and the Court allowed the petitioner before it (BNP) to participate in the meeting. Furthermore, it was an order passed in favour of the BNP Developers and no advantage of it could have been taken by the appellant. Thus, we consider that the appellant has not been able to make out a case for the cancellation of the Letter of Intent (LOI) dated 3-12-2005 for the sub lease of the land for the Hotel Project by the Expo Lahore, (Pvt.) Ltd.. To BNP Developers.
19. As we have come to the conclusion that the appellant has not been able to successfully assail the acceptance of the offers made for the three projects by respondents Nos.4 and 5, the appeal fails, which is accordingly dismissed. The parties shall bear their own costs.