' YAHYA AFRIDI, J.--Messrs Afzal Motors (Pvt.) Limited, a company registered under the Companies Ordinance, 1984, has sought this Court to exercise its constitutional jurisdiction seeking:- "A. Declare that the rejection of the petitioner's Tenders by the official respondents particularly the respondents 1-2, and awarding the suit contract to respondent No, 7 is absolutely against the law, arbitrary, unfair, mala fide and against the fundamental rights of the petitioner company envisaged in Articles 25, 18 and 4 of the Constitution of the Islamic Republic of Pakistan, 1973, and the same is liable to be set aside; and B. Direct the respondents 1-2 and all the concerned official respondents to entertain and accept the lowest offer of the petitioner and award the suit contract accordingly to the petitioner company and/or C. Grant of other relief considered just and appropriate under the given circumstances of the case".
2. The events which have lead to the grievance agitated by the petitioner in the present petition are that respondent No,1 in the Annual Development Program ("ADP") 2009-2010, provided Rs,10,000 millions for purchase of thirteen buses for transport facilities in the Government Girls Colleges in N.- W.F.P.
3. The Respondent Department invited bids for the supply of the thirteen buses through public notice duly advertised in the national dailies.
4. In pursuance of the said advertisement, six parties submitted their bids, namely:
(1) Daewoo Peshawar Motors
(2) Daewoo Afzal Motors (Pvt.) Ltd. Karachi
(3) Hino Pak Motors Ltd. Karachi
(4) Ghandara Nissan Karachi
(5) Hino Frontier Motors Karachi and
(6) Maqbool Motors Hino Karachi ' On opening the bids, the particulars of only the first three parties stated hereinabove were found in order. While the bids of the remaining three were rejected, as the seven did not fulfill the requirements.
5. Admittedly, the bid submitted by the petitioner was the lowest and even on the request of the department to revise the rates, which were accordingly done by the three bidders, the bid of the petitioner remained the lowest.
6. Respondent 2, in order to fairly assess the bids submitted by the said three parties, duly constituted a committee of three officers vide notification dated 16-12-2009, to assess the market price and after sale service of the said three bidders, Their report dated 24-12-2009 was submitted to the respondent department, which highlighted:-- ' The undersigned visited the main office of Hino Pak Motor, situated at Ring Road, Peshawar. The main office has been established on a vast area which includes Showroom, Workshop and Spare Parts Store. The undersigned visited all these components and found it in operational condition.
The Manager of Hino Pak informed the undersigned that they have wide spread network of Workshops, Showrooms and spare parts through out the country. He further informed that in far flung areas where proper workshops of Hino are not available, the company provides services through their mobile units.
' The undersigned visited Afzal Motor (Daewoo dealer) situated at 2nd Floor of Adnan Mansion, G.T.
Road, Peshawar. The office was found closed and no one was available there 'except one Chowkidar who also claimed to be sales representative of Daewoo Company. After discussion it was found that Daewoo motors have no show room, workshop and spare part store in N.-W.F.P.
7. In addition to the said report of the committee, the respondent department also sought the technical evaluation of the vehicles offered by the parties from the N.-W.F.P. University of Engineering and Technology, Peshawar. The technical report of the University clearly stated the difference in the buses being offered. The report stated:-- ' Reference may please be made to the letter from Higher Education. Archives Libraries Department Government of N. W. F. P. Regarding the evaluation of the technical specification provided by the following for the supply of buses:
1. M/S Hino Pak (Hino Buses)
2. Gandahara Nissan Ltd. (Nissan Buses)
3. Afzal Motors (Pvt.) Ltd. (Daewoo Buses)
' After having compared the information provided by the above firms, the undersigned submitted his technical report.
1. M/s. Hino Pak buses are Japanese based technology, which is better than its competitors,
2. The fuel consumption of the buses quoted by M/s. Hino Pak is less than its competitors,
3. The engine power is less than the others but if fulfils the minimum requirement of such use.
4. The after sale service facilities of Hino Buses are easily and frequently available in all places of N.-W.F.P.
8. Finally the reports of the committee and the technical report sought from the N.-W.F.P. University of Engineering and Technology came up for its final consideration before the Purchase Committee of the respondent department in its meeting held on 27-1-2010. The said meeting was chaired by the Secretary Higher Education Department and was represented by seven other officers, After reviewing the reports submitted it was decided that Messrs Hino Pak (Pvt.) Ltd. (Respondent No,7) be awarded the contract for supply of the thirteen buses.
9. This order of awarding the said contract to respondent No,7 dated 6-2-2010 has agitated the petitioner to file the present petition.
' Qazi Jawad Advocate, the learned counsel for the petitioner addressed us on the issue of maintainability of the writ petition in matter relating to contracts. He very aptly relied on judgment of the august Supreme Court in Ittehad Cargo Service's case (PLD 2001 SC 116) and Airport Services' case (1998 SCM R 2268).
' He asserted that any order which is based on mala fide or being against the principle of transparency and not having contested facts could be entertained in writ jurisdiction.
' He also urged us that the bidders had "rights". He sought reliance of Pak Steel Mill's case (2007 SCM R 190) and Mian Fazal Din's case (PLD 1969 SC 223).
' He further stated that having offered his bid, rights accrued in his favour and thus he had to be considered by the Government in a proper transparent and reasonable manner. In case his bid was not accepted, the competent authority had to give reasons for the same in writing after granted personal hearing, especially when his bid was the lowest. He relied on Preston Product's case (2001 CLC 1412).
' He then moved on to allege mala fide. He asserted that the comments filed and the record produced was an afterthought of the respondents and that documents submitted have been prepared and back dated after the filing of the present writ petition.
' Finally, he stated that Rule 29 of the N.W.F.P. Procurement of Goods, Works and Services Rules, 2003 ("Rules") has been violated as the reason in writing for the rejection of his bid was not conveyed to him. Thus he concluded that the writ petition be accepted and the order dated 6-2-2010 in favour of respondent No, 7 be set aside and the contract be awarded to the petitioner.
10. Barrister Waqar Ahmad, the learned D.A.-G. Representing the respondent-department referred us to the advertisement, which clearly required from the bidders, inter alia, after sale services for one year. He then drew our attention to the thorough probe carried out by the respondent department regarding the market price survey, the after sale services of the bidders and technical report on the buses being offered.
' The learned D.A.-G. Very candidly admitted that the petitioner's offer remained the lowest even when the rates were revised. However, he pointed out that the after sale services and the technical report did not go in favour of the petitioner and thus the Purchase Committee in its meeting of 27- 1-2010 'came to the right decision to award the said contract to respondent No,7.
11. Mr. Isaac Ali Qazi, learned counsel representing respondent No,7, raised preliminary objections regarding the maintainability of the petition as factual disputed questions relating to after sale services were being agitated by the petitioner, which could not be looked into in constitutional jurisdiction. He further stated that the expert report regarding the mechanical capacity of the vehicles being offered by the petitioner and respondent having been determined could not be re- agitated in constitutional jurisdiction. He relied on Arshad's case 2000 SCM R 1557. He also agreed that the Rule 29(2) of the Rules had been complied with and thus argued that the petition be dismissed.
12. The record of the case has been reviewed thoroughly and the valuable arguments of learned counsel for the parties duly heard and noted.
13. Regarding maintainability of constitutional petitions relating to contractual matters, as in the present petition, the law has been settled and the issue relating to contracts can be agitated in constitutional jurisdiction. However, the condition precedent for such a judicial review is, where the impugned order or an action or inaction is based on mala fide, against the principles of transparency and it does not have any contentious contested questions of fact determinable from the record of the case.
It is also an admitted and settled principle of law that bidders do have rights to be considered in a lawful manner by the respondents. More so, in view the Rules, wherein the procedure for tendering, evaluation of tenders and the award of the contract has been clearly stipulated. Thus any violation of the Rules could be duly agitated in constitutional jurisdiction.
14.In regard to alleging mala fide, the petitioner has to firstly allege the mala fide against an individual, who has to be clearly named in the petition. Secondly, he has to from the record show clearly, without there being any need to record evidence, that the individual against whom mala fide has committed the alleged mala fide.. Alleging mala fide is a double edged weapon. It can very easily throw the petition out of the relm of maintainability, as proving mala fide is difficult. In case the mala fide cannot be proved from the record then the need for recording of evidence comes in and in such eventuality the petition cannot proceed in constitutional jurisdiction. The matter could then have to be resolved and adjudicated by an ordinary civil Court of competent jurisdiction.
' In the present case mala fide though alleged has not been attributed to any particular person named in the calendar of respondent. Secondly the record does not bring forth any issue which could be termed as mala fide.
15 Rule 29 of the Rules clearly stipulates the manner in which contracts are to be awarded which reads as:-- "29. Preparation of evaluation report and award of tenders.--(1) Tender Evaluation Committee or the officer inviting the tender shall prepare detailed elevation report which shall be considered by the Tender Accepting Authority before taking a final decision on the tender. The contract shall be awarded only to a tenderer qualified in accordance with the criteria set out, whose bid has been determined to be responsive to the tender documents and who has offered the lowest price of lowest evaluated price as the case may be. While accepting the bid it will be ensured that the same is reasonable.
(2) Where the lowest price or the lowest evaluated price is not accepted the Tender Accepting Authority shall record reasons in writing."
Sub-rule 2 of Rule 29 of the Rules imposes an obligation upon the Tender Accepting Authority to provide reasons in writing in case it rejects the lowest price. In the present case, we note that the Tender Committee in its meeting of 27-1-2010 reviewed the reports submitted to it and gave clear valid reasons for rejecting the lowest bid of the D petitioner and accepting the bid of respondent No,7.
' What the petitioner wants us to believe is that the entire process was an afterthought and was manufactured by the respondents after the filing of the present writ petition. We are afraid the same cannot be accepted without any supporting documents. The minutes of the meeting have been duly signed by eight Government officers. The committee report has been duly signed by three Government officers, the technical report has been duly signed by a competent faculty member of N.-W.F.P. University of Engineering and Technology. Thus to allege the same to have been manufactured as alleged by the petitioner, is just a far cry.
16. The petitioner's further assertion that the principle of natural justice has been violated. We note that Rule 29 is clear, the requirement of giving reasons for rejection of the lowest bid in writing, postulates the assertions of principles of natural justice, which in the present case has been duly complied with.
17. In the present case, we feel that the technical evaluation of the engine of the buses being offered, as reported by experts cannot be disputed by the petitioner. No counter affidavit of technical experts rebutting the findings of the reports, has been filed by the petitioner to challenge the same, the petitioner would require to produce evidence thus we are not inclined to allow the present case in our constitutional jurisdiction.
18. For reasons recorded the petition fails and is dismissed in limine. No order as to costs.
THE END VOLUME LXII 2010 THE ALL PAKISTAN LEGAL DECISIONS BALOCHISTAN HIGH COURT