' This Intra-Court appeal assails judgment dated 18-6-2010, passed the learned Single Judge in chamber, whereby Writ Petition No,2449 of 2010, filed by the appellant, has been dismissed.
2. The facts forming the background of the controversy raised in this Intra-Court appeal are that on 5-12-2009 respondent No,1, Capital Development Authority ("CDA"), issued an advertisement inviting applications for the pre-qualification of contractors for the construction of South Carriageway Peshawar More to Golra Chowk, Islamabad (section 1) and North Carriagway from Golra Chowk to Peshawar More. Islamabad (section 11). A total of 42 applications were received by CDA from various contractors out of which 13 contractors including the appellant and respondent No,6 were pre-qualified after detailed scrutiny in accordance with the requirements of the pre- qualification criteria. Thereafter, vide letter dated 21-4-2010, CDA invited the 13 pre-qualified contractors to take part in the tender, bids whereof were to be submitted through the Bidding Documents, issued by the CDA, to be deposited at or before 11 a.m. On 10-5-2010 and opened at 12- 30 p.m. On 10-5-2010. Paragraph 6 of the letter dated 21-4-2010 stated that "all the bids must be accompanied by a Bid Security in the amount of Rs,23,580,000 (Rupees Twenty Three Million Five Hundred Eighty Thousand Only) for section 1 in the shape of Deposit at Call" while its paragraph 11 provided that "Any bid which is not accompanied by Deposit at Call for the bids security money will not be accepted for consideration". To the same effect were the Instructions to Bidders, clause 15 whereof provided as under:-- "15.1. Each Bidder shall furnish as part of its bid a Bid Security in the amount stipulated in the Bidding Data in Pak Rupees or an equivalent amount in a freely convertible currency.
' 15.2. The Bid Security shall be at the option of the Bidder, in the form of Deposit at Call or a Bank Guarantee issued by a Scheduled Bank in Pakistan or from a foreign bank duly counter guaranteed by a Scheduled Bank in Pakistan in favour of the Employer valid for a period of 28 days beyond the Bid Validity Date.
' 15.3. Any bid not accompanied by an acceptable Bid Security shall be rejected by the Employer as non responsive".
3. A pre-bid meeting was held on 3-5-2010 between CDA and the pre-qualified contractors in order to clarify any issue relating to the tender. One of the queries raised in the meeting by the contractors was about bid security being changed to insurance guarantee instead of Deposit at Call Bank Guarantee whereupon CDA explained that the proposed construction of the carriageway, being a mega project, the contractors should have the financial capacity to submit the Deposit at Call or a Bank Guarantee as per paragraph 15 of the Instructions to Bidders.
4. Among others, the appellant and the respondent No,6 submitted their respective bids for South Carriageway Peshawar More to Golra Chowk, Islamabad (section 1). However, the bid submitted by respondent No,6 although lowest was held invalid for being accompanied by an insurance guarantee as against the Deposit at Call or Lank Guarantee whereas appellant's bid, accompanied by the requisite Deposit at Call, was found to be the lowest among the responsive bids. Despite having declared respondent No,6's bid as invalid for not being accompanied by the prescribed Deposit at Call or bank guarantee, the CDA allowed respondent No,6 to furnish Deposit at Call on 11- 5-2010 a day after the opening of tenders and issued letter dated 27-5-2010 intimating respondent No,6 that its offer was being scrutinized. It also appears from the record that CDA's Consultants submitted their Bid Evaluation Report in respect of respondent No,6's bid wherein they made the following observations:-- "Therefore, the said bid of Messrs Habib Rafiq did not fulfil the requisite requirements of the bidding documents as per 15.2 and 1B 15.3. 'However, upon special request from the employer (CDA), we have also evaluated their offer and have to state that their rates are below 11% on NHA CSR 2009 and below 7% on non schedule items are way too low in comparison to the NIT amount, by keeping in perspective that the project duration is 2 years and 3 financial years are involved in the contract period, consequently, the offer is considered as non-workable/unrealistic in comparison to NIT amount."
5. Feeling aggrieved, the appellant filed Writ Petition No:2449 of 2010, inter alia, contending therein that DA's letter dated 27-5-2010 is an instance of abuse of official authority and powers and constituted a case of gross corruption apart from being in blatant disregard of the terms and conditions of the tender as well as the Public Procurement Rules, 2004. This Intra-Court Appeal reiterates the grounds urged in the writ petition which was dismissed by the learned Single Judge by his judgment dated 18-6-2010.
6. A preliminary objection has been raised by the learned counsel for respondent No,1, CDA and respondent No,6 who have relied upon the proviso to section 3(2) of the Law Reforms Ordinance, 1972, to contend that this Intra-Court appeal is barred in view of Rule, 48 of the Public Procurement Rules, 2004, which is quoted hereunder:-- "Redressal of grievances by the procuring agency.---(1) The procuring agency shall constitute a committee comprising of odd number of persons, with proper powers and authorizations, to address the complaints of bidders that may occur prior to the entry into force of the procurement contract.
(2) Any bidder feeling aggrieved by any act of the procuring agency after the submission of his bid may lodge a written complaint concerning his grievances not later than fifteen days after the announcement of the bid evaluation report under rule 35.
(3) The committee shall investigate and decide upon the complaint within fifteen days of the receipt of the complaint.
(4) Mere fact of lodging of a complaint shall not warrant suspension of the procurement process.
(5) Any bidder not satisfied with the decision of the committee of the procuring agency may lodge an appeal in the relevant Court of jurisdiction".
7. The question of the maintainability of this Intra-Court Appeal has to be addressed by reference to the proviso to section 3(2) of the Law Reforms Ordinance, 1972, which is reproduced below:-- "An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under subparagraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal (or one revision or one review) to any Court, Tribunal or authority against the original order".
8 It is obvious from the above-quoted provision that an Intra-Court Appeal is barred against the order or judgment passed in the writ petition only if the original order is subject to review, revision or appeal. In the present case, CDA's letter, dated 27-5-2010 has to be regarded as the original order Impugned in the writ petition. In terms of Rule 48 of Public Procurement Rules, 2004, no remedy of review, revision or appeal is provided against CDA's letter dated 27-5-2010. The remedy of complaint to the committee provided in Rule 48 cannot be equated with the remedy of review, revision or appeal which appears to be totally different in nature and scope. As such, the case law relied upon by the learned counsel for the respondent in support of the non-maintainability of this Intra-Court Appeal is not at all applicable. As a result, I find that this Intra-Court Appeal is competent as the bar in proviso to section 3(2) of the Law Reforms Ordinance, 1972, is not attracted in the present case.
9. On merits, it is admitted by the CDA that respondent No,6's bid was initially rejected as instead of Deposit at Call or a bank guarantee it was accompanied by an insurance bond as bid security.
However, it is contended by CDA that even though respondent No, 6 did not comply with tile instructions to the Bidders contained in clauses 15.1, 15.2 and 15.3. The offer of respondent No,6, being 11 per cent below the Engineer's Estimate, has to be preferred as against the appellant's bid which is more than 5% above the Engineer's estimate. Learned counsel for respondent No,6 has asserted that the consideration of respondent No,6's bid for award of the contract is in accordance with the requirements of the Instructions to Bidders as well as Rule 25 of the Procurement Rules, 2004, which does not prohibit an insurance guarantee to serve as bid security. It is further contended that under Rule 31 of the Procurement Rules, 2004, CDA can by way of clarification allow respondent No,6 to substitute its insurance guarantee by a Deposit at Call even after the opening of the bids.
10. Admittedly, CDA is a procuring agency in terms of section 2(J) of the Public Procurement Regulatory Authority Ordinance, 2002, as it is a corporation established by or under a federal law.
As such, it is bound to act in accordance with the Public Procurement Rules, 2004, which have been issued by the Federal Government in exercise of its powers conferred by section 26 of the Public Procurement Regulatory Authority Ordinance, 2002. Reference my be made here to the judgment of the Honourable Supreme Court of Pakistan rendered in Suo Motu Case No,5 of 2010 in paragraph 10 whereof it was observed that "it is the duty of the Court to ensure that the Public Procurement Regulatory Authority Ordinance, 2002, read with the Public Procurement Rules, 2004, are adhered to strictly to exhibit transparency".
11 Rule 2(h), Rule 25, Rule 30, Rule, 31 and Rule, 38, being relevant, are reproduced below:-- Rule 2(h). "lowest evaluated bid" means,-
(i) a bid most closely conforming to evaluation criteria and other conditions specified in the bidding document;
(ii) having lowest evaluated cost:"
Rule 25 "Bid Security:--The procuring agency may require the bidders to furnish bid security not exceeding 5% of the bid price."
Rule 30 ' Evaluation of bids.---(1) All bids shall be evaluated in accordance with the evaluation criteria and other terms and conditions set forth in the prescribed bidding documents. Save as provided for in sub-clause (iv) of clause (c) of Rule 36, no evaluation criteria shall be used for evaluation of bids that had not been specified in the bidding documents.
(2).............................
(3) A bid once opened in accordance with the prescribed procedure shall be subject to only those rules, regulations and policies that are in force at the time of issue of notice for invitation of bids".
Rule 31.
"Clarification of bids.--(1) No bidder shall be allowed to alter or modify his bid after the bids have been opened. However, the procuring agency may seek and accept clarifications to the bid that do not change the substance of the bid".
Rule 38.
"Acceptance of bids.---The bidder with the lowest evaluated bid, if not in conflict with any other law, rules, regulations or policy of the Federal Government, shall be awarded the procurement contract, within the original or extended period of bid validity".
12. It needs to be seen if in the light of the afore-quoted Public Procurement Rules, 2004, CDA was bound to reject respondent No,6's bid or consider it for award of contract. Rule 25 prescribes the bid security of 5 per cent but the form of such bid security as to whether it should be an insurance guarantee or Deposit at Call is left to the option of the procuring agency. Rule 30 mandates that the bids have to be evaluated in accordance with the terms and conditions set forth in the prescribed bidding documents. In the present case, the bidding documents not only prescribed bidding security in the form of Deposit at Call or bank guarantee but also emphasized that if a bid was not accompanied by Deposit at Call or bank guarantee, the same was to be rejected. CDA's failure to reject respondent No,6's non-responsive bid and accept it for consideration was, thus, in violation of Rule 30. In fact, by allowing respondent No,3 to substitute its insurance guarantee with a Deposit at Call, CDA allowed respondent No,6 to alter or modify its bid after the opening of a tender which is prohibited by Rule 31. In this view of the matter, the argument that substitution of insurance guarantee by Deposit at Call is a case of clarification rather than alteration or modification is ex- facie misconceived and untenable. There is also no doubt that respondent No,6 was unduly favoured whereas the appellant, who had submitted a responsive bid, was ignored despite having a right to be considered for award of a contract for being the lowest bidder in view of Rule 38 read with Rule 2(h).
13. The bid of respondent No,6, being non-responsive by reference to the bidding requirements, could not have been considered at all but had to be rejected. In fact, the said offer was initially rejected as invalid but was unlawfully revived and an opportunity was unlawfully and unduly given to respondent No,6 to make, amend and substitute its insurance guarantee with a Deposit at Call one day later. Once the bids had been opened, CDA, the procuring agency, could not allow any bidder to amend its bid so as to gain an unfair and undue advantage over others as any such indulgence is contrary to the norms of any bidding.
' Enigmatically enough, the CDA has made a volte face as in the pre-bid meeting held a few days earlier on 3-5-2010, it had categorically told the bidding contractors that an insurance guarantee would not be allowed as bid security.
14. Another important aspect in the matter is the report of the CDA Consultant who found that the rates of respondent No,6 were unworkable which was totally ignored by CDA. CDA's stand that the contract should be awarded to respondent No,6 for having submitted the lowest rates cannot be given any significance as the unworkable rates appear to have been offered with the sole object of procuring the contract and nothing more. We say this because during the course of the hearing, we asked respondent No,6's counsel if respondent No,6 was ready and willing to offer the same rates in case re-bidding was called for. In response, quite surprisingly it was stated that in case of re-bidding respondent No,6 will not be able to offer the same rates as they are no longer economical or workable. This stand of respondent No,6 appears to reinforce observation of CDA's consultants that the rates offered by respondent No,6 are unworkable and unrealistic.
15. In view of the foregoing discussion, the impugned judgment being not sustainable is set aside and CDA is directed to either consider the bid of the appellant along with other bidders who had tendered responsive bids or in the alternative, CDA is at liberty to call for a rebidding of the contract in question. This ICA is allowed in the above terms with no orders as to costs.