The petitioner is a company engaged in the business of manufacture and sale of different types of firefighting equipment and other specialized/allied vehicles. On 3.4.2009, Respondent No, 3 floated a tender for supply of 48 fire trucks. The petitioner participated in the tender by submitting a technical and financial bid. Other companies also submitted bids including Respondents No, 4 and
5. The technical bids were opened on 24.4.2009 in the presence of all participating bidders. The petitioner's technical bid was found compliant However, before opening of the financial bids, Respondent No, 3 cancelled the biding process and re-tendered the original tender with down graded specifications. In the original tender specifications, the fire pump performance was required to be for multi purposes ranging from low pressure (minimum 3000 LPM at, 10 Bar) to high pressure (200 LPM at 40 Bar). The down graded re-tender was for single purpose fire pump (minimum 3000 LPM at 10 Bar). The petitioner participated in the re-tender by submitting technical and financial bids. The technical bid was opened on 12.9.2009. The petitioner's technical bid along with that of other companies as found to be compliant whereafter financial bids were opened on 8.10.2009. The petitioner claims that his financial bid was the lowest and it was entitled to the award of the aforesaid contract.
2. It appears that instead of awarding the contract to the petitioner, the petitioner was called for a meeting of the Standing Purchase Committee for negotiating the price of the tender. The petitioner objected to such meeting being held and wrote letters to various functionaries of the Department as well as the Provincial Government including the Chief Minister and the Chief Secretary, Punjab.
While the matter of award of the contract was pending, Respondent No, 3 wrote a letter to the petitioner alleging that an Ariel Platform which is used in firefighting operations and had been supplied by the petitioner to Respondent No, 3, had been found defective, had met with an accident causing serious injuries to the firemen who were operating the platform. It had neither been replaced nor repaired by the petitioner. It had also not paid any compensation to the injured firemen. The respondent alleged that the conduct of the petitioner/Company was unprofessional and un-business like and, therefore, it had been decided to blacklist the petitioner. It is alleged that by reason of such blacklisting the petitioner was debarred from winning the contract for supply of 48 fire-trucks or to submit tender for supply of 28 water bourse trucks. It may be pointed out that for the latter contract the petitioner had participated in the process but its bid was not found to be the lowest. The petitioner has not pressed its claim regarding the tender for supply of 24 bourse trucks.
3. The petitioner agitated the matter of blacklisting and refusal to award the tender for procurement of 48 fire-trucks to it and in this regard approached the Chief Minister, Punjab, as well as the Chief Secretary of the Province. However, its efforts did not bear fruit. The petitioner thereafter filed a complaint with the Public Procurement Regulatory Authority (PPRA) which probed the matter and was informed by Respondent No, 3 that the Standing Purchase Committee of Respondent No, 3 had decided to award the contract to the ,bidder who had offered the lowest price. Therefore PPRA declined to grant any relief.
4. The petitioner, inter alia, has three main grievances against the respondents:--
(i) blacklisting of the petitioner by Respondent No, 3;
(ii) Award of contract for supply of 48 Fire Trucks to Respondent No, 4 by Respondent No, 3, and
(iii) Non-renewal of the license of the petitioner.
5. The learned counsel for the petitioner submits that Respondent No, 3 had no lawful authority to cancel the tender. The said action of Respondent No, 3 was patently mala fide and detrimental to the interests of the petitioner. He further submits that Respondent No, 3 cancelled the original tender and ordered retendering without lawful reason which resulted in financial loss to the petitioner. He maintains that it was the duty of Respondent No, 3 to adopt a transparent procedure prescribed by the rules and the law for acceptance of bids which was not followed by Respondent No,
3. In this regard the learned counsel alleges violation of the Punjab Purchase Manual and the Public Procurement Regulatory Authority Ordinance, 2002.
6. The learned counsel for the petitioner has vehemently argued that the order of blacklisting the petitioner was tainted with mala fide. The petitioner was condemned unheard and the principle of audi alterm partem was violated. He argues that the petitioner/Company was blacklisted illegally to disentitle the petitioner from the award of contract. He therefore submits that a conscious effort was made by Respondent No, 3 to prevent the petitioner from participating in or winning the contracts for supply of equipment to the said respondent. He argues that by reason of blacklisting of the petitioner, its reputation and good will had suffered on account of bias and mala fide on the part of Respondent No,
3. He maintains that the matter of renewal of the petitioner's registration is also being lingered on without justification in order to keep the petitioner under pressure and to prevent the petitioner from participating in other tenders of the Government of the Punjab. The petitioner has prayed that the impugned letter dated 21.10.2009 whereby the petitioner was blacklisted be declared to be without lawful authority. The petitioner also prays that Respondent No, 3 be restrained from awarding contracts for supply of 48 fire-trucks to Respondent No, 4 and 24 water bouser trucks to Respondent No, 5.
7. The respondents were summoned and were represented through counsels. They also filed their respective reports and parawise comments. They have taken the stance that the petitioner has approached this Court with un-cleaned hands and has concealed the main reason for its blacklisting. It has been pointed out that the petitioner supplied defective equipment which had not performed in a satisfactory manner. The Ariel Platform supplied by the petitioner had design defects, had malfunctioned and caused serious injuries to the rescuers who were operating the said equipment. The petitioner was given repeated opportunities and a period of almost one year to rectify the design defect in the said equipment. However, on account of failure to do so, Respondent No, 3 was left with no other option but to blacklist the petitioner. It has further been pointed out by the learned counsel for Respondent No, 3 that the petitioner has a history of delayed supply of goods which has consistently resulted in serious operational difficulties for Respondent No, 3.
8. It is argued that the reason for rejection of the petitioner's bid was that its financial bid was conditional in nature. Therefore, being contrary to the terms and conditions of the bid and violative of the Purchase Manual of the Government of Punjab, the same was rejected. As such the question of negotiations with the petitioner did not arise. The learned counsel for Respondent No, 3 has pointed out that 48 fire-trucks which were the subject matter of the tender, were procured at a price far lower than the one offered by the petitioner. It is argued that Respondent No, 3 is a rescue and emergency service and cannot take the risk of procuring equipment from a firm which has a history of unsatisfactory performance in previous contracts.
9. The learned counsel for the Respondent No, 3 has pointed out that none of the-platforms which had initially been offered under the first bid were technically compliant. Even after three technical meeting and lapse of considerable time, the bidders including the petitioner, failed to demonstrate their equipment. Moreover, the sudden up-gradation of truck chassis by S&GAD from 16000 to 18000 GVW created an additional requirement. After a series of meetings of the Technical Committee, the vendors were unable to provide proper details and test of advanced fire pumps as per required specifications. In addition, the issue of sudden up-gradation of ISUZU FDR truck chassis was unresolved as the same was standardized by the Inter-Department Standardized Committee of the S&GAD, Punjab. Therefore, the Technical Committee was left with no choice but to scrap the tender and retender with revised specifications. Additionally, it is pointed out that once the technical bids had been rejected and the process scrapped, there was no occasion for opening of financial bids in the first round of bidding. It has specifically been denied that the first round of bidding was scrapped to deprive the petitioner of a chance to get the contract.
10. The learned counsel for the Respondent No, 3 maintains that the offer of the petitioner in the second round of bidding was contrary to the provisions of Purchase Manual of the Government of Punjab in terms of Para 99 of Annex XX(3) with respect to price fluctuation on account of fluctuation in the currency exchange rate while the price quoted by the petitioner was variable in case of exchange rate fluctuation; whereas the other bids did not place any such condition. The bid of the petitioner being conditional was, therefore, not liable to be considered. It has finally been argued that the procurement undertaken by the respondent is at the lowest available price in strict compliance of Punjab Emergency Service Rules, 2007 and the Purchase Manual of the Government of the Punjab.
11. I have heard the learned counsels for the parties and gone through the record with their assistance.
12. As discussed above, there are three main grievances of the petitioner, namely:--
(i) blacklisting of the petitioner company;
(ii) failure on the part of the Respondents No, 1 to 3 to award the contract for supply of 48 fire- trucks to the petitioner, and (iii)non-renewal of the license of the petitioner.
13. In the first instance, I propose to take up the issue of blacklisting. It appears that the main ground on the basis of which the petitioner was blacklisted was that it had supplied an Ariel Platform which malfunctioned. Despite efforts on the part of Respondents No, 1 to 3 to persuade the petitioner to rectify the defect and make the equipment functional, the petitioner allegedly failed to do so. The record indicates that before purchase of the Ariel Platform, representatives of the respondents went to France at the expense of the petitioner/ Company. They inspected the equipment at the manufacturing facility of EGI, (a French Company, which had manufactured the platform in question) and approved the same. On receipt of their approval, the petitioner in its capacity as an importer procured the equipment and informed the respondents vide letter dated 28.12.2006 that the equipment had been imported and it may be inspected at Karachi. Vide letter dated 12.1.2007, the petitioner requested the respondents to issue work order so that the equipment could be supplied. Vide letter dated 7.5.2007, the work order was issued. In terms of the work order, the petitioner was required to issue a warranty for a period of one year starting from the date of delivery/satisfactory inspection of the equipment. The equipment was accordingly supplied on 21.5.2007 and in order to cover the warranty a warranty bond for a sum equivalent to 10% of the contract price was submitted with the Department. It appears that the equipment performed well during the warranty period which is evident from the fact that on completion of the warranty period the warranty bond was returned to the petitioner. The incident which formed the basis of blacklisting occurred on 2.11.2007, i,e, about eleven months after expiry of the warranty period. It was argued on behalf of the petitioner and I agree that the petitioner could not be held responsible for any defect that occurred in the equipment after expiry of the warranty period. Further, the petitioner was not the manufacturer of the equipment but had imported it after the same had been approved by the experts of Respondent No,
3. It, however, cooperated with the respondents without being obliged to do so, arranged repair of the equipment free of cost and also coordinated with. EGI France, to send their representatives to Lahore to ascertain the cause of accident. Vide letter dated 14.10.2009, the French Company responded by stating that while it had formed a team comprising of technical experts to visit Pakistan, they were unable to come to Pakistan on account of the law and order situation and travel advisory warning circulated by the French Government.
They, however, undertook, to send spare parts in order to implement repair of the equipment.
Subsequently, vide letter dated 12.11.2009, the French manufacturer requested the respondents to provide information and data to enable them to ascertain the causes of malfunctioning of the equipment. It is significant to note that Respondent No, 3 was also informed through the said letter that the experts had tested about twenty pieces of similar equipment in service for five, years and no problem of the nature that had occurred in Pakistan, had arisen anywhere else. I have also gone through the letter dated 18.12.2009 issued by a Deputy Director of Respondent No, 3 addressed to the petitioner in which appreciation was communicated on the concern of the French Company to repair the equipment. Finally it is evident from the record that the French Company had trained two officials of Respondent No, 3 to operate the equipment. It is not denied by Respondent No, 3 that the said persons had since retired from Respondent No, 3 and no other person had been imparted training to operate the equipment. The question whether the platform had design defects and hence inherently defective or malfunctioned on account of improper operation by an untrained person required inquiry and probe by experts. Nothing has been placed on record to show that this was done.
14. It is also noteworthy that even if the respondents had grounds to blacklist the petitioner, they were required to follow the basic principles of natural justice. The respondents were required to issue a show-cause notice. The petitioner should have been given an opportunity to defend itself in a meaningful hearing and thereafter in case the petitioner was found to be delinquent in its obligations, the appropriate penalty could have been imposed in accordance with law. Any blacklisting undertaken without fulfilling the aforesaid requirements cannot be held to be lawful.
Unlawful blacklisting militates against the fundamental rights of freedom of trade as enshrined in Article 8 of the Constitution of Islamic Republic of Pakistan. The aforesaid legal position is supported by Dawood Corporation (Private) Limited and another Vs. The Director-General, Department of Supplies, Government of Pakistan, Ministry of Industries, Karachi and two others (1988 CLC 788), and New Jubilee Insurance Company Ltd. Karachi Vs. National Bank of Pakistan, Karachi (PLD 199 S.C.1126).
15.For the aforesaid reasons, I hold that the order dated 21.10.2009 passed on behalf of Respondent No, 3 whereby the petitioner was blacklisted was without lawful authority and is, therefore, set aside.
16.Coming to the question of non-renewal of the registration of the petitioner/Company, the matter has lingered on and has not been decided by the competent authority so far. In this view of the matter, I am inclined to refer the matter of renewal of registration of the petitioner to Respondent No, 1 in view of the fact that the petitioner has expressed reservations regarding the impartiality of Respondent No, 3 in this matter. A direction is, therefore, issued to Respondent No, 1 to summon the entire record relating to renewal of registration of the petitioner, hear the petitioner himself and all other concerned parties or appoint an impartial senior officer to decide the matter within a period of 30 days from the date of receipt of a certified copy of this order.
17.Finally I turn to the question of award of contract for procurement of 48 fire-trucks. The record indicates that in response to a tender notice issued by Respondent No, 3 regarding procurement of 48 fire-trucks, six firms including the petitioner, submitted their sealed technical and financial bids.
The bids were not found to be in accordance with requirements by the Purchase Committee of Respondent No,
3. In addition, none of the firms was technically qualified. The record indicates that three technical meetings were held. However, none of the bidders including the petitioner was able to demonstrate its equipment. The situation was further complicated on account of up-gradation of the technical specification of the truck chassis by the Services and General Administration Department from 16000 GVW to 18000 GVW. The Technical Committee also required the vendors to provide proper specifications and details of the fire pumps sought to be acquired and produce them for testing. None of the bidders was able to do so. In addition, the issue of sudden up- gradation of ISUZU FTR truck chassis also remained unresolved as the same was standardized by the Inter-Departmental Standardization Committee of the S&GAD, Government of Punjab. It was in this background that the Technical Committee cancelled the tenders and decided to float fresh tenders with revised specifications. It is, therefore, evident that none of the bidders had a vested right to get its financial bid opened, evaluated and, if found to be lowest, to be awarded the contract. Even otherwise, the tendering authority had reserved the right to cancel one or all tenders without assigning any reason and without incorporating any liability. On the basis of facts and circumstances narrated above, I am unable to hold that cancellation of the tender was unlawful, arbitrary or without justification.
18.In the second round of bidding the petitioner submitted its tender on 12.9.2009 which consisted of a technical as well as financial bid. The petitioner was found technically compliant along with others. However, when the financial bid was opened, the petitioner's bid was found to be non- compliant on account of being conditional. It appears that five companies had participated, in the process, out of which two had been disqualified at the time of opening the technical bids. In order to get the lowest possible price, a Negotiating Committee was constituted by Respondent No, 3 which negotiated a price which was lower than the one offered by the petitioner notwithstanding the fact that its financial bid had been found non-compliant on account of being conditional.
Consequently, the contract for supply of 48 fire-trucks was awarded to Respondent No, 4.
19.During pendency of this petition and on the application of the petitioner, vide order dated 1112.2009, it was directed that the process of negotiation may continue, however, the contract shall not be awarded till the next date of hearing. This order was passed considering the sensitive nature of the contract and keeping in view the fact that the equipment was required to be procured for use of Public Emergency Service which was in urgent need of the equipment in question to increase its response and ability to conduct emPrg3ncy firefighting and rescue operations. Further, at that point in time Respondents No, 3, 4 and 5 were not before this Court. When the said respondents entered appearance, it was stated that the contract for supply of 48 fire-trucks had already been awarded in favour of Respondent No, 4 at a price which was lower than the price offered by any of the bidders including the petitioner. It was also stated that Respondent No, 4 had already started fabrication work and supply of the equipment was soon to commence.
20.The learned counsel for the petitioner submits that the award of the contract and the consequent agreement between Respondents No, 3 and 4 was backdated in order to take the position that the restraining order passed by this Court on 11.12.2009 was inapplicable to the respondents. In this regard the learned counsel has sawn my attention to the fact that the agreement between the petitioner and Respondent No, 4 was executed on non-judicial stamp paper. I am afraid, the said fact alone is not sufficient to hold that the agreement was backdated in order to avoid the implications of the restraining order passed by this Court, Further, the petitioner has alleged mala fides on the part of Respondent No,
3. Neither the particulars nor the reasons for such mala fides have been given in the petition or brought to my notice during arguments. It is settled law that mala fides need to be specifically alleged and the onus to prove such mala fides lies heavily on the shoulders of the person alleging the same. On the basis of the record available, the petitioner has not been able to discharge the said onus.
21.Simply stated, the case of the petitioner is that it submitted, a tender for award of a contract which was rejected and fresh bidding was ordered under different specifications. The financial bid submitted by the petitioner was found to be conditional, hence non-compliant and the tender was awarded to Respondent No, 4 which has since supplied the equipment admittedly at a price lower than the price offered in the non-compliant bid of the petitioner. It is settled law that mere offer by a party does not confer an absolute right for award of a contract. As such the relief relating to award of contract to the petitioner cannot be granted. Reference in this regard may usefully be made to Petrosin Corporation (Pvt.) Limited Singapore etc Vs. Oil and Gas Development Company Ltd. (2010 SCMR 306) and Reliance Consultancy and Engineering Works Private Limited Vs. Federation of Pakistan etc (2010 CLC 1046).
22.It is not the case of the petitioner that the bids submitted by Respondents No, 4 was non- compliant or the price at which the trucks were supplied by the said respondent was higher than the one offered by the petitioner. It is abundantly clear, as has been categorically verified by the representative of Respondent No, 3 that 48 fire-trucks supplied by Respondent No, 3 fulfilled all requisite qualitative and quantitative specifications criteria and standards and the price paid to Respondent No, 4 is the lowest price at which similar equipment is available in the market. The price paid lower than the price at which the petitioner had offered the said vehicles. In these circumstances, it would neither serve any useful purpose nor the petitioner has been able to make out any ground for this Court to declare the contract as null and void.
23.Notwithstanding what has been stated above, it is clear and obvious that the entire case of the petitioner including the question whether or not the contract executed in favour of Respondent No, 4 was backdated, raise controversial questions of fact which cannot be resolved in exercise of Constitutional Jurisdiction of this Court as a thorough probe and investigation would be needed to settle the controversy. It is well settled by now that the Superior Courts would not involve themselves into investigations of disputes in which questions of fact necessitate a factual probe and recording of evidence. Extra-Ordinary Jurisdiction of this Court is intended primarily for providing expeditious F remedy in cases where illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated and disputed facts. Disputed questions of fact decision of which is possible only after collection of evidence can be determined by the Courts having plenary jurisdiction in the matter. On such grounds a constitutional petition is incompetent. Reference in this regard may usefully be made to Anjuman Fruit Arhtian and others Vs. Deputy Commissioner, Faisalabad and others (2011 SCMR 279); Ataur Rehman Khan Vs. Dost Muhammad (1986 SCMR 598); Muhammad Akhtar Vs. President, Cantonment Board, Sialkot Cantt. (1981 SCMR 291); Mian Muhammad Vs. Government of West Pakistan (1968 SCMR 935); Abdur Rashid Bhhiya Vs. Province of East Pakistan (PLD 1970 Dacca 633); Zuhra Begum Vs. Sajjad 'Hussain (1971 SCMR 697); Landale & Morgan (Pak) Ltd. Vs. Chairman, Jute Board Dacca (1970 SCMR 853); Mahboob Alam Vs. Secretary to Government of Pakistan (1969 SCMR 217); Umar Daraz Vs. Muhammad Yousaf (1968 SCMR 880), Saghir Ali Vs. Mehar Din (1968 SCMR 145); Abdur Rehman Khan Vs. Deputy Commissioner Jessoe (PLD 1968 Dacca 367); Lutfonnessa Ibrahim Vs. Province of East Pakistan (PLD 1969 Dacca 779); Mainuddin Ahmed Vs. Delimitation Officer (PLD 1965 Dacca 263); Province of East Pakistan Vs. Kshiti. Dhar Roy (PLD 1964 SC 636); Abdul Rab Choudhury Vs. Registrar of Joint Stock Companies (PLD 1960 Dacca 541); Md.Nur Hussain Vs. Province of East Pakistan (PLD 1960 Dacca 31); Chan Mian Vs. IT and Sales Tax Officers (PLD 1960 Dacca 523); Parbatipur Industries Vs. Chief Secretary East Pakistan (12 DLR 255); Md. Noor Hussain Vs. Province of East Pakistan (11 DLR 367); State Life Insurance Corporation of Pakistan Vs. Tobacco Co, (PLD 1983 SC 280), and Md. Ibrahim Vs. Province of East Pakistan (15 DLR 703). The Honourable Supreme Court of Pakistan has held that it is mandatory and obligatory for a party invoking the Constitutional Jurisdiction to establish a clear legal right which should be in controversy. In light of facts and circumstances narrated above, the legal and contractual rights and entitlement of the petitioner is at best controversial. The case set up by the petitioner does not meet the aforenoted criteria. Reference in this regard can be made to Benedict F.B. Souza Vs. Karachi Building Control Authority (1989 SCMR 918); Karachi Municipal Corporation Vs. Hargina Salt Chemicals (1988 SCMR 1259); Ehsanul Haq Kiani Vs. Alied Bank of Pakistan, Karachi (1984 SCMR 963); Mian Muhammad Vs. Municipal Committee (1983 SCMR 732); N.M.Khan Vs. Chief Settlement and Rehabilitation Commissioner (1970 SCMR 158); Muhammad Ibrahim Mondal Vs. Province of East Pakistan (PLD 1964 Dacca 522); Rizwan Co-operative Society Vs. Custodian of Evacuee Property (1978 SCMR 449); Muhammad Sadiq Vs. Commissioner Rawalpindi Division (1973 SCMR 422); Musharofa Begum Vs. Nayyar Hussain (1984 SCMR 377); Muhammad Ishaq Vs. Abdul Haque (1974 SCMR 28); Niaz Muhammad Vs. Abdul Aziz (1982 SCMR 883), and Abdul Rahman Vs. Said Muhammad (1982 SCMR 372).
24.Further, there is no cavil with the proposition that exercise of Constitutional Jurisdiction by this Court can be declined where the petitioner has not exhausted all remedies available to him before filing of the Constitutional Petition. In the instant case it is clear that the petitioner has approached this Court without exhausting other adequate and efficacious remedies which were available to him. Reference in this regard may be made to Ejaz Hussain Vs. Messrs Hotel Jabees Ltd. (1990 PLC 643); Allah Bakhsh and another Vs. Muhammad Ismail and others (1987 SCMR 810); Ghulam Rasool Vs. Returning Officer (PLD 1985 Karachi 315); Golden Industries Ltd. Vs. Province of Sindh (PLD 1983 Karachi 76) and Lipton (Pakistan) Ltd. Karachi Vs. Government of Sindh (PLD 1977 Karachi 714). This is another reason why the relief sought by the petitioner cannot be granted.
25.For reasons recorded above, this petition is partly allowed to the extent of setting aside the order dated 21.10.2009 regarding blacklisting of the petitioner and issuing a direction to process the case for renewal of the registration of the petitioner in accordance with law in terms of Para No, 12 to 14 of this Judgment.
26.However, in view of the factual controversies involved, I decline to exercise the Constitutional Jurisdiction of this Court to the extent of granting relief for award of the contract to the, petitioner for supply of 48 fire trucks to Respondent No,
3. To the said extent this petition is found to be without merit and is accordingly dismissed. No order as to costs.