' MUNIB- AKHTAR, J. Two applications, both filed by the plaintiff seeking interim injunctive relief, require determination. The applications arise in the following circumstances. The plaintiff carries on the work of a contractor engaged in the construction business, and is registered with the Pakistan Engineering Council. It is also qualified to de work as a contractor foi the defendant No,1 ("DHA"). On or about 25-10-2010, DHA placed advertisements in the press seeking to prequalify contractors to participate in developing international standard infrastructure for its Phase VIII, Karachi. The advertisement noted that Messrs Osmani and Company (Pvt.) Ltd. ("the Consultant") had been engaged as the consultant and engineer "to plan, design and supervise all works under the project since inception through execution in consultation with DHA". The advertisement identified 10 main areas of work for which the contractors would be prequalified, including bulk water supply and water reservoir works, sewerage works, drainage works. Building works, and sector/sub-sector infrastructure development works, etc.
2. The plaintiff submitted its application and was prequalified. Thereafter, DHA invited tenders for certain sub-sector infrastructure works and the present application is concerned with tenders invited for work in the sub-sector identified as DHA8-INFRA-D-West (herein after referred to as "the Sub-Sector"). The plaintiff participated in this tender as did the defendant No, 2, and eventually, the work was awarded to the defendant No, 2 for a total amount of Rs,525.473 million. The total area 4 over which the infrastructure development works had to be undertaken was 240.345 acres. It appears that after the contract was awarded to the defendant No, 2, the latter discovered that over a certain portion of the area, comprising around 55.212 acres, there had been massive dumping of garbage, offal and other solid waste by the Clifton Cantonment Board. Work on the Sub-Sector would be seriously jeopardized on account of the dumped garbage. The Consultant was consulted in a manner shortly to be explained, and submitted a report dated 9-1-2012 in which it gave a range of options as to how to move forward to resolve the matter. One option was to ask the defendant No,2 to remove the garbage, either through an addendum to the contract or a variation order as possible thereunder. It was decided to adopt the last mentioned option, and the defendant No,2 was asked to submit its offer for the cost of removing the garbage. The said defendant initially quoted an amount of Rs,383.684 million, which was subsequently revised downwards to Rs,269.932 million by means of its letter dated 28-12-2011. Eventually, this amount was further reduced to Rs,246.988 million.
3. The present suit was instituted on 27-1-2012 to challenge the award of the contract for the infrastructure development work on the Sub-Sector to the defendant No,2, as also the subsequent award of the work to remove the garbage from a portion thereof as described above. Suitable declatory and injunctive relief was sought. Along with the suit, C.M.A. 821 of 2012 was filed seeking to restrain DHA from awarding the work for the removal of garbage to the defendant No,2 and the latter from doing any infrastructure development work at the Sub-Sector.
' Notice was issued for 2-2-2012, and it was also ordered that the work for the removal of garbage should not be awarded to the defendant No,2, "if not issued earlier". It was then brought on record that the work had been awarded on or about 11-1-2012. Consequently, the second application, C.M.A. 1929 of 2012, was filed by the plaintiff seeking to restrain the defendant No,2 from doing any work in respect of the removal of garbage from the Sub-Sector. It is these two applications that, as noted above, fall for determination. The entire matter was argued in connection with, and with reference to, the question of whether the work of removing garbage had been lawfully awarded to the defendant No,2. Although certain other points were raised and submissions made by learned counsel for the plaintiff, and replied to by learned counsel for DHA and the defendant No,2, the scope of the interim relief sought at the hearing was confined to the foregoing question.
Accordingly, I have not burdened this decision with reference to or consideration of those other points and submissions.
4. Learned counsel for the plaintiff submitted that work for the removal of garbage had been offered, and awarded, to the defendant No,2 directly without any tenders being called and without giving the other prequalified contractors (includihg the plaintiff) an opportunity to make offers and be awarded the work if found more suitable. Learned counsel submitted that the procedure followed was contrary to the Public Procurement Rules, 2004 ("2004 Rules") framed under the Public Procurement Regulatory Authority Ordinance, 2002 ("2002 Ordinance") and thus amounted to misprocurement in terms thereof. He relied in particular on Rules 20 and 2.1 of the 2004 Rules. He contended that the work could only have been awarded after open competitive bidding, which was admittedly not done. Learned counsel further submitted that since admittedly the site had to be cleared as an initial exercise, DHA ought to have first invited bids for removal of the garbage in accordance with the prescribed procedure, and then (and separately) bids for the infrastructure development work to be carried out at the Sub-Sector. This was both the lawful and logical course to adopt. However, DHA had done the exact opposite, which not only was unlawful but smacked of mala fides inasmuch as the defendant No,2 obtained an unfair advantage and benefit over other equally competent prequalified contractors such as the plaintiff. In this context, he drew attention to the fact that no intimation had all been given that there was or could be worked for removal of garbage when tenders were invited for the infrastructure development work and submitted that that put the bona fides and good faith of DHA in serious doubt. He submitted that the plaintiff was entitled to suitable interim injunctive relief in respect of the award of work to remove the garbage.
5. Learned counsel for DHA opposed the applications. Ile submitted that all acts done by DHA were lawful and proper. Learned counsel stated that the contract for the infrastructure development work at the Sub-Sector was awarded to the defendant No,2 on or about 30-10-2011 (hereinafter "the main contract"). It was only thereafter that it was discovered that there had been a massive dumping of offal, garbage and other solid waste on a significant portion of the Sub-Sector especially by the Clifton Cantonment Board which had been exacerbated by the dumping done after the Eid-ul-Azha holidays in the first week of November, 2011. Learned counsel emphasized that the nature of the garbage was highly toxic and dangerous to health. The matter was referred to the Consultant, who furnished its detailed report on 9-1-2012. It was specifically noted in the report that the main cause of the problem arose after the execution of the main contract. The Consultant carefully quantified the amount and nature of work required to be done to remove the garbage. A number of options were identified by the Consultant. One was that Clifton Cantonment Board be asked to remove the garbage. However, the Consultant noted that the work on the Sub-Sector would have to be at least partially suspended. The second was for the contractor to clear his right of way by, essentially, pushing the garbage to one side. However, the Consultant concluded that the piled up garbage would continue to pose a serious hazard jeopardizing the health and safety of all concerned, and would in any case have to be removed subsequently either by DHA or someone else. The third option was for the entire garbage to be removed before the work under the main contract. For this, there were two possible sub-options. One was for DHA to appoint a "contractor for clearance of the garbage through normal bidding process". It was estimated that the total time involved (i,e,, bidding process, award of contract and completion of work) would be between five to six months. During this period, work under the main contract would have to remain suspended and the defendant No,2 could make a claim for extension of time and/or additional payments. The second sub-option was for the work to be awarded to the defendant No,2 itself. The Consultant noted that this could be done "either through an addendum to the existing contract or a variation order". The possibility of any delay in the main contract would be eliminated since the defendant No,2 had indicated that if the work was awarded to it, it would not ask for any extension of time. The Consultant did note that the "applicable government/DHA rules and regulations for this option may however be ascertained" by DHA.
6. Learned counsel submitted that the work to remove the garbage was awarded to the defendant No,2 in light of the Consultant' s report and taking all other factors into consideration. It was a lawful decision completely justified in the prevalent facts and circumstances. Learned counsel submitted that in fact the work for the removal of garbage had already been completed by around 12-3-2012 and the work on the main contract had also been substantially completed. He denied that there were any mala fides involved in the award of the work to the defendant No,2. He contended that the work of removal of garbage came within the scope of a variation order in terms of the main contract and hence could be awarded directly to the defendant No,2 in terms of the relevant provisions thereof. He prayed for dismissal of the applications.
7. Learned counsel for the defendant No,2 adopted the submissions by learned counsel for DHA and further submitted the award of both the main contract as well as the work for, removal of the garbage was well within the scope of a variation order. He submitted that after the execution of the main contract, the defendant No,2 received notice of commencement of work on 3-11-2011. When the work was commenced, the dumping of the garbage in the Sub-Sector was discovered and a notice in this regard was given to the Consultant on 25-11-2011. The Consultant inspected the Sub- Sector and then prepared its report and eventually a variation order was issued to the defendant No, 2 in terms of the main contract. Learned counsel submitted that the defendant No, 2 expressly undertook that if the work of removal of garbage was awarded to it, no extension of time for completion of the main contract would be sought. Learned counsel submitted that the defendant No,2 had completed the work of the removal of garbage speedily and even the Work under the main contract itself was around 60% complete. He submitted that the plaintiff had failed to make out any case whatsoever and the applications merited dismissal,
8. Exercising his right of reply, learned counsel for the plaintiff denied that the work of removal of garbage amounted to a variation within.The meaning of the main contract. He submitted that it was work of a different nature altogether, which ought to have been properly tendered as required by and in terms of the 2004 Rules.
9. I have heard learned counsel as above and examined the record with their assistance. The relevant contractual provisions are to be found in the General Conditions portion of the main contract ("General Conditions"). In my view, the point in issue between the parties can be stated in the form of the following questions:-
(a) Did or could the work for the removal of garbage amount to a variation within the meaning of the General Conditions?
(b) Even if the answer to (a) is in the affirmative, was DHA nonetheless bound to invite fresh and separate tenders for the work in terms as provided under the 2004 Rules?
10. Clause 51.1 of the General Conditions provides as follows:-- "Alteration, Additions and Omissions Variations.--- The Engineer shall make any variation of the form, quality quantity of the Works or any part thereof that may, in his opinion, be necessary and for that purpose, or if for any other reason it shall, in his opinion, be appropriate, he shall have the authority to instruct the Contractor to do and the Contractor shall do any of the following:-
(a) increase or decrease the quantity of any work included in the Contract,
(b) omit any such work (but not if the omitted work is to be carried out by the Employer or by another contractor),
(c) change the character or quality or kind of any such work,
(d) change the levels, lines, position and the dimensions of any part of the Works,
(e) 'execute additional work. Of any kind necessary for the completion of the Works, or
(f) change any specified sequence or timing of construction of any part of the Works.
' No such variation shall in any way vitiate or invalidate the Contract, but the effect, if any, of all such variations shall be valued in accordance with Clause 52. Provided that where the issue of an instruction to vary the Works is necessitated by some default of or breach of Contract by the Contractor or for which he is responsible, any additional cost attributable to such default shall be borne by the Contractor."
' Learned counsel for DHA and the defendant No,2 relied in particular on sub-clauses (c) and (e) to contend that the work for removal of garbage came within the scope of clause 51.1. It will be noted that this clause uses the word "works" in both capitalized and lower case forms Clause 1.1 contains the following definitions (among others) in its sub-clause (f):---
(i) "Works' means the Permanent Works and the Temporary Works or either of them as appropriate.
(ii) "Permanent Works" means the permanent works to be executed (including Plant) in accordance with the Contract.
(iii) "Temporary Works" means all temporary works of every kind (other than Contractor's Equipment) required in or about the execution and completion of the Works and the remedying of any defects therein.
' In my view, clause 51.1 can be regarded as comprising of two parts. The first part relates to any "variation of the form. Quality or quantity of the Works or any part thereof being necessary in the opinion of the Engineer (i,e,, the Consultant), and the second part relates to "any other reason" that is appropriate in his opinion. If either part applies. Then the Engineer may instruct the Contractor (i,e,, the defendant No,2) to do any of the things specified in any of the sub-clauses (a) to (f), and the Contractor is bound to so act. In my view, the work for discovery of the garbage on, and its removal from, a portion of the Sub-Sector cannot be regarded as relating to either the form or quality or quantity of the Works. In other words, the first part of clause 51.1 is inapplicable. The question therefore is whether the garbage discovered on a portion of the Sub-Sector could be regarded as any other reason" such that the Engineer was of opinion that it was appropriate for him to instruct the Contractor to remove it and such removal would come within the scope of either of sub-clauses (c) or (e).
11. In my view, the question just posed can best be answered by looking at what it is that the Engineer can instruct the Contractor to do in terms of sub- clauses (c) or (e). Now. Sub-clause (c) uses the words "such" in relation to the work therein described. In my view, the use of this word clearly refers and relates the matter back to sub-clause (a), which refers to "any work included in the Contract". The work of removal of the garbage cannot be regarded as work that is included in the Contract, i,e,, the main contract. In my view therefore; sub-clause (c) has no application to the facts and circumstances of the present case. Sub-clause (e) is more general. It enables the Engineer to instruct the Contractor to "execute additional work" that can be of "any kind" that is necessary for the "completion of the Works". The use of the word "completion" is significant. The sub-clause could have, but does not, use the words "execution" or "commencement" or some other word of similar import. In my view, sub-clause (e) has a limited scope and applicability. It is focused on, and limited to, the completion of the Works. In other words, it presupposes that the Works have commenced but that for some reason the Engineer is of opinion that it is appropriate for additional work to be done in order to achieve completion. However, the issue with regard to the garbage was not relatable directly to the completion of the Works. In my view, it would impermissibly stretch sub-clause (e) beyond what is clearly the scope and extent of its ambit if it were to be applied to the matter of the discovery and removal of garbage. The answer to the first question posed in para 9 must therefore be in the negative.
12. This does not however mean that one must move to the second question. This is so because there is another clause in the General Conditions that is applicable in my view. This is clause 12.2, which provides as follows:--- "Not Foreseeable Physical Obstructions or Conditions. If, however, during the execution of the Works the Contractor encounters physical obstructions or physical conditions, other than climatic conditions on the Site, which obstructions or conditions were, in his opinion, not foreseeable by an experienced contractor, the Contractor shall forthwith give notice thereof to the Engineer, with a copy to the Employer. On receipt of such notice, the Engineer shall if in his opinion such obstructions or conditions could not have been reasonably foreseen by an experienced contractor, after due consultation-with the Employer and the Contractor, determine:
(a) any extension of time to which the Contractor is entitled under Clause 44, and
(b) the amount of any cost which may have been incurred by the. Contractor by reason of such obstructions or conditions having been encountered, which shall be added to the Contract Price,
(c) and shall notify the Contractor accordingly, with a copy to the Employer. Such determination shill take account of any instructions which the Engineer may issue to the Contractor in connection therewith, and any proper and reasonable measures acceptable to the Engineer which the Contractor may take in the absence of specific instructions from the Engineer."
' It will be seen that this clause applies during the execution of the Works. Now, clause 41.1 provides that the Contractor shall commence the Works as soon as reasonably possible after receipt of notice from the Engineer, and in the present case, the Consultant (as Engineer) gave notice of commencement to the defendant No,2 (as Contractor) on 3-11-2011. It was thereafter that the defendant No,2 discovered the dumped garbage at the Sub-Sector, including in particular the offal and solid waste thrown there by Clifton Cantonment. Board. The Consultant also specifically noted in its report that the garbage had been dumped after the execution of the main contract and in particular, after the Eidul-Azha activities. Thus, the matter clearly came within the ambit of clause 12.2 since the execution of the main contract had commenced. In my view, it is clear from the report of the Consultant that the garbage that had been dumped and accumulated on a portion of the Sub-Sector was tantamount to a "physical obstruction" and/or "physical condition" that were not foreseeable by an "experienced contractor". The defendant No,2, as noted above, gave notice of the relevant facts to the Consultant, who investigated the matter, consulted with the defendant No,2 and DHA and then submitted the report dated 9-1-2012. In my view, this report clearly amounted to an expression of opinion by the Consultant that the obstructions and conditions on the Sub-Sector on account of the garbage could not have been reasonably foreseen by a competent contractor. Thus, the defendant No,2 was entitled to the costs to be incurred by it by reason of encountering the obstructions and conditions created as a result of the garbage, and such costs were to be added to Contract Price. The costs were of course nothing other than the amount for which the work to remove the garbage was awarded to the defendant No,2. It is pertinent to note that the word "cost" is defined in sub- clause (g) of clause 1.1 as meaning (in relevant part) as "all expenditure properly incurred or to be incurred, whether, on or off Site ...." In my view, the payment of the amount of Rs,246.988 million for removal of garbage was clearly a "cost" within the meaning of clause 12.2, and was payable on account of the unforeseeable obstructions and conditions that were met at the Site (i,e,; the Sub-Sector) when the Works had commenced.
13. I would therefore conclude that the work for the removal of garbage, rather than being a matter that could be a variation in terms of clause 51.1 was a matter that came within the ambit of clause 12.2..I would further conclude that this was so notwithstanding that it was characterized as a variation by DHA, the Consultant and the defendant No,
2. The mere fact that a wrong provision of the General Conditions was referred to is of no great significance since there was another provision available that was applicable, and in terms of the additional financial layout or expenditure to be incurred by the DHA, the effect was precisely the same. I may note in this context that the Consultant had estimated in its report that the overall cost of removing the garbage would be around Rs,249.92 million, and the amount eventually agreed upon was around (and indeed, less than) this amount. I would also note, more generally, that the plaintiff has not impugned the independence, neutrality or competence of the Consultant who from inception was notified as the Engineer for the project. Accordingly, significant weight must be attached (especially at the interlocutory stage) to the factual findings recorded by the Consultant in its report and the opinions expressed and recommendations made therein.
14. However, the matter does not conclude since the second question noted in para 9 above still needs to be addressed. Of course, that question must now be reformulated as follows:--- ' Even if the matter of the removal of garbage came within the ambit of clause 12.2 of the General Conditions, was DHA nonetheless bound to invite fresh and separate tenders for the said work in teams as provided under the 2004 Rules?
15. When the 2002 Ordinance and the 2004 Rules are considered, it appears that a procuring agency can procure one of three types of matters; goods, works or services. Now, "goods" and "works" are specifically defined in the 2002 Ordinance (see section 2, clauses (e) and (p) respectively). "Services" appears to be a residual category, since it is defined (in clause (o)) as meaning "any object of procurement other than goods or works". In my view, the work for the removal of garbage would not come within the definition of either goods or works, and hence would have to be categorized as a "service" for purposes of the 2002 Ordinance and the 2004 Rules.
Learned counsel for DHA had pointed out that in the initial advertisement placed in the press (on 25-10-2010) there had been no specific. Or even general reference to work to be done (i,e,, service to be provided) in respect of removal of garbage. Keeping in mind the situation as it has developed in the present case, I am satisfied that this omission was not deliberate or on account of any mala fide intent. It is obvious that it was not in the contemplation of DHA that the matter of on- site garbage or other refuse or waste in any of the sectors sought to be developed would be so serious and involve such potentially calamitous consequences that services ought separately to be procured to remove, the same. I am satisfied that this would be a reasonable conclusion to arrive at on the facts as available on the record.
16. It appears to me that had the existence of the garbage on a portion of the Sub-Sector been discovered prior to the execution of the main contract or even before the notice of commencement was given in terms thereof, then a plausible case could have been made that DHA ought to have considered separately procuring the services for removal of the same. However, the decision as actually taken was a response to the situation as it developed once the work on the main contract had commenced. In such a situation and especially when the contract itself recognized that such an exceptional situation could emerge and provided for a mechanism for its resolution, the resort to contractual remedies was justified. One must not also lose sight of the fundamental principle which governs the application of the 2004 Rules, which is that the procuring agency should obtain "value for money" and that the procurement A process is economical and efficient, consistently with the requirement that the agency acts in a fair and transparent manner.
The expression "value for money" is defined in the 2004 Rules as follows: 'value for money' means best returns for each rupee spent in terms of quality, timeliness, reliability, after sales service, up grade ability, price, source, and the combination of whole-life cost and quality to meet the procuring agency's requirements." (Rule 2(1)(1))."
' In the facts and circumstances of the case, and especially in view of the Consultant's report, it appears to be me that DHA did receive value for money by resorting to the mechanisms of the main contract itself rather than going through the process of separately procuring services for removal of the garbage. I emphasize that the general rule is, and must remain, that a procuring agency abide by the 2004 Rules, but those rules must be viewed and applied consistently with their spirit and not be allowed to become a straitjacket by focusing only on the letter. The factors which have satisfied me that the course adopted by DHA in the present case was lawful include: (a) the discovery of the relevant facts, for which DHA had no responsibility, after the contract had been executed and put in operation; (b) the existence of a specific contractual mechanism to deal with the emergent situation; and (c) the recommendation of an independent third party. I would therefore conclude that the answer to the second question (see para 14 above) should be in the negative.
17. Before concluding, I would also like to note that the General Conditions of the main contract are, as is expressly stated therein, in the FIDIC form. FIDIC is the acronym for Federation Internationale Des Ingenieurs-Conseils (French for the International. Federation of Consulting Engineers). This association represents globally .The consulting engineering industry, and has developed many model forms of contracts that are used worldwide and have great authority. Thus, FIDIC has developed the conditions of contract for civil engineering construction, which are used here, and are commonly known as the Red Book. It has similarly developed conditions of contract for electrical and mechanical engineering works, commonly known as the Yellow Book, EPC turnkey projects (Silver Book) and others. The point to note is that main contract uses contractual conditions that are recognized and used worldwide and this further reduces the possibility of the main contract having been developed or used in a partial, mala fide or discriminatory manner.
18. In view of the foregoing positions, I am not at all satisfied that the plaintiff has been able to make out a case for interim injunctive relief on either of the two applications. Accordingly, the applications fail and are hereby dismissed.