' AYESHA A. MALIK, J.---This is a single judgment in Writ Petition Nos.14645, 14663 & 14360 of 2012. All three writ petitions impugn the decision of the respondents Nos.1 & 2 wherein a contract for the procurement of 112 Ambulances has been awarded to respondent No,3.
2. In the instant petition being Writ Petition. No,14645 of 2012 the petitioner participated in the bidding process and is aggrieved by the decision of the respondents No,1 & 2, for being contrary to the Punjab Procurement Rules, 2009 ("PPRA Rules 2009"). The case of the petitioner is that the vehicle offered by the respondent No,3 is a Chinese vehicle named Panorama, which is neither a Panel .A vehicle nor a standardized vehicle, as required in the bidding document itself. Therefore, the respondents Nos.1 & 2 could not have awarded the tender in favour of respondent No,3. The petitioner made an offer as per the specifications provided and its technical bid was approved by the technical committee. Yet, in sheer violation of the rules, the contract was awarded to the respondent No,3.
3. Writ Petition No,14663 of 2012 has been filed by the petitioner in public interest It is the case of the petitioner that the manner in which the tender has been awarded to respondent No,6 (Respondent No,3 in the instant petition) is contrary to the PPRA Rules, 2009. It is also the case of the petitioner that respondent No,6 has offered a substandard vehicle, which is not suitable for the job of emergency facilities and the people at large will suffer.
4. In Writ Petition No,14360 of 2012, the case of the petitioner is that he wanted to participate in the tender for the 112 Ambulances. However, he was informed that only standardized vans or Panel-A vehicles can be offered and that no Chinese brand will be considered. It was only later that petitioner came to know that the contract has been awarded to respondent No,11 for the supply of a Chinese brand which was neither Panel A nor standardized. It is the grievance of the petitioner that he was knocked out of the entire proceedings on account of the fact that he was willing to offer a Chinese vehicle. If Chinese vehicles were to be considered then he should have been allowed participation in the bidding proceedings.
5. The common issue in all three writ petitions is whether the tender awarded in favour of M/S Shahnawaz Motors (Pvt) Ltd respondent No,3 in W.P. No,14645-12, respondent No,6 in Writ Petition No,14663-12 and respondent No,11 in Writ Petition No,14360-12. (hereinafter referred as respondent No,3) was in accordance with the PPRA Rules, 2009. Before adhering to the merits of this case, the objections of the learned Law Officer should be considered. The Law Officer argued that disputed questions of fact arise in all three writ petitions, which cannot be decided in Constitutional Jurisdiction. He has placed reliance on PLD 2001 SC 415. He also argued that the petitioners have a remedy available to them under Rule 48 of the PPRA Rules, 2009, such that if they are aggrieved by any act of the procuring agency after the submission of the bid, a written complaint can be filed upon which a committee will investigate and decide upon the complaint. He further added that against this decision of the committee an appeal can be filed before a competent court. He has placed reliance on a case titled "Executive District Officer (Revenue) District Khushab at Jauharabad and others v. Ijaz Hussain and another" 2011 SCM R 1864. Finally, learned Law Officer argued that this is a matter of policy and policy cannot be challenged through Constitutional Jurisdiction. Reliance was placed on a case titled "Ijaz Ahmad v. The State" 2009 SCMR 98. He stated that it is for the Punjab Government to decide what its requirements are for the purposes of these Ambulances and if the Government wants to procure a Chinese Brand, there is no basis upon which this decision can be challenged.
6. I have given consideration to all the preliminary objections raised by the learned Law Officer on the maintainability of these three writ petitions. I am of the opinion -that all three writ petitions are maintainable as the only issue to be decided in the writ petitions is A whether the contract awarded to the respondent No,3 was in accordance with the PPRA Rules 2009. Since the only question before the Court is whether the Respondents have acted in accordance with law, the same can be decided in Constitutional Jurisdiction. In this regard the law Officer has placed reliance on an unreported judgment dated 13-2-2012 passed by this court in Writ Petition No,23770 of 2009, which dealt with the issue of blacklisting and fresh bidding after awarding a contract. In the stated case, one of the issues was whether or not the contract executed in favour of respondent No,4 was backdated. The learned Judge held that this is a disputed question of fact, which cannot be decided in Constitutional Jurisdiction. In the instant petitions there is no disputed question of fact involved, hence reliance upon the judgment of 13-2-2012 does not advance the argument of the learned Law Officer. Therefore these writ petitions are maintainable in their present form.
7. The brief facts of this case are that a tender was advertised in "The News" and daily "Nawa-e- Waqt" on 25-4-2012. It was also placed on the PPRA web site as per the PPRA Rules 2009. The tender notice dated 23-4-2012 provides for the procurement of 112 Emergency Rescue Cardiac Ambulances. As per the specifications provided the Ambulance was to be Panel-A vehicle or a standardized van. Standardization is done by the Services and General Administration Department, (Procurement Wing). A list of standardized vans has been provided by the respondents. Nos.1 & 2 dated 17 December 2008. The, bidding specifications provide that Panel-A includes European, American and Japanese origin firms. The tender was a two stage, two envelope bidding procedure as per Rule 36-d of the PPRA Rules 2009. The bids were opened on 10-4-2012. The technical information received from four firms was evaluated by the Technical Scrutiny Committee.
Thereafter, in a meeting of the Standing Purchase Committee the decision to award the contract to respondent. No,3 was made. Hence these petitions.
8.Learned counsel for the respondents along with the learned Law Officer have argued that the entire bidding process was in accordance with the PPRA Rules 2009 and the decision of the Standing Purchase Committee is also after giving due consideration to all the information submitted before it. The bidder with the lowest bid and most acceptable submitted before it. The bidder with the lowest bid and most acceptable no grievance whatsoever, as their bid did not meet the requirements of the respondents Nos.1 and 2.
9.Heard learned counsel for the parties at length and reviewed the record available on the file.
10. Rule 36 of the PPRA Rules 2009 provides the procedure of open competitive bidding. Rule 36(d) provides for the two stage two envelope bidding procedure. As per the Rules the bidder will provide two separate envelopes; one will contain a financial proposal and the other a technical proposal.
In the first stage, the technical proposal shall be discussed with the bidder in terms of the procuring agency's technical requirements. Those bidders, who show willingness to meet the requirements of the procuring agency, shall. Be allowed to revise their technical proposal after the aforementioned discussion. Bidders not willing to conform to the technical proposal for the revised requirement can withdraw their respective bids. In the second stage, the bidders, who are willing to conform to the revised technical specifications and whose bids have not already been rejected shall submit a revised technical proposal and a supplementary revised financial proposal in accordance with the technical requirements. The revised technical proposal along with the original financial proposal along with supplementary financial proposal should be opened at the date, time and place announced by the procuring agency. Finally, the procuring agency evaluates the entire proposal in accordance with the evaluation criteria and the bid found to be the lowest evaluated bid is accepted.
11. In the instant case, as per the documents provided by the petitioners and the respondents 1 & 2, the tender requirements were specified in the bidding documents.The bidding documents provided for the general conditions, special conditions and technical specifications for the emergency rescue cardiac ambulance required. The technical bids of four firms were evaluated by the Technical Scrutiny Committee in its meeting held on 11, 14 and 15 May, 2012. The Technical Scrutiny Committee rejected the bid of respondent No,3 because they offered Chinese vehicles, which did not conform to the technical, specification, being Panel-A or standardized vehicles. The bid offered by the petitioner in Writ Petition No,14645 of 2012 was accepted keeping in view past experience, durability reliability and easy availability of spare parts. The recommendation and evaluation report of the Technical Scrutiny Committee was considered by the Standing. Purchase Committee, in its meeting held on 17th May and then again on 18th May, 2012. In the first meeting the Deputy Secretary, Finance Department objected to the report of the Technical Scrutiny Committee as he was of the view that technical report was not based on technical aspects but was based on operational requirements. It was also decided at that meeting that open competition should be held, which meant that all brands including Chinese Ambulances should have been considered. At this point, in terms of the arguments ,advanced by the respondents, revised bids were offered by three of the bidders to meet the revised technical requirements of the Standing Purchase Committee. However the petitioner in the instant writ petition did not revise its bid. On 18th May, the Standing Purchase Committee opened the financial bids and awarded the contract to the respondent No,3 who offered the lowest bid.
12. The procedure adopted by the Standing Purchase Committee and the manner in which they awarded the contract to the respondent No,3 is contrary to the PPRA Rules 2009. The Rules provide that the "lowest evaluated bid" shall be accepted. Lowest evaluated bid is defined in the definition clause as:-- '
"(i) a bid most closely conforming to evaluation criteria and other conditions specified in bidding document; and
(ii) having lowest evaluated cost;"
This means that the lowest evaluated bid must conform to the evaluation criteria and other conditions specified in the bidding document and it should be the lowest in terms of costs. Rule 30 provides for the 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.
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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 29 provides for the evaluation criteria being:- "Procuring agencies shall formulate an, appropriate evaluation criterion listing all the relevant information against which a bid is to be evaluated. Such evaluation criteria shall form an integral part of the bidding documents. Failure to provide for an unambiguous evaluation criteria in the bidding documents shall amount to mis-procurement."
' In terms of the aforementioned Rules, the purpose of the bidding documents is to set out the requirement and the criteria against which the bids will be evaluated. In any bidding process it is vital that the terms and conditions and the specifications required are known to the bidder so that he can present his bid in accordance with the specifications and conditions laid out in the bidding documents. Accordingly all bids are reviewed against the same evaluation criteria in deciding which is the lowest bid.
13. Admittedly the bid of the respondent No,3 was not in accordance with the specifications provided in the bidding document. Essentially the respondent No,3 offered a vehicle which was not specified in the bidding documents. This is precisely why the Technical Scrutiny Committee rejected their bid, as their offer did not meet the technical specifications of the bidding documents.
Once the Technical Scrutiny Committee rejected the bid of the respondent No,3, the Standing Purchase Committee could not set out new specifications and then award the contract to the respondent No,3, In doing so the Standing Purchase Committee did not per se revise the technical specifications, they changed the basic specifications. The required specifications were ignored and replaced by technical specifications which were neither present nor contemplated for in the bidding documents. The Standing Purchase Committee cannot set aside the findings of the Technical Scrutiny Committee nor can it replace the technical specifications. If after due consideration of the bids, the Purchase Committee was of the opinion that the financial proposal for Panel-A or standardized vehicles was on the higher side, they could have recommended re- bidding in terms of Rule 34. This would be in line with the spirit of the PPRA Rules 2009. However to simply set aside the report' of the Technical Scrutiny Committee and then award the contract to a person whose bid was rejected by the Technical Scrutiny Committee is a gross violation of Rule 36(d) (viii), which provides that revised bids will be submitted by bidders whose bids have not been rejected. The PPRA Rules 2009 ensure transparency and open competitive bidding. They provide the procedural safeguard to achieve value for money and prevent abuse in the procurement process. Awarding the contract to a rejected bidder negates the spirit of open competitive bidding.
14. In terms of the procedure followed, the Standing Purchase Committee does not have the mandate w over rule the findings of the Technical Scrutiny Committee. It is required to consider the recommendations and findings of the Technical Scrutiny Committee and take a decision accordingly. By ignoring the decision of the Technical Scrutiny Committee the Standing Purchase Committee violated the PPRA Rules, 2009 and the objective of the said Rules. In terms of Rule 36(d) any revision in the technical specifications will be decided by the Technical Scrutiny Committee in consultation with the bidders. Such revisions should be in line with the basic specifications, conditions and evaluation criteria provided in the bidding documents. A revision in the technical specifications does not mean changing the entire basis of the specifications. In this case the specification was for Panel A or standardized vehicles. This specification set out the bench mark for the quality required. Any revision of the technical specifications should have been within the ambit of Panel A or standardized vehicles. As per the stated Rule once the revised technical bids are in place, the financial bids are to be considered. If the Standing Purchase Committee wanted to include Chinese firms then it should have called for re-bidding so that all persons, who wanted to participate in the bidding process and who could meet the new specification could have presented their proposal. This would have included persons like the Petitioner in Writ Petition o.14360 of 2012. This is also keeping with the spirit and purpose of the PPRA Rules 2009 which provides in Rule 2(c) that competitive bidding means "a procedure leading to the award of a contract whereby all the interested persons, firms, companies or organizations may bid for the contract and includes' both national competitive bidding 'and international competitive bidding"
15. At this point it is pertinent to mention that the learned counsel for the respondent No,3 while defending the award of the contract in his favour stressed upon the reputation and the quality of the brand offered by the respondent No,3. He also argued that the respondent No,3 has been supplying Ambulances to the respondents Nos.1 & 2 previously. These arguments do not advance the case of the respondent No,3 as it is immaterial what the quality of the brand being offered by the Respondent No,3 is. Or that they have been providing such vehicles in the past. The only material issue is that the respondent No,3 offered a vehicle which was not specified or required under the bidding documents. The whole purpose of providing the bidding documents and the specifications, conditions and evaluation criteria is so that the public at large is informed of the intended procurement and interested parties can formulate their proposals in accordance with what has been specifically required.
16. An the light of the aforementioned the petitions are allowed. The decision taken by the Standing Purchase Committee in favour of the respondent No,3 is illegal and contrary to the PPRA Rules 2009.
The procedure adopted by the Standing Purchase Committee is also illegal and contrary to. The PPRA Rules 2009. The respondents Nos.1 & 2 may reconsider the specifications desired for the procurement of the emergency vehicles and thereby invite fresh tenders strictly in accordance with the PPRA Rules, 2009. Finally, all funds that have been processed in the name .Of the respondent No,3 may be set aside for the fresh bidding process and its *successor. In this regard the respondents Nos. 1 and 2 are directed to ensure transparency and competitive bidding as contemplated under the PPRA Rules.