1. ' SHAHID ANWAR BAJWA, J.--- This constitutional petition was instituted against respondent which was cited as "Karachi Port Trust". Subsequently, an application under Order VI, Rule 17, C.P.C. (C.M.A.
2. No,3179 of 2012) was filed and it was prayed in that application that title may be allowed to be amended from "Karachi Port Trust" to "Trustees of the Port of Karachi". Counter-affidavit to this application has been filed by Mr. Badar Alam learned counsel for respondent. Mr. Khurram Rashid learned counsel for petitioner argued that there has been a technical error in stating and describing the respondent. Mr. Badar Alam vehemently opposed the application and submitted that this is not technical error which can be corrected. The petitioner may however withdraw this petition and then file petition with correct description.
3. ' I have considered submissions of learned counsel and have also gone through the record. It is true that petition should have been instituted in the name of "Trustees of the Port of Karachi" because this is provided in the Karachi Port Trust Act, 1886. Through amendment application is prayed that title be amended accordingly. Mr. Badar Alam stated that though it could have been done through application under Order I, Rule 10, C.P.C. But it could not be done through application under Order VI, Rule 17, C.P.C, Objection of Mr. Badar Alam appears to be hyper-technical in view of the fact that Vakalatnama has been executed by the concerned employee of Karachi Port Trust and counter affidavit has also been filed by the same concerned officer of Karachi Port Trust.
4. Therefore notwithstanding incorrect description, respondent iS present to defend and in view of such position the C.M.A. No,3i79 of 2012 is allowed and in the title of this petition name is ordered to be amended from "Karachi Port Trust" to "Trustees of the Port of Karachi Trust".
5. ' With consent of learned counsel for the parties this constitution petition was finally heard at Katcha Peshi stage and is being decided accordingly.
6. ' On August 22, 2010 bids were invited for Procurement of two Pilot Boats. In the advertisement it was stated as under:--- "KPT reserves the right to reject any or all bids and annul the process without assigning any reason's) thereof and is not liable in any manner to incur any expense/ liability till conclusion of this bidding process."
7. ' The petitioner was interested, he applied and he was provided bidding documents. Pre-bid meeting was held on 19-10-2010 and on 20-10-2010, petitioner submitted its bid.. On 11-2-2011 respondent communicated to the petitioner that it had resolved to direct a three members team to visit facilities of the petitioner to verify its capability, safety, efficiency of operation for glass reinforced plastic (GRP) pilot boat required to be produced by it. It was further stated that result of visit would form basis for further consideration/evaluation of bids. Consequently, visit took place between 3 to 7 April, 2011. Since bidding process was to be based on single stage, two envelopes procedure, vide letter dated 4-6-2011 petitioner was informed by General Manager Planning and Development Division, Karachi Port Trust, that technical offer reveals technical qualification of petitioner's bid/proposal and therefore unopened financial bid proposal would be opened on June 7, 2011. It is contended by learned counsel for petitioner that financial bid was consequently opened and petitioner came out as the lowest bidder and therefore acquired valid and valuable right of being .Awarded the contract. However, the respondent did not issue order. Consequently, the petitioner on 27-9-2011 wrote to the respondent in this regard and in response it received letter dated 27-9-2011. Letter enclosed at Page 385 and letter enclosed at Page 387 state as under:-- ' Letter at Page 385.
8. "1. Kindly recall your bid for above work and extended validity. It is to inform you that after long deliberation the competent authority has resolved to re-invite the bids after the material of the boat/ hull has been finalized.
9. 2 You are therefore accordingly informed.
10. 3 Kindly acknowledge receipt of this message in writing and collect the bid security, please."
11. Letter at Page 387: "1, Kindly recall your bid for above work and extended validity. It is to inform you that after long deliberation the competent authority has resolved to re-invite the bid.
2. You are therefore accordingly informed.
3. Kindly acknowledge receipt of this message in writing and . Collect the bid security, please.
12. ' Learned counsel for petitioner made the following submissions:---
(i) That after technical hid was accepted and financial bid had been opened, it was not available to the respondent to change material required from GRP to Steel.
(ii) Learned counsel referred to Rules 33, 36 and 38 of the Public Procurement Rules, 2004 and submitted that Rule 33 is limited to the time till financial bid is opened and in terms of Rule 36 sub- rule (9) once financial bid is opened, the lowest bidder has vested right that its bid be accepted.
(iii) He submitted that it is settled law that all rules must be given equal weight and mischief that Public Procurement Rules, 2004 were aimed at avoiding was arbitrary decisions in matters of public procurement. He relied upon Mst. Shabnam v. Federation of Pakistan through General Manager/Operations Pakistan Railways Headquarters Office, Lahore and 3 others (2009 PLC [C..S.J 327), Kamaluddin Qureshi v. Ali International Co. (PLD 2009 SC 367). Muhammad Kaleem Asif v. Additional District Judge (PLD 2009 Lahore 484) and Muhammad Usman and another v.
13. Additional District Judge, Lahore (PLD 2010 Lahore 281).
14. ' Mr. Badar Alam learned counsel for respondent referred to last 3 lines from advertisement reproduced above and the from the Form of Tender enclosed as R/1 with the counter affidavit (reproduced below) and submitted that it was absolute discretion of respondent to cancel the bid and such discretion is also given in terms of Rule 33 of the Public Procurement Rules. He referred to Page 385 of the petition and submitted that letter enclosed thereat is not signed by anyone and is a fictitious and fabricated one. He submitted that PEPRA Rules are not applicable in view of contract between the parties. He relied upon City Schools (Pvt.). Lahore Cantt. v. Privatization Commission, Government of Pakistan and others (2002 SCMR 1150), Afzal Motors Company (Pvt.)
15. Limited v. Province of Sindh and others (2009 .SCMR 659), Petrosin Corporation (Pvt.) Ltd.
16. Singapore and 2 others v. Oil and Gas Development Company Ltd. Through Managing Director, Islamabad (2010 SCMR 306) and Messrs Bagh Construction Company v. Federation of Pakistan and others .(2001 YLR 2791). Learned counsel has also read from Para 13 of the counter-affidavit and submitted that petitioner was not the lowest bidder.
17. ' We have considered submissions made by the learned counsel and have gone also through the record as well as case-law cited at the bar.
18. ' In Para 13 of the counter-affidavit it has been stated as under:--- "That the contents of paras 14 and 15 of memo. Of petition are denied as being misconceived. It is respectfully submitted that pursuant to Tender Notice published in the press and floated on website total 23 firms had purchased the Tender Documents, however bids were received only from nine (9) firms. On examination of said nine (9) bids by the Technical Committee of the respondent on by four (4) firms scored qualifying marks and the same were declared as pre- qualified. Out of four (4) pre-qualified firms one firm namely Messrs DUZGIT GEMI INSA SANAYI A.S. - -- TURKEY had been disqualified after its certain clarifications sought by the respondent and it had also not extended the validity period of its bid. During process of evaluation of bids another firm namely Messrs. LUNGTCH SHIP- BUILDING CO. LTD - TAIWAN preferred to withdraw its bid by not extending the validity of its bid. Therefore there remained only two firms namely Messrs SAFEHAVEN MARINE LTD - IRELAND (petitioner) that offered Hull (body) and Superstructure of Boats to be manufactured by Glass Reinforced Plastic and another firm namely Messrs. Karachi Shipyard and Engineering Works Ltd. Pakistan, that offered steel Hull and Superstructure of Boats.
19. Therefore petitioner's contentions that allegedly its financial offer was the lowest is misconceived as there was no other financial offer by any other company in respect of Hull and Superstructure to be manufactured by Glass Reinforced Plastic. Petitioner's other contention that allegedly its bid stood qualified in terms of Rule 36(b) of Public. Procurements Rules, 2004 as being allegedly the lowest is also Misconceived as, for the purpose of making comparison there-was no other bid for the same material offered by the petitioner, which was also subject to approval by the Board of Trustees of KPT.
20. Reading of the above para indicates that at the end of it there were only two bids left; one by petitioner and other by Karachi Shipyard and Engineering Works. Petitioner's bid was for GRP hull and Karachi Shipyard's bit was for Steel hull. Therefore, prima facie, two were like apples and oranges and could not be compared with each other. It may be noted that in the tender documents type of material for hull, GRP or Steel was not specified. Therefore it could either. Even if the two bids remaining in the field are treated as comparable and therefore, should have been compared with each other, in presence of only two valid bids, there can be a '"lower" bid and a "higher" bid but there cannot be "lowest bid" which adjective being in superlative degree and not in comparative degree requires at least three to be compared with each other. In this view of the matter there is no room available to petitioner to contend that his bid was the lowest because in the circumstances there could not be any lowest bid because ultimately there were only two bidders left in the field.
21. ' Contention of Mr. Badar Alam was that since in the advertisement as well as in Para 17 of tender document (R/1) it was stated that KPT was not bound to accept lowest bid the petition is not maintainable. Para 17 of tender document is reproduced as under`:.--- "17. We fully understand and agree that you are not bound to accept the lowest or any Tender that you may receive and that the tender documents constitute complete transparency, and pursuant to above clauses (1) and (3), we understand and agree that KPT follows a complete transparent and fair procedure and criteria for evaluation of bids and we shall have no claim of an nature consequent to the KPT's decision for Award of work or rejection of bid(s). "
22. ' It was contended by Mr. Badar Alam that even if bid of the petitioner is rejected it cannot be said to be a violation of the tender documents and condition laid down in the advertisement. To us it does not appear to be a valid contention because notwithstanding such reservations, public functionary are trustees of public power are required to act fairly, justly and for valid reasons and are not required to act whimsically, capriciously or arbitrarily. However, we do not think it necessary to go into this question as also the question that under Rule 33 of Public Procurement Rules on one hand and Rules 36 and 38 on the other hand, whether the lowest bidders must be accepted or can be declined in certain circumstance. We leave this question for some other case.
23. ' Contention of Mr. Khurram Rashid was that in letter enclosed with petition at Page 385 it has been stated that bids were to be invited again after material of hull has been finalized and counter contention of Mr. Badar Alam was that letter at Page 385 is a fictitious document whereas actual letter is at Page 387. This being a disputed question of fact cannot be gone into in exercise of constitutional jurisdiction.
24. Result of the above discussion is that this constitution petition is dismissed in limine. Applications at Sr. Nos.2 and 4 are disposed of.