' AZHAR SALEEM BABAR, J.---Facts envisaged by the amended writ petition are that Director General Azad Jammu and Kashmir Private Power Cell Govt. Of Azad Jammu and Kashmir invited proposals from the interested parties for different Hydro Electric Projects to be constructed in Azad Jammu and Kashmir. The petitioner being a registered company applied for one of the projects named "LUAT 49 MW Project". The petitioner submitted its credentials for pre-qualification and was first ranked amongst the three participating candidates. It is the claim of the petitioner that he was recommended for award of 49 MW LUAT Hydropower Project but under political influence and with mala fide intention "post bid conditions' were framed" to throw the petitioner out of the process and to award the project to Messrs Pak Canadian Hydropower Company, the non-petitioner. It has also been contended that in order to facilitate non-petitioner No,7, a condition of ranking of banks was incorporated and a committee was secretly framed for the purpose. As a consequence of the aforementioned efforts a Letter of Support (LoS) has been issued in favour of Messrs Pak Canadian Hydropower Company on 30-11-2012 against the law and rules and without approval of Hydro Electric Board (HEB). The petitioner has prayed to the court to set aside the Letter of Support (LoS) dated 30-11-2012 being against the law and rules and has further prayed for a direction to allot the project LUAT 49 MW Hydropower to the petitioner.
2. Messrs Pak Canadian Hydropower Company Private Ltd. And the official non-petitioners have filed parawise comments/written statements. A perusal of the documents furnished by the non- petitioners transpires that all the non-petitioners are at the same page in connection with the allotment of the disputed project. Arguments placed through parawise comments/written statement may be summarised as follows:--
(a) that the petitioner has no locus standi to file the instant writ petition;
(b) that the petitioner has placed his reliance on the evaluation report attached with the writ petition which is a fake document bearing signature of none of the authorities and that evaluation report prepared by the committee dated 11-9-2011 has been attached as annexure "RB" The official non-petitioners have contended that the petitioner failed to submit required documents with his pre-qualification documents and he was instructed to provide the missing documents. It has further been contended that a draft report was prepared on the basis of information provided by the petitioner but some information provided by the petitioner was later on found out to be without substantiations. The non-petitioners are of the view that draft report is not a final document and the petitioner has been disqualified by the Project Management Unit (PMU). The PMU further noticed that most of the documents furnished by the petitioner were not correct, so the petitioner did not qualify for award of the project. It has also been furnished by the non-petitioners that under the rules of procedure, the evaluation/recommendations of the PMU are to be submitted to Steering Committee of Government of Azad Jammu and Kashmir. The final evaluation report was considered by the committee who allowed a second chance to the petitioner to provide the required certified documents, which the petitioner could not provide. The non-petitioners have further contended that a meeting was convened after a period of one month, which commenstruated with the period provided to the petitioner for furnishing authenticated letters/documents in support of his pre-qualification documents. It has been stressed that contract of the project has rightly been awarded to the private non-petitioner after fulfilling the requirements of law and procedure.
3. In his replication the petitioner has provided eligibility criteria and has stressed that the petitioner fulfilled all the requirements and he was pre-qualified on the basis of such documentation.
Evaluation report has been referred in the replication, whereby the petitioner was also held entitled to pre-qualification, however, it, has been contended that weightage/ranking cannot be changed.
It is the contention of the petitioner that had he not fulfilled the required eligibility, he would not have been pre-qualified, Learned counsel for the petitioner has placed reliance on Makhdoom Sued Faisal Saleh Hauat's case, decided by the Supreme Court of Pakistan.
4. Learned counsel for the non-petitioners has cited the following case-law:--
(i) 2005 SCR 57 ' While referring to High Court Procedure Rules, 1984, it has been held that respondents invoked the jurisdiction of the High Court without appending with their writ petition certified copies of the orders as required under rules. The formalities which were to be attended to under rules must be complied with.
(ii) 2005 SCR 89 ' While elaborating the rule of acquiescence, it has been held that petitioners have participated and duly assisted the Commission of inquiry and they have all along been with the Commission during the inquiry. They challenged the notification of appointment of Commission of Inquiry after the report was submitted by the Commission and when they found it against them-- Held: A person who duly participated in an inquiry and acquiesced to the jurisdiction, is stopped from calling in question the proceedings and the result thereof.
(iii) 1999 PLC (C.S.) 1203 ' In order to file a writ petition before the High Court, a person has to come with clean hands.
5. We have heard learned counsel for the parties and gone through the record of the case. Subject matter of dispute between the parties in the instant case is the allotment of 49 MW LUAT Hydropower Station to be installed in Neelum Valley Azad Jammu and Kashmir. Keeping in view the grievance of the petitioner, we have to examine the following points in order to resolve the controversy:
(a) Whether the petitioner has better credentials and is first ranked as compared to the private non-petitioner?
(b) Whether the private non-petitioner has been provided a chance to adduce additional information at the back of the petitioner?
(c) Whether the rules of procedure have been followed in awarding the project to the non- petitioner?
6. All the points agitated above may be answered in a single paragraph by adverting to the documents placed on record. It cannot be claimed that advertisement inviting request for proposals is a final document and no further condition can be attached, which has not been mentioned in the advertisement, The advertisement itself states that "the proposal should provide full details including but not limited to the following" The clipping of the publication further requires that information is to be furnished regarding technical as well as commercial aspects. The bidders were further required to provide details regarding extent of offered financing i.e, whether 100% or part thereof. Finance may be in form of supplier's credit, EC.A, lease or multilateral/commercial Bank finance or mix thereof. It further requires that documents related to financial standing and credit worthiness of the bidders e.g. Bank's references were also to be duly supplied. It was also clarified in the advertisement that proposal shall be evaluated and ranked, keeping in view the bidders standing, technical capability, resourcefulness, condition of finance and award will be made, keeping in view the maximum benefit to the Azad Jammu and Kashmir Hydro Electric Board.
7. The advertisement, thus itself required documentation, which was to be evaluated later on. Pre- qualification document provided by the petitioner himself indicates that the applicant has to comply with any additional requirement of Azad Jammu and Kashmir P.P.C. Within a week period.
Section 7 of pre-qualification document provides that:- "Notification of Pre-qualification ' AJK-PPC shall notify after pre-qualification process to the applicants (at the address specified in the SOQ) whether they have pre-qualified or not. The AJK-PPC's decision on pre-qualification of applicants shall be final and unquestionable and AJK-PPC shall not be required to assign any reason for its decision.
'During the examination and evaluation of SOQ, AJKPPC/ PMU mau at its discretion request the applicant for additional information clarification and verifications with respect to any item contained in the SOC). AJKPPC's such request and the applicants' responses thereto shall be in writing. The verification written response should be within a week after the request has been made.
' To assist in the examination and evaluation of SOQ, AJK-PPC/ PMU may also require the applicant to attend clarification meetings. The applicant shall be responsible for all costs associated with the submission of information additionally requested and with its, preparation for and attendance of clarification meetings.
' Any effort by an applicant to influence the GOATK, AJK-PP, "the Board" or their consultant/ committee in the process of evaluation and selection of pre-qualified applicant, may result in the rejection of such applicant's SOQ."
8. In the light of advertisement inviting bids and the conditions mentioned in the pre-qualification document, it stands established that the official non-petitioners had every right to ask for additional information and to verify such information through its sources. Initially the petitioner was first ranked, in view of the information laid down, whereas Messrs LUAT Power Private Ltd. Was ranked as second and Messrs Pak Canadian Hydropower Private Ltd. Was 3rd ranked, keeping in view the ranking criteria. As a result, the petitioner company was recommended for award of disputed project. Azad Jammu and Kashmir Hydro Electric Board (HEB) later on held a meeting, wherein 5 items were put on agenda, regarding approval of issue of Letter of Interest (LoI)/ Letter of Support (LoS) for development of 49 MW LUAT Hydropower Project. It was decided in the 6th meeting of Steering Committee dated 18-9-2012 that:-- "A committee with a mandate to investigate the facts of the matter and to verify the various documents provided by both the sponsors is constituted. The committee will submit its detailed report to the Steering Committee within a week. The composition of the committee is as under:- ' Secretary Electricity/ HEB Member Mr. Khalid Faizi (Financial Expert) Member"
9. 7th meeting of Steering Committee was held on 23-10-2012 under the Chairmanship of Chief Secretary of Azad Jammu and Kashmir and was attended by Additional Chief Secretary of Azad Jammu and Kashmir, Secretary Finance, Secretary Electricity/HEB, Managing Director Azad Jammu and Kashmir HEB, Director General HEB and Mr. Khalid Faizi, financial expert as members. Before adverting to the decision arrived at in the 7th meeting of the Steering Committee, it looks appropriate to mention here that the petitioner was directed to provide additional information, vide letter dated 25-5-2012, issued by Government of Azad Jammu and Kashmir Private Power Cell HEB, which is as under:-- "GOVT. OF AZAD JAMMU AND KASHMIR PRIVATE POWER CELL, HEB, AJ&K ' Ref: PPC/406/2012 dated 25-5-2012 Sardar Sajid Javed Chief Executive Officer Messrs Chinar Power (Pvt.) Limited House No, 263, Str.
No,90 Sector 1-8/4, Islamabad.
' Subject: 49.0MW Luat Hydropower Project-Incomplete Information ' Refer to the Request for Proposal (RFP) submitted by your company on 2-5-2012 for development of subject project.
(2) During evaluation of RFP it has come up that the following information is found incomplete/ missing.
(a) Power of Attorney from all the members authorizing the Main Sponsor is not furnished in the SOQ's form.
(b) Messrs Zhejiang Fuchunjian being a member of consortium must submit Power of Attorney authorizing Main Sponsor (SOQ Form-2) and equity commitment for holding collectively 51% equity of the project. (SOQ Form-3)
(c) Power of Attorney authorizing a representative and Consent Letter for participation in project is only stamped but not duly signed by Messrs Zhjiang Fuchunjiang.
(d) Proposed share of members of the consortium in total equity of the project in SOQ Form-4 is not clear.
(e) The undertaking to provide the services of review of feasibility study/ tendering contracting, detailed design and construction supervision from the specialist firm i.e, Messrs Mirza Associates Engineering Services (Put.) Limited is not furnished.
(t) Certificates of completion for projects mentioned in power project experience (SOg Form-11) and Power Project Management and Operation (SOQ Form-12) are not annexed. Moreover, the complete addresses of the employer are also not furnished.
(g) The Auditor Report for Messrs Assmandal Trading Company is not provided on the letterhead of the Auditor and the complete (telephone, fax, e-mail and mailing address) of the Auditor is also not furnished.
(3) You are therefore, directed to submit the above mentioned information/ documents within seven days to this office so that evaluation of pre-qualification document may be carried out.
' With regards, Deputy Director Project/ Secretary PMU AJK Private Power Cell"
10. It was in this background that information futnished by the applicants was discussed in the meeting of Steering Committee and following decision was arrived at:-- "The committee approved the recommendations of subcommittee constituted to evaluate the P.Q.Ds submitted by the applicants and decided to award 49 MW Luat Hydropower Project to Messrs Pak Canadian Hydropower Company (Pvt.) Ltd. Subject to approval of AJK HEB (the competent authority) and subject to the verification/ confirmation of Bank Reference letter submitted by Messrs Pak Canadian Hydropower Company (Pvt.) Ltd, issued by BMO financial ground bank of Montreal 2515 East Hastings Street Vancouver, B.0 V5K 1Z2."
It may also be mentioned here that Bank reference letters are supposed to be issued by first class Financial/ Banking institution with the credit rating of;
(1) A-or higher by S&P; or
(2) A3or higher by Moody's.
11. It was further discussed in the meeting that Bank reference letter submitted by Messrs Pak Canadian Hydropower Company is a well known Bank of Canada and falls under the required criteria rating whereas Bank reference letters submitted by Messrs Chinar Power Pvt. Ltd. Are issued by Al-Mashreq Bank. Abu Dhabi, Estrategia Investmentos S.A and the Bank of China do not fulfil the required rating while the Bank reference letter issued by Bank of China in favour of Zhejiang Fuchunjiang, Hydropower Equipment Co. Limited (which is not a main sponsor but a technical part of Messrs Chinar Power (Pvt.) Limited) hence cannot be considered.
12. Contention of the petitioner that decisions were made at his back in order to facilitate the private non-petitioner is not found true as per record of the case. Evaluation report prepared by a committee shows that Steering Committee in its meeting held on 8-8-2012 decided as follows:- "For 49 MW Luat Hydropower Project, opportunity shall be provided to all three applicants to file their shortcoming /deficiencies of documents within one month. The evaluation shall reconsider the proposal/offers after submission of deficient documents."
' The committee has prepared technical data of the applicant company. For proper appreciation it is reproduced as under:-- "Further on the basis of financial and technical data the total strength score of the applicants are as under: S#Applicant NameTechnical Strength Score (4)Financial Strength ScoreTotal Score 100Re-marks Net Worth (24)Liquidity (12)Borrowing Power (12)Asset Base (12)Total Financial Strength (60)
1Messrs Pak Canadian Hydrpower Private Limited Islamabad40,000 0.889 2.107 0.193 0.6243.812 43.8122nd Ranked 2Messrs Chinar Hydro-power or Pvt. Limited26,000 24.000 12.000 12.000 12.00060.000 86.0002nd Ranked
(c) If the fresh financial credential of Messrs Pak Canadian Hydropower (Pvt.) Limited is considered the total strength score of the applicants becomes as under:- S#Applicant NameTech-nical Strength Score (40)Financial Strength ScoreTotal Score 100Re-marks Net Worth (24)Liquidity (12)Borrowing Power (12)Asset Base (12)Total Financial Strength (60)
1Messrs Pak Canadian Hydro- power Private Limited Islamabad40,000 24,000 10,176 12,000 12,00058,176 98,176First Ranked 2Messr Chinar Hydropower Pvt.
Limited.26,000 16,797 12,000 2,437 8,43539,689 65,6592nd Ranked 'As per fresh financial credential, Messrs Pak Canadian Hydropower (Pvt.) Limited first ranked applicant is recommended for issuance of LOI/LOS after approval of Steering Committee and fulfilling other formalities (if any)."
13. The petitioner in his replication has admitted that "it is worth while to mention here that .According to RFP, the additional information can be demanded but in evaluation report, the value of these information is mentioned as under:"
14. It transpires from the above discussion that Private Power Cell Government of Azad Jammu and Kashmir was competent to ask for additional information from the bidders for construction of 49MW LUAT Hydropower Project. A precondition was incorporated in the pre-qualification document that Private Power Cell or the HEB has every right to ask for additional information from the bidders/applicants and to provide credentials to substantiate the information already furnished. In a meeting held by Steering Committee, it was decided to provide chance to all three participants/bidders to provide letter of reference from reputed Banks. The information furnished by the petitioner did not come up to the mark and did not fulfil the required criteria, whereas reference letters supporting credentials of the private non-petitioner were evaluated as reliable. It is also worth mentioning that reference letter issued by Bank of China did not relate to the petitioner company, rather it related to a Chinese company who is not the main sponsor of the petitioner company. The petitioner company has not provided an explanation in this regard. The petitioner as well as the non-petitioner company was provided equal chance to compete for award of 49MW Hydropower Project and the petitioner could not succeed because of its financial deficiency. As a result whereof, the project was allotted to the private non-petitioner in accordance with the prescribed procedure of law. For the foregoing reasons, the writ petition does not merit consideration. It is, therefore, dismissed with no order as costs.