' AYESHA A. MALIK, J. --- Through this petition, the Petitioner has impugned the decision of the Respondent No,. 2 to purchase pentavalent vaccine from UNICEF without following the procedure under the Public Procurement Regularity Authority Ordinance, 2002 (PPRA Ordinance).
2. The case of the Petitioner is that the Respondent No,. 2, Ministry of National Health Services, Regulations and Coordination, Islamabad provides free vaccination to the children upto the age of five years. The Respondents invite open bids for the procurement of the required vaccination. The pentavalent vaccine has been procured by the Respondent No,. 2 through public tender in the years 2010, 2011 and 2012. However, by virtue of a proclamation issued on 17.12.2013 bids for the procurement of vaccination for the financial year 2013-2014 were made in which the pentavalent vaccine was not advertised. The grievance of the Petitioner is that the Respondent No,. 2 has not followed the procurement procedure and instead has awarded the contract to purchase pentavalent vaccine to UNICEF, which is against the settled law.
3. Learned counsel for the Petitioner argued that this issue has already been decided in writ petition No,. 2992/2011 and ICA No,. 132/2006 wherein this Court held that the vaccine procured for the Expending Program of Immunization (EPI) must be done through the Public Procurement Rules, 2004 (PPRA Rules). Learned counsel argued that instead of following the prescribed procedure and the law, the Respondents have entered into an agreement with UNICEF for the purchase of the vaccine. Learned counsel argued that the agreement is against public interest because the vaccine must be of a prescribed standard, must contains the required potency, efficacy and quality and that must not be expired. Further argued that in the minutes of meeting held on 09.05.2012 under the Chairmanship of the Special Secretary, Health Department, it was observed that in terms of the Memorandum of Understanding (MOU) signed with UNICEF, UNICEF is absolved of any liability with regard to the value, adequacy, quality, stability or usefulness of the supplies made. UNICEF does not take responsibility for any defective medication nor does it offer any warranty for the vaccine that is provided. On the basis of this, it was discussed and recommended that free supply of vaccines should not be accepted. It was also discussed that UNICEF did not participate in the competitive process, hence its prices should not be accepted. Finally, it was agreed that no procurement should be made with public money without obtaining proper warranty of the vaccine. Learned counsel emphasized the fact that at this meeting it was unanimously agreed that the vaccine procured for the EPI program would be in terms of the PPRA Rules and the PPRA Ordinance. Learned counsel argued that under the PPRA Ordinance in the event that there is a conflict with an international or internal government commitment arising out of international treaty or an agreement then the international commitment or agreement shall prevail. Learned counsel argued that in the instant case there is no international treaty or commitment with the state or with any international institution, hence the Respondents cannot take the benefit of Rule 5 of PPRA Rules. Learned counsel further argued that there is no justification for deviating from the prescribed procedure, which the Respondents have themselves followed for some time. Learned counsel has relied upon the case cited at "Human Rights Cases No,s. 4668 of 2006, 1111 of 2007 and 15283-G of 2010" (PLD 2010 SC 759) in support of his contention that for the purposes of public money, open bidding must be undertaken in every project of the government.
Learned counsel argued that this not only ensures the best price offered but also protects the quality and fairness in the process. Reliance has also been placed upon the case titled "Atta Ullah Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others"
4. Report and parawise comments have been filed by the Respondents No,. 2 and 4. Learned DAG explained that the Government of Pakistan is implementing the EPI policy. In its effort, the Government is supported by a number of partners including GAVI Alliance, which is an international immunization financing institution. With the help of GAVI Alliance, Pakistan is able to procure vaccine including the pentavalent vaccine for routine immunization. Learned DAG argued that the Respondents have been procuring this vaccine through an open tender, however on account of a default in its obligations, GAVI Alliance has compelled Pakistan to purchase the vaccine from UNICEF. He further argued that another reason for not following the procurement process was that the only person that opted for local tender was No vartis Pharma, who has been enjoying this contract for the last several years as it is the single bidder in each auction. Resultantly, the price being offered by No vartis Pharma is far higher than that being offered by the UNICEF.
Learned DAG has explained that under the GAVI Alliance, a country enters into default status when it does not fulfil its co-financing commitment by 31st of December. In the instant case, Pakistan did not fulfil its co-financing status by 31.12.2013, hence a letter was issued by GAVI Alliance that Pakistan should procure the pentavalent vaccine through UNICEF. He argued that the purchase of pentavalent vaccine through UNICEF is covered under Rule 5 of the PPRA Rules as the Government is honouring an international commitment. He further argued that the procurement of the vaccine needs to be done urgently as the government is running out of its stock. Learned DAG stated that under these circumstances the Petitioner has no vested interest and is not an aggrieved person to file the instant writ petition. Rana Muhammad Safdar, National Programme Manager, EPI explained that for the pentavalent vaccine there is only one manufacturer in the world and whether the vaccine is purchased through UNICEF or through a local bidder, it has to be procured from the same source. He explained that all required warranties are taken from the manufacturer and it is ensured that the vaccine procured is not expired and is of the required standard.
5. No, one has entered appearance on behalf of the Respondent No,. 3 nor has any reply been filed on his behalf.
6. Learned counsel for the Petitioner submitted that a reply was filed in the similar writ petition by the Respondent No,. 3 wherein he stated that the agreement between the Respondent No,. 1 and UNICEF does not fall within the ambit of Rule 5 of the PPRA Rules. Learned counsel has also placed on record a letter dated 21.01.2014 to show that the Public Procurement Regulatory Authority, Islamabad had given its legal opinion on the issue stating that MOUs signed between the Respondent No,. 2 and UNICEF does not fall under Rule 5 of the PPRA Rules. He has placed on record the opinion given by the Respondent No,. 2 on 03.10.2013 that before procuring vaccine from UNICEF exemption from the Public Procurement Regulatory Authority, Islamabad should be obtained.
7. Learned DAG pursuant to the orders of this Court has placed on record the relevant documentation to show the approval process for procurement of the pentavalent vaccine from UNICEF. In terms of the documents on 04.12.2013 the issue was referred for approval to the Secretary, Ministry of National Health Services, Regulations and Coordination, Islamabad on the ground that Rule 5 of the PPRA Rules was not applicable. On 10.12.2013 Deputy Director Procurement advised that there is no conflict with the PPRA Rules or with the decision of the Court. On the basis of this opinion, payment of Rs, 1,272,184,985/- to UNICEF was approved for the purchase of pentavalent vaccine. On 27.12.2013 it was informed that the competent authority has allowed advance payment of Rs, 1,272,184,985/- to UNICEF for the purchase of vaccine, syringes and safety boxes.
8. I have heard the learned counsel for the parties and reviewed the record available on the file.
9. The issue before this Court is with respect to the purchase of the pentavalent vaccination. Under the EPI, Pakistan has been approved for support by GAVI Alliance. As per the GAVI Alliance policy vaccination is provided for routine immunization of children under 12 months of age and As per the contentions made by the learned DAG and Ranaco- finance its portion of the approved vaccination. In the event Muhammad Safdar, National Programme Manager, EPI, Pakistan is required to co-finance the cost of the vaccination.10% of the total cost has to be co-financed by Pakistan. In terms of the MOU executed with GAVI Alliance, Pakistan is required to communicate the steps that it has taken to co- rt that this commitment of co-financing is not followed and notified by the Respondent No,. 1, it is considered as a default under the GAVI Alliance policy and the participating country is put to notice of its default and thereafter required to purchase the vaccination from UNICEF. In the instant case on 15.10.2013 the Respondent No,. 2 was informed that Pakistan has been approved by GAVI Alliance for the procurement of pentavalent vaccination and that GAVI Alliance required proof of satisfying the co-financing requirement for the year for which the vaccination has been approved. On 7.11.2013 GAVI Alliance informed the Respondent No,. 2 that Pakistan appears to be at risk of entering into a default status with GAVI as UNICEF has not reported the necessary steps to procure the vaccination to meet the GAVI co-financing commitment for the year 2013. Through this letter dated 7.11.2013 Pakistan was informed that it has to procure the vaccination through the UNICEF. On 22.11.2013 the costs estimates were sent for procurement through UNICEF. On 4.12.2013 the matter was discussed and Dr. Rana Muhammad Safdar, NPM, EPI who gave his recommendation that the procurement and the co-financing with GAVI Alliance is covered under clause 5 of the PPRA Rules, therefore, the amount of Rs, 1,272,184,985.00 should be paid to UNICEF. On 10.12.2013 Deputy Director (Procurement) agreed with the advice of Dr. Rana Muhammad Safdar, NPM, EPI stating that there was no conflict with Rule 5 of the PPRA Rules and there was no conflict with the judgment rendered by this Court in ICA No,. 132/2006 because the question of default as per GAVI co-financing facility had not been considered. The matter was subsequently approved by the Secretary and the amount of Rs, 1,272,184,985/- in favour of the UNICEF as advance payment was allowed. The record shows that Pakistan was in default in the year 2012 on its co-financing requirement and again was in default in the year 2013. A MOU was signed with UNICEF for the supply of the vaccination on 17.12.2013. On 21.1.2014 the Federal Public Procurement Regulatory Authority communicated its advice that this was in violation of Rule 5 of PPR Rules. Rule 5 of the PPRA Rules reads as follows:--- "Whenever these rules are in conflict with an obligation or commitment of the Federal Government arising out of an international treaty or an agreement with a State of States, or any international financial institution the provisions of such international treaty or agreement shall prevail to the extent of such conflict."
' The Procurement Rules have been made under the PPRA Ordinance wherein the basic objective is to regulate the public procurement of goods or services. In the instant case the pentavalent vaccination is to be procured. Through an order in an earlier WP No,. 1858/2006, on 10.11.2006 the Respondents No,. 1 and 2 agreed to follow the PPRA Ordinance and the PPRA Rules for the purchase of the vaccines from the next fiscal year. Against this order an appeal was filed wherein it was held on 30.5.2007 that the Respondents shall follow the PPRA Ordinance and the PPRA Rules in letter and spirit to procure the vaccination under the EPI. They also ensured that the medicines are supplied strictly in accordance with the laws applicable in Pakistan. Since then the record shows that the Respondents have been procuring the pentavalent vaccination as per the process laid down in the PPRA Ordinance and the PPRA Rules. The issue for the Respondents arose in the year 2013 on account of the fact that only one bidder was appearing in the past in the tendering process for the procurement of the pentavalent vaccines. It has been emphasized at great length that the bidder being No,vartis Pharma is offering a higher rate than the rate being offered by the UNICEF, hence the PPRA Ordinance and the PPRA Rules were not followed. I am of the opinion that this argument is not available to the Respondents. PPRA Ordinance and the PPRA Rules are there to ensure transparency in spending public money. Under the circumstances there is no justification not to adhere to the PPRA Ordinance and the PPRA Rules simply because a single bidder is appearing in the bidding process. Therefore this argument has no merit.
10. It has also been argued at great length that Pakistan entered into a default situation with GAVI Alliance in its co-financing obligation, hence the Respondents were compelled to procure the vaccination from UNICEF. Both the Petitioners and the Respondents have placed documents on file to show the manner in which the procurement of the vaccination through UNICEF was allowed. I am of the opinion that the emphasis on the argument of the default in the co-financing requirement is not available to the Respondents because the default if caused is by the Respondents themselves.
They were aware of the obligation of co-financing the procurement of the pentavalet vaccination and there is nothing on the record to show that a default was caused or even that a default situation arose. In the numerous explanations offered before the Court nothing has been brought forward which explains or justifies the delay caused by the Respondents in meeting up with their co-financing requirement. Furthermore the record shows that the Respondents were in default in the year 2012 and GAVI Alliance anticipated a default for its future commitment for the year 2013-14, hence it informed the Respondents that in order to avoid a default situation. The vaccination should be procured through UNICEF. This is evident from the letter communicated by GAVI Alliance on 15.10.2013. The letter provides that GAVI Independent Review Committee has considered Pakistan's Annual Progress Report submitted in May 2013 and on the basis of this report has rendered support/for the pneumococcal and pentavalent vaccines for the year 2014. Appendix A with the said letter communicates the co-finance requirement. Appendix B details the vaccination support programme and for the pentavalent vaccination it says that the country shall release its co-finance payment each year to UNICEF. Subsequently a follow up letter was issued on 7.11.2013 wherein it provides that Pakistan appears to be at risk of entering into default status with the GAVI Alliance, as UNICEF has not reported that the necessary steps to procure vaccines to meet the GAVI co-financing commitment for 2013. Therefore a direction was given by GAVI Alliance that in order to avoid default status and to ensure that the co-financing commitment for 2013 is fulfilled before 31.12.2013, the country should procure its co-finance portion of the approved vaccines through UNICEF. Immediately state machinery was put to work and the advance payment of Rs, 1,272,184,985.00 was approved before 30.12.2013. The quickness of the Respondents in their approval was based on the understanding that Rule 5 of the PPRA Rules was not applicable and the commitment made in WP No,. 1859/2006 and ICA No,. 132/2006 was also not applicable. To the mind of this Court, the justification for not following the PPRA Rules is not available to the Respondents. No,t only did they give their commitment before the Court in WP No,. 1859/2006 as well as in the ICA No,. 132/2006 that they would adhere to the PPRA Ordinance and the PPRA Rules but Rule 5 of the PPRA Rules shows that the same is not applicable for the purposes of the co- financing obligation with GAVI Alliance. The commitment with GAVI Alliance is not an international treaty nor is it an agreement with the State nor is it an agreement with an international financial institution, that it would prevail over the PPRA Rules. On the basis of Rule 3 of the PPRA Rules all procurements made . By the Federal Government within or outside Pakistan, the PPRA Rules are applicable. It is also observed that Respondent N.3 first took the stance that the PPRA Rules were not applicable (Ref. Deputy Director (Procurement) dated 10.12.2013) and then took the contradictory stance, after all approvals were given, that the PPRA Rules were mandatory (Ref.
Deputy Director (Legal) letter dated 21.1.2014).
11. Under the circumstances, the Respondents cannot bypass the procurement process as provided under the PPRA Ordinance and the PPRA Rules. Any commitment with GAVI Alliance falls outside the scope of Rule 5 of the PPRA Rules, hence not applicable to the case at hand.
12. Therefore in view of the aforesaid, this Writ Petition is allowed. The Respondents are directed to hold open tenders under the PPRA Rules for the procurement of the pentavalent vaccination and the commitment it has entered into with UNICEF for the procurement of pentavalent vaccine is illegal for being contrary to the PPRA Ordinance and the PPRA Rules.