' MUHAMMAD JUNAID GHAFFAR, J.---Through instant petition, the petitioner has prayed for declaration to the effect that the bid submitted by the respondent No,5, against a tender floated by the respondent No,1, is non-responsive and is in violation of the Public Procurement Rules, 2004 (hereinafter referred to as "Procurement Rules, 2004"), hence, liable to be rejected and instead the bid submitted by the petitioner must be declared to be the lowest evaluated bid in terms of the Procurement Rules, 2004.
2. Briefly the facts as stated in the Memo of petition are that the respondent No,1 through respondent No, 2 (National Engineering Services Pakistan (Pvt.) Limited "NESPAK") published an advertisement on 29-5-2014 and invited bids from interested parties for "Levelling and Grading Works for 6;600 MW Pakistan Power Park Project at Gaddani Baluchistan, Pakistan." Through the tender documents the respondent No,1 adopted a single stage-two envelope procedure, whereby the bidders were required to submit two separate envelopes being the technical and financial proposals. It is further stated that several bidders participated in the tender, including the petitioner and the respondent No,5, all of whom submitted their bids on 10-6-2014. It is the case of the petitioner that on the date of opening of the Financial Bids, it transpired that the bid submitted by respondent No,5, though was the lowest, but was Non-responsive and was conditional. It is further stated that the petitioner raised objections in this regard and wrote letters dated 19-6-2014 to the officers of respondents Nos.1 and 2, whereby it was requested that the since the bid of respondent No,5 was conditional, hence liable to be disqualified. The petitioner has also raised an objection in respect of Non issuance of Bid Evaluation Report, which according to the petitioner has neither been prepared nor supplied to the petitioner. However, the petitioner has been able to unofficially procure three pages of an extract of a report, purportedly prepared by respondent No,2, through which it has been learnt that the bid of respondent No, 5 is Nonresponsive and conditional. The petitioner has filed instant petition, whereby the extract of such report has been impugned and has sought the aforesaid relief(s).
3. Mr. Arshad Tayebaly learned counsel for the petitioner contended that the impugned extract of report reflects that the bid of respondent No,5 is Non-responsive and conditional and is in violation of clause 26.2 of the bidding and contract document. Learned counsel further contended that it is also in violation of Rule 31 of the Procurement Rules 2004 and cannot be considered by respondent No,1 while finalising the tender. Per learned Counsel the bid submitted by the petitioner is responsive as well as the lowest evaluated bid within the meaning of Rule 2(h) of Procurement Rules, 2004, hence the petitioner is entitled for the award of contract. Learned counsel further contended that the respondent No,1 was required under Rule 35 of the Procurement Rules, 2004, to provide a Bid Evaluation Report at least 10 days before the award of the contract, whereas respondent No,1 is illegally proceeding to award the contract to respondent No,5 in violation of such Rule. Learned counsel prayed that instant petition may be allowed by declaring that the petitioner's bid is, the lowest evaluated bid which must be accepted and the contract be awarded to the petitioner.
4. Conversely Mr. Badar Alam, learned counsel appearing on behalf of the respondents Nos. 1 and 2, has vehemently opposed the maintainability of instant petition, as according to the learned counsel the contract was still not awarded to anybody including the respondent No,5, whereas, the petitioner has approached this Court prematurely, merely on the basis of some extract of a purported report allegedly prepared by respondent No,2. Per learned counsel, the entire case of the petitioner is based on the said extract of reports which is neither complete nor signed by anybody; whereas, the petitioner has approached this Court with unclean hands and has obtained an Ex parte restraining order by concealing material facts, hence, not entitled to any discretionary relief.
By this Court. Learned counsel further contended that the respondents have followed the procedure and Procurement Rules, 2004, and have complied with Rules 35 and 41 of the said Rules.
Learned counsel further contended that the bid offered by the petitioner was Rs,390,000,000, whereas, the respondent No, 5 has offered a bid of Rs,212,520,000 hence under no circumstances the bid offered by the petitioner could be termed as the lowest bid. Learned Counsel further contended that the petitioner has come to this Court prematurely, even before the Bid Evaluation Report could be finalised and has obtained some pages of the purported report which is still to be finalised and accepted by respondent No,1. Per learned counsel such act of the petitioner is itself in violation of Rule 41 of the Procurement Rules, 2004, read with clause 24 of Instructions to bidders, which requires the Bid ...Evaluation Report as well as all matters relating to bidding and award of the contract, to be confidential, hence the petitioner is not entitled for any discretionary relief from this Court. On merits of the case, the learned counsel contended that even otherwise, in view of Rule 31 of the Procurement Rules, 2004 read with clause 73.1 of the invitation to bid, the procuring agency is well within its rights to seek and accept clarifications in the bid that do not change the substance of the bid.
5. We have heard both the learned counsel and perused the record. Since a short controversy is involved, by consent of both the learned counsel instant petition is being disposed of at Katcha peshi stage.
6. It appears that the respondent No, 1 invited bids for Levelling and Grading of Land at Gaddani Power Park through its contractor M/s NESPAK, respondent No,2 on 29-5-2014 in which various bidders participated and submitted their bids, including the petitioner and respondent No,5. It further appears from the record and which has not been disputed by the petitioner, that the petitioner submitted a bid for Rs,390,000,000.00 whereas; respondent No, 5 submitted a bid for Rs,212,520,000.00. It is also not in dispute that insofar as other bidders are concerned, their bids were much higher than the bids offered by the respondent No,5 and the petitioner. It is also a matter of record which has not been controverted by the learned counsel for the petitioner that till date no Final Bid Evaluation Report has been finalised as a status quo order is in operation since 30-6-2014, whereas, the apprehension of the petitioner is primarily based on some portion of the extract of a purported report (at pg: 517-521) which is neither complete nor has been signed by anyone. It is also a matter of record that even otherwise; such report of which extract has been placed on record has still not been accepted by respondent No,l. In view of such admitted position, we have no doubt in our minds to observe, that to us, it prima facie appears that instant petition is premature in nature and has been filed without their being any cause of action available with the petitioner. Besides this, it is further reflected from the record, that the only cause of action, if any, available with the petitioner, is the extract of some pages of a purported report, which according to the petitioner suggests, that the contract has been awarded to respondent No, 1, which again has been disputed on behalf of the official respondents. Hence, even otherwise, in Constitutional jurisdiction, we are not obliged/inclined to examine, ascertain and adjudicate such factual aspect of the matter. Though, we may not dilate upon the merits of the case, lest it may prejudice any of the parties, however, after having a cursory look at the material placed before us, it has been noticed that even otherwise, the bid offered by the petitioner is much higher than the one offered by respondent No,5, and perhaps, the procuring agency is well within its right to seek clarification from respondent No 5, if otherwise the bid is acceptable to the procuring agency. It would not be out of place to mention that the intention in formulating the Procurement Rules 2004, is to ensure transparency and procurement of goods and services at the most competitive prices. It is not to be used in a manner whereby, the procuring agency is forced to accept bids which are otherwise higher and exorbitant, like the one which the petitioner has offered, in the instant matter. In such a situation the procuring agency is well within its right to invoke the provisions of Rule 31 of the Procurement Rules, 2004, which provides that the procuring agency may seek and accept clarification to the bid that do not change the substance of the bid. Therefore, in such a situation, wherein the bid offered by the petitioner is admittedly not the lowest, rather almost twice the amount offered by respondent No,5, the petitioner does not seems to be entitled for the relief being sought from this Court under Article 199 of the Constitution of Pakistan, which being discretionary in nature cannot be exercised in favour of the petitioner who has otherwise failed to convince this Court for grant of any indulgence at this stage of the proceedings, which are still to be finalised.
7. It may be observed further, that even otherwise the Procurement Rules, 2004, provides a complete mechanism for redressal of grievance of an aggrieved person. Rule 48 of the Procurement Rules, 2004, provides that the procuring agency shall constitute a committee comprising of odd number of persons, with proper powers and authorizations, to address complaints of bidders that may occur prior to the entry into force of the procurement contract.
Sub-Rule (2) further provides that any bidder feeling aggrieved by any act of the procuring agency after submission of bid may lodge a complaint concerning his grievances not later than fifteen days after the announcement of the bid evaluation report under Rule 35, which shall be investigated and decided upon within fifteen days of the receipt of the complaint. It has been further provided that if the bidder is not satisfied with the decision of the committee, the bidder may lodge an appeal in the relevant court of jurisdiction. Whereas in the instant matter, as observed hereinabove, the petitioner has approached this Court even before the Bid Evaluation could be finalised by the respondents, after which the petitioner could have availed the alternate remedy provided under the statute. In our view, the petitioner has in fact pre-empted the decision of the official respondents, and has invoked the Constitutional jurisdiction of this Court, which we believe is not the proper course to be adopted in the instant matter. Consequently we hold that instant petition is not maintainable as it has been filed at a premature stage, and even without availing the alternate remedy provided under the Procurement Rules, 2004. Reference in this regard may be made to the case of Messrs KSB Pumps Company Ltd. v. Government of Sindh and others (2011 M LD 1876). This matter was in respect of Sindh Public Procurement Rules, 2010, wherein Rule 31 has been discussed. However, the provisions of Rule 31 of the Sindh Public Procurement Rules, 2010, are more or less identical to Rule 48 of the Procurement Rules, 2004. The learned Division Bench of this Court speaking through one of us namely Aqeel Ahmed Abbasi, J., has been pleased to examine the maintainability of petition on the touchstone of alternate and efficacious remedy in terms of Rule 31 of the Sindh Public Procurement Rules, 2010, and has held that though there is no absolute bar in entertaining grievances of an aggrieved person in exercise of writ jurisdiction, however, such discretion is to be exercised with circumspection and as an exception and not as a rule. It has been further held that in cases, where there is jurisdictional error, lack of authority and alternate remedy is not efficacious, depending on facts and circumstances of each case, extraordinary jurisdiction could be invoked. It would be advantageous to refer to the relevant findings of the learned Division Bench which reads as follows:- "17. On perusal of the provision of Rule 31, as reproduced above, it appears that to address the complaints of bidders that may occur during the procurement proceedings, elaborate mechanism has been provided, whereby the procuring agency is required to constitute a Complaint Redressal Committee (CRC) comprising odd number of persons, with appropriate powers and authorizations including authority to, prohibit the procurement committee from acting or deciding in a manner, inconsistent with procurement rules and regulations or annul in whole or in part, any unauthorized act or decision of the procurement committee and reverse any decision of the procurement committee or substitute its own decision for such a decision. However, CRC has no power to award the contract. It further appears that a time bound mechanism has been provided for the CRC to proceed and decide the complaint. In the event, if bidder is still dissatisfied with the decision of the CRC, remedy by way of appeal to the Chief Secretary, has been approved in terms of Sub-Rules (8) and (9) of Rule 31 ibid. Upon receipt of an appeal and registration fee the Chief Secretary is required to select a review panel, comprised of experts in relevant field, to examine the complaint.
Review Panel has vast power, including rejection of complaint entailing forfeiture of bid security, annulment in whole or in part of complained act or decision and make recommendation to the Chief Secretary, who shall finally decide the controversy. The decision of the Chief Secretary is final and procuring agency is under obligation to act upon such finding.
18. High Court before exercising its extraordinary jurisdiction must be satisfied about the non- availability, or inefficacy of alternate remedy provided under law and once it is shown to the satisfaction of the High Court that alternate remedy is expedient, effective, then courts would be reluctant to exercising writ jurisdiction, which is not meant to bypass such authority to render such hierarchy as redundant and superfluous. The Hon'ble apex Court, in number of cases has deprecated tendency to invoke writ jurisdiction, bypassing remedy provided under relevant statute, one may refer to case of Khalid Mehmood v. Collector of Customs 1999 SCM R 1881 and Match Company Ltd. v. Authority under Payment of Wages Act, 2003 SCM R 1493.
20. On 9-6-2011 when this petition came-up for hearing and notices were directed to be issued to the respondents, the petitioner was put to caution that if the petition fails on merits entire cost of the petition in addition a heavy cost may be imposed upon him. There is no cavil to the proposition that Article 199 of the Constitution of Pakistan provides ample powers to the High Court to remedy a wrong by exercising the extraordinary constitutional jurisdiction. However, while exercising such extraordinary jurisdiction the High Court must be satisfied about the non-availability or inefficacy of alternate remedy provided, under the relevant law, and once it is shown to the satisfaction of the High Court that alternate remedy provided under the law is expedient and effective then the courts would be reluctant to exercise writ jurisdiction. The parties cannot be allowed to by-pass such authority provided under the law for redressal of the grievance to render such hierarchy as redundant and superfluous. Such tendency has been deprecated in number of cases by the Hon'ble apex Court."
8. Similar view has been taken by another learned Division Bench of this Court in the case of Saeed Ismail Burero v. Province of Sindh through Secretary Education, Government of Sindh and another (2014 YLR 825).
52. Upon perusal of the provisions of Rule 31 ibid the petitioners have suitable efficacious alternate remedy by way of presentation, appeal and review by a review panel. In the case in hand there exists no exceptional circumstances which can justify / warrant exercise of extraordinary jurisdiction of this Court by invoking Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On this score the instant petitions, in our view, also fail
9. Likewise, another learned Division Bench of this Court in the case of Messrs Igbal and Sons v. City District Government and others reported in (SBLR 2011 Sindh 1249/1261 (Para 16 and 17) has observed as follows:-- "16. On perusal of the provisions of rule 31, as reproduced above, it appears that "to address the' complaints of bidders that may occur during the procurement proceedings, elaborate mechanism has been provided, whereby the Procuring Agency (i.e, CDGK in instant case), is required to constitute a Complaint Redressal Committee (CRC), comprising odd number of persons, with appropriate powers and authorizations including authority to, prohibit the procurement committee from the acting or deciding in a manner, inconsistent with procurement rules and regulation or annul in whole or in part, any unauthorized act or decision of the procurement committee and reverse any decision of the procurement committee or substitute its own decision for such a decision. However CRC has no power to award the contract. It further appears that a time bound mechanism has been provided for the CRC to proceed and decide the complaint. In event the bidder is still dissatisfied with decision of the remedy by way of appeal to the Chief Secretary, has been provided in terms of sub-Rules (8) and (9) of Rule 31 ibid. Upon receipt of an appeal and registration fee, the Chief Secretary is required to select a review panel, comprised of expertise in relevant field, to examine the complaint. Review Panel has vast power, including rejection of complaint entailing forfeiture of bid security, annulment in whole or in part of non complaint at or decision and make recommendation to the Chief Secretary, who shall finally decide the controversy. The decision of the Chief Secretary is final and Procuring Agency is under obligation to act, upon such finding.
17. High Court before exercising its extraordinary jurisdiction must be satisfied about the non- availability, or inefficacy of, alternate remedy provided under law and once it is shown to the satisfaction of the High Court that alternate remedy is expedient, effective, then courts would be reluctant to exercise writ jurisdiction, which is not meant to bypass such authority to render such hierarchy as redundant superfluous. Apex Court in number of cases has deprecated tendency to invoke writ jurisdiction, by passing remedy provided under relevant statute, one may refer to case of Match Company Ltd. V. Authority under Payment of Wages Act, 2003 SCMR 1492."
10. Since the petitioner has not challenged the legality or transparency of the entire process of floating the tender inviting the bids, nor has alleged any violation of the Procurement Rules, 2004, by the respondents through instant petition and has filed instant petition merely on the basis of some misconceived apprehension at a premature stage, when the entire process of Evaluation of Bids has not been finalised, therefore, we do not see any reason to interfere in the process of bidding which otherwise appears to have been undertaken in accordance with the Procurement Rules, 2004. Merely by raising an objection in piece meal at a premature stage, on the basis of some purported report of NESPAK in the instant case, which otherwise appears to have been obtained surreptitiously and in violation of Rule 41 of the Procurement Rules, 2004, read with clause 24 of Instructions to bidders, and by violating the secrecy required for submission of tenders, would not in any manner entitle the petitioner to approach this Court directly under Article 199 of the Constitution by abandoning the forums provided under the Procurement Rules, 2004, where such objections can be agitated and decided by the authorities after hearing the concerned parties. We are of the view that the petitioner has filed instant petition without any cause of action or a grievance as no decision relating to the controversy raised through instant petition, has so far been taken by the respondents, whereas, only purpose which could have been achieved by filing instant petition was to frustrate and thwart the bidding process which by itself would involve financial losses and delay in performance of public work. We are of the view that parties cannot be allowed to bypass such remedy as provided under the law for redressal of the grievance to render such remedy as redundant and superfluous. Reliance in this regard may be placed on the case of Khalid Mahmood v. Collector of Customs (1999 SCM R 1881).
11. On 26-11-2014 when the matter was taken up for hearing to be disposed off at Katcha Peshi stage, learned counsel for the petitioner was confronted as to the maintainability of instant petition, in view of its being pre-mature and, the availability of adequate remedy before the forums under Procurement Rules, 2004, whereas, an option was also given to the learned Counsel for the petitioner to the effect that instant petition may be disposed of with the directions to the petitioner to approach the forums as provided under Procurement Rules, 2004, by raising all such objections which have been raised through instant petition at the relevant point of time and the respondents will be directed to decide the complaint of the petitioner after providing opportunity of being heard to the concerned parties in accordance with the relevant Rule of the Procurement Rules, 2004, however, learned Counsel for the petitioner insisted for the disposal of petition on merits.
12. Accordingly, in view of herein above facts and circumstances of the case, and after having reached to the conclusion that instant petition, besides being premature and misconceived in fact and law, is frivolous, we had dismissed the same in limine vide our short order dated 26-11-2014 with cost of Rs,25000 to be deposited in the High Court Clinic and these are the reasons of such short order.