This writ petition seeks a direction from this Court to Pakistan Cricket Board (PCB) to entertain and accept the bid of the petitioner for the sixth team in Pakistan Super League franchise.
2. This Court on the very first date of hearing (01.07.2017), by way of interim relief to the petitioner, directed PCB to provisionally allow the petitioners to submit their bid which wore invited by PCB on 01.05.2017. It was the case of the petitioners before this Court that PCB on 30.05.2017 did not receive the petitioners' bid although the said bid was complete in all respects.
3. Today, it was apprised to this Court that the petitioners' bid was rejected, and the- hid was awarded to Schon Properties Brokerage LLC, which was subsequently added as Respondent No, 3. at the directions of the Court. According to the learned counsel for the petitioners, the bid by them was rejected on hyper technical grounds. It was further stated by him that the petitioners were willing to substantially improve on the offer made by Respondent No, 3.
'4. Learned counsel for PCB has filed the parawise comments in which the stance of the petitioners has been controverted.
5. Arguments heard and record perused.
6.According to the parawise comments, Salman Rehman Afridi being representative of the petitioner appeared on the day of commie of bids (30.05.2017) with a bunch of loose papers when he was directed to put the bids (technical and financial) in two separate envelops as per the requirements of the advertisement. However, the petitioners did not put in the bids by 12 Noon and as such the technical bids of the eligible bidders were opened and the proceedings were adjourned to 01.07.2017 for opening of the financial bids. On 01.07.20 7, the hid committee was informed about the interim decision of this Court and Consequently the technical bid submitted by the petitioners was received and its contents considered whereafter the same was rejected for being non-compliant.
7. Clause 5.2 of the bidding documents required all the bidders to - submit two separate sealed envelopes containing technical and financial proposals by 30th May, 2017 at 12:00 p.m. According to the said clause, the bidding documents must contain, inter-alia, the details of the bidders as required by Schedule II. Similarly, clause 5.3 pertained to the bids by consortium, which reads as under:-- "5.3 <b>Bid Procedure and process</b>
(a) <u> Joint Bids/Consortium Bids</u> If more than once person/entity wishes to submit a Bid as a member of a consortium (whether as partners, joint venturers or through another entity), the following conditions must he met by all those persons and any such entity (the "Joint Bidders")
(i)The Joint Bidders shall be jointly and severally liable in respect of the actions and conduct of the other members in relation to the Bid and, if the Bid is successful, for the discharge of all liabilities and obligations of the Franchisee under the Franchise Agreement and 'a relevant statement to this effect shall be included in the authority required by Clause 5.3(1)(iv) below and the Joint Bidders shall execute and provide guarantee in the form stipulated by the PCB.
(ii)full details of the joint bidding arrangement and/or composition and nature of the consortium must be disclosed; (iii)the Bid shall be signed so as to be legally binding in its entirety on all of the Joint Bidders as joint, and several principal obligors; (iv)one. of the Joint Bidders shall be exclusively and validly authorized by the other or others on behalf of the Joint Bidders to incur obligations and liabilities and to exercise all Team Franchise Rights and to receive communications on behalf of any or all the Joint Bidders in connection with the Bid process and to negotiate and execute any Franchise Agreement on their behalf; and (v)the information and documents required by Clause 5.2(e) above must be provided by each of the Joint Bidders."
8. The entire bidding process was overseen by independent observer, EY Ford Rhodes, which submitted its special report to PC13. This report was also submitted to this Court by PCB along with the parawise comments. According to the said report, Selman Rehman Afridi did not submit the bids to PCI3 on 30.05.2017 by 12 p.m. Regarding the proceedings held on 01.07.2017 for evaluating the financial bids of the eligible bidders, the report stated as follows: The financial Proposals of technically qualified bidders were scheduled to be opened at 2 p.m. on 1 June 2017. As soon as the meeting was convened around 2 p.m.. t he Chairman Bids Committee, Mr. Najam Aziz Sethi received a call and proceedings were halted. Once the Chairman Bids committee reassumed his seat after the call, he announced to all the bidders that the call, was from the PCB lawyer and that; the decision of the Bids Committee to refuse acceptance of bid documents of a bidder on 30 May 2017 due to late submission had been challenged in the Court. He informed that the directives of the Court required the Bids Committee to entertain' and evaluate the bidding documents of the party involved. Therefore, the Bids Committee postponed the financial proposal opening by at least 2 hours.
6.At approximately 2:35 p.m., Mr. Salman Afridi along with two (2) other persons arrived with his technical and financial proposals which comprised a total of 9 envelopes. The bid documents were still not, however, packaged and sealed as required by the ITT. The shortcomings were again pointed out to the representatives and again PCB representatives facilitated through provision of necessary stationery to comply with the conditions of the ITT. Mr. .Afridi claimed that he had put the bidder's Financial Proposal inside one of the envelopes which formed part of the Technical Proposal. He required the Bids committee to provide him a new envelope in order for him to seal the Financial Proposal in a separate envelope. An envelope was provided to him by the PCB. Mr. Afridi stated that the remainder documents comprised the Technical Proposal.
7.Bids Committee considered the Proposal and started its technical evaluation in a separate room.
After evaluation and providing a chance to the representatives of the bidder to clarify some queries regarding their Technical Proposal, the Bids Committee, headed by Mr. Najam Aziz Sethi, unanimously decided not to technically qualify the bidder and communicated the decision along with reasons to the bidder. Bids Committee also returned un-opened the Financial Proposal to Mr. Selman Afridi as stipulated in the ITT."
9. The PCB Bid Committee also submitted its separate report which contained the reasons communicated to the petitioners for rejection of their bid, which are reproduced hereunder: Your Technical Proposal stated that the only bidder was an entity by the name of Bin Zayed International LLC, the same was confirmed by Schedule Il of the Technical Proposal which you had filled out and submitted. However, no accounts or financial statements of the bidding entity, i,e, Bin Zayed International LLC had been provided as part of your Technical Proposal, which was a mandatory requirement of the Bid Document. In the absence of the said financial statements, it was not possible for the Bid Committee to evaluate whether the bidding entity would be able to meet its obligations under the Franchise Agreement if it was successful. In fact, there was no Authority-Letter or Power of Attorney authorizing you to fife on the Bid on behalf of Bin Zayed International LLC.
Perusal of the Technical Proposal revealed that you had provided various documents of another company, namely Al-Haj FAW Motors (Pvt.) Limited; however, this company's name had not been mentioned as the bidding entity in Schedule II. Your representatives thus Invited by the Bid Committee to clarify the discrepancy, upon which you stated that this was a Consortium Bid. It may be noted that the Bid Document stipulates that In case of a Consortium Bid, accounts and financial statements of all bidding entitles must be provided and as stated above, you had failed to provide the accounts of Bin Zayed International LLC. Moreover, as per Clause 5.3 of the Bid Document there were various requirements that were to be met by Consortium Bidders which were not fulfilled by you, including but not limited to, provision of full details of the Joint bidding arrangement and/or composition and nature of the consortium; and various authorizations and statements which are set forth in Clause 5.3(a) of the Bid Document. When confronted with this discrepancy, you requested that the financial statements of a third company, namely Islamic Arab insurance Co. (Salama), may be considered instead. However, no authority letter, power of attorney or any other document required under the Bid Document was provided for this third company. At this juncture, your representatives requested that only Al-Haj FAW (Pvt.) Limited be considered as the Sole Bidder. They were informed that such a request had to be made in writing by the authorized representative in order for it to be considered by the Bid Committee. No such request was ever received by the PCB Bid Committee.
Even otherwise, when the financial statements of Al-I laj FAW (Pvt.) Limited were scrutinized, the Bid Committee was of the considered view that the same were weak and did not demonstrate the requisite financial, strength to enable the bidder to meets its obligations under the Franchise Agreement if successful.
It may be noted that your unopened Financial Proposal was handed over to your representatives in the presence of Independent Auditors, namely Ernst & Young Chartered Accountants, immediately after they were informed that your Technical Proposal had been disqualified. At this juncture, your representatives claimed that a Stay had been granted by the Honourable Lahore High Court, Lahore and that the PCB Bid Committee would be in contempt of the Court if it proceeded with its scheduled tender process. Your representatives were asked to provide a copy of such Order but failed to produce the same and instead, asked PCB to confirm this fact from its lawyer Mr. Taffazul Rizvi who was present before the Honourable Lahore High Court in the proceedings that took place earlier in the day. The Bid Committee did confirm the same with Mr. Rizvi, who advised that the Honourable Lahore High Court did not stay any proceedings but instead had been pleased to allow your Bid to be entertained by PCB in the bidding process and that the outcome of the bidding process would be subject to the decision of the writ petition.
This communion is without prejudice to our reservation that you were late in your submission of the Technical Proposal on the day it was scheduled for."
10.It was argued by the learned counsel for PCB that the bid was in the name of Petitioner No, 2 but its financial accounts were not provided as part of the technical proposal. When the defect was pointed out, it was submitted, the petitioner's representative Salman Rehman Afridi, who was without any authorization to act on behalf of Petitioner No, 2, stated that the bid be considered as a consortium hid on behalf of bath the petitioners. In reply, the learned counsel for the petitioners Submitted that a fresh Schedule-11 to bidding documents in the name of Petitioner No, 1 was also provided to PCB along with the financials/accounts of Petitioner No,
1. This fact was, however, denied by the learned counsel for PCB.
11. The perusal of the record shows that schedule-II of the bidding documents did not contain the name of Petitioner No,
1. Likewise. the financials of Petitioner No, 2 were not provided along with the bidding documents, which was a clear violation of clause 5.3 of the bidding documents. Petitioner No, 2, therefore, submitted a noncompliant bid. This Court is also satisfied from the report of the independent observer that the petitioners failed to present their bid in time on 30.05.2017. Be that as it may, this case presents a number of disputed questions of fact that cannot be adjudicate upon by this Court in the exercise of its Constitutional jurisdiction. The present petition was filed seeking a direction to. PCB to entertain the. petitioner's bid, which prayer was essentially granted on the first date of hearing. The petitioner's hid was, therefore, entertained and was found deficient, the detail, whereof were communicated to the petitioners.
This Court on the basis of available record is satisfied that PCB passed the right decision.
12. This writ petition being misconceived is accordingly dismissed.