' MIANGUL HASSAN AURANGZEB, J.---Through the instant writ petition, the petitioner, M/s Mia Corporation (Pvt.) Limited, has voiced its grievance against the decision of respondent No,1 (Pakistan Public Works Department) to award the contract for the procurement and installation of Heating, Ventilation and Air-Conditioning ("HVAC") equipment to respondent No,3, (M/s Wyler Engineers and Contractors) without an advertisement or going through a competitive tender bidding process as required by the Public Procurement Regulatory Authority Rules, 2004 ("PPRA Rules").
2. The record shows that respondent No,1, in the year 2015, had invited bids for the award of a contract for the procurement and installation of HVAC equipment for the headquarters of the National Accountability Bureau, Sector G-5/1 Islamabad. The petitioner participated in this bidding process, and was prequalified along with five other bidders. The petitioner turned out to be the lowest and most responsive bidder. It's bid of Rs,235,709544/- was accepted by respondent No, 1.
Consequently, respondent No,1 issued Letter of Award dated 09.02.2016 to the petitioner. On 21.03.2016, respondent No,2 (M/s Hassan Associates (Pvt.) Limited), who had been appointed as the consultant for the project by respondent No,1, issued a Letter of Commencement to the petitioner, Subsequently, a number of disputes and differences in connection with and arising out of the contract developed between the petitioner and respondent No,1, culminated in the issuance of a termination letter dated 10.06.2016 by respondent No,1 to the petitioner. In the said termination letter, it was alleged that the petitioner had failed to open a Letter of Credit for the procurement of the required equipment even though 122 days out of a total contract period of 180 days had lapsed.
The termination of the contract caused the petitioner to file an application under Section 20 of the Arbitration Act, 1940 ("the 1940 Act") before the court of learned Civil Judge, Islamabad, on 18.06.2016. Along with the said application, the petitioner also filed an application for interim relief praying for inter alia, restraining the respondents from performing any further works regarding the procurement and installation of the HVAC equipment. Vide ad-interim order dated 18.06.2016, the respondents before learned civil court were restrained from encasing the mobilization advance guarantee and performance bonds furnished by the petitioner in pursuance of the contract. The said injunction was issued on the condition that the guaranteed amount was deposited in the court.
3. It appears that after terminating the contract, respondent No,1 took steps to award the contract for the procurement and installation of HVAC equipment by inviting quotations from only the five bidders/parties (excluding the petitioner) which had been prequalified at the stage prior to the award of the contract by respondent No,1 to the petitioner. In other words, after terminating the contract, respondent No,1 decided not to issue a fresh tender adverb torment for inviting bids for the procurement and installation of the HVAC equipment, but resorted to a selective bidding amongst the five bidders/parties. This process culminated in the award of the re-procurement contract to respondent No,3. On 29.06.2016, the petitioner filed the instant writ petition, praying for the following relief:- "In the light of the foregoing facts, submissions and circumstances, as well as the applicable legal provision, it is most respectfully prayed, that, this Honourable Court may be pleased to allow this instant Writ Petition and set aside the Impugned Re-Tendering Process, whereby Project Works were awarded to the Respondent No,3,.
' It is further prayed that the Impugned Termination notice may be set aside: ' In alternate, it is prayed that the Petitioner may be allowed to participate in fresh re-tendering process, to be initiated after due compliance with the applicable regulatory mechanism, including the PPAA Rules; ' Any other relief not specifically prayed for, which this Hour able Court deems fit and appropriate on facts of instant case as well as in interest of justice, equity and fair play, may also be granted to the Petitioner."
4. Learned counsel for the petitioner after narrating the events that led to the issuance of the termination letter dated 10.06.2016, and the filing of the application under Section 20 of the 1940 Act, submitted that respondent No,1 had initiated the process for the re- procurement of the HVAC equipment without issuing an advertisement inviting parties to participate in the bidding process; that by doing so respondent N6.1 had violated the norms of a transparent tender bidding process; that the lowest and most competitive price for the procurement of the HVAC equipment could have been obtained only if respondent No,1 had issued an advertisement inviting bids from all interested parties; that since respondents Nos.1 and 2, in the re-procurement process, had changed the Bill of Quantities ("BOQs"), this was an added reason why the said respondent should have issued a fresh tender advertisement; that as a consequence of the unlawful selective tender bidding process, respondent No,1 had awarded the contract to respondent No,3; that respondents Nos.1 and 2 had violated rules 3, 4, 14 and 20 of the PPRA Rules as well as the law laid down in the cases of M/s Malik Mushtaq Goods Transport Co. v. Federation of Pakistan (PLD 2010 Lah. 289=2010 CLD 726 and Habibullah Energy Limited v. WAPDA through Chairman (PLD 2014 SC 47), by not issuing a fresh advertisement inviting bids in the re-procurement process for the HVAC equipment.
Learned counsel for the petitioner prayed for the contract awarded to respondent No,3 as a result of the unlawful selective biding to be scrapped, so that rebidding could take place strictly in accordance with the PPRA Rules.
5. On the other hand Mr. Muhammad Mushtaq, Chief Engineer, Pakistan Public Works Department, appeared and submitted that the termination of the contract between the petitioner and respondent No,1 was lawful inasmuch as the petitioner had miserably failed in timely discharging its obligations under the said contract; that since the contract between the petitioner and respondent No,1 had been terminated, the petitioner had no right to question the decision taken by respondent No,1 or its consultant with respect to the re-procurement process; that respondent No,1 had committed no violation of law by resorting to a selective tender bidding process by inviting quotations for the supply and installation of the HVAC equipment only from those parties which had been prequalified in the earlier round of bidding; that the PPRA Rules do not expressly prohibit the invitation of quotations from the parties which had been prequalified prior to the termination of the contract; that respondent No,1 had resorted to such a selective tender bidding process, because the initiation of a bidding process by issuing a fresh public advertisement would have taken a very long time; that in the re-procurement process, the BOQs were changed because of an increase in the air conditioning area.
6. Ch. Nadeem Ahmed Bhutta, Advocate for respondent No,2 objected to the maintainability of this petition by submitting that after the termination of the contract, the petitioner had no right to challenge the decision taken by respondents Nos.1 and 2 regarding the re-procurement process.
He further submitted that as the petitioner had already filed an application under Section 20 of the 1940 Act, before the learned civil court, it could not agitate the same grievances before this Court in its constitutional jurisdiction; that there was an arbitration clause in the contract between the petitioner and respondent No,1, therefore, the petitioner had an alternative remedy for the redressed of its grievances; that the petitioner could not agitate his contractual rights before this Court in a petition under Article 199 of the Constitution; that this case involved several disputed questions of fact which could not be resolved without recording evidence; that the petitioner had not come to this Court with clean hands, because on account of breach of contract committed by the petitioner, respondent No,1 had terminated the contract. In making his submission, the learned counsel for respondent No,2 placed reliance on the law laid down in the cases of Pakrom Limited v.
Federation of Pakistan (PLD 2011 SC 44), Indus Trading and Contracting Company v. Collector of Customs (2016 SCMR 842), Quality Weaving Mills Limited v. Government of Punjab (2005 CLC 964), GETZ Pharma (Pvt.) Limited v. Federation of Pakistan (PLD 2016 Sindh 420), Syed Bhais (Pvt.) Limited v. Government of Punjab .(PLD 2012 Lahore 52) and .Muhammad Maqsood Sabir Ansari v. District Returning Officer (PLD 2009 SC 28).
7. This Court, on 18.08 2016, heard the arguments of the petitioner and respondents Nos.1 and 2 at considerable length. Mr. Muhammad Mushtaq, Chief Engineer, Pak PWD, after making his submissions pointed out that respondent No,3, who had been awarded the re-procurement contract was un-represented, and deserved to be heard. Therefore, notices were directed to be re- issued to respondent No,3 through courier as well as registered A.D, and the matter was adjourned to 25.08.2016, whereon the representative of respondent No,3 sought time to engage the services of a counsel. On 30.08.2016 and 31.08.2016, the learned counsel for respondent No,3, addressed his arguments.
8. Learned counsel for respondent No,3 submitted that the re-procurement contract awarded by respondent No,1 to respondent No,3 is required to be completed on 20.12.2016; that 85% of the project has been completed; that the Letter of Credit had been opened and a substantial amount had already been invested; that respondent No,3 was not a party to the application under Section 20 of the 1940 Act filed by the petitioner; that the said application was filed after the contract was awarded to respondent No,3; that the petitioner could not file a writ petition in the presence of an alternative remedy of arbitration in terms of Rule 49 of PPRA Rules; that even though the contract between the petitioner and respondent No,1 had been terminated, respondent No,1 had committed no illegality by requiring the prequalified parties in the earlier round to submit their quotations for the procurement and installation of HVAC equipment under the changed BOQs; that none of the other prequalified parties had objected to the award of the re-procurement contract to respondent No,3; that there was healthy competition between five parties that had been prequalified in the earlier round. Learned counsel for respondent No,3 prayed for the writ petition to be dismissed with costs. In making his submissions, learned counsel for respondent No,3 placed reliance on the law laid down in the cases of Jan Muhammad Mughal v. Tariq Saleem Dogar (2011 MLD 769), Noman Razzaq v. Faryad Hussain Chaudhry (PLD 2015 SC AJ&K 7) and Haider Khan v.
Additional Chief Secretary, FATA (2012 MLD 1830).
9. I have heard the arguments of the learned counsel for the contesting parties, as well as the Chief Engineer, Pak PWD, and have perused the record with their able assistance, The facts leading to the filing of the writ petition are set out in sufficient detail in paragraphs 1 to 3 above, and need not be recapitulated.
10. I propose at first, to deal with the preliminary objection raised by the learned counsel for respondent No,2 that the petition is liable to be dismissed, because it raises several disputed questions of fact, which could not be resolved in the constitutional jurisdiction of this Court. As mentioned above, this Court; in these proceedings, is only to determine whether it as lawful for respondent No,1 to invite quotations for the re-procurement contract from five bidders which had been pre-qualified in the bidding process prior to the award of the contract for the supply and installation of HVAC equipment by respondent No,1 to the petitioner, and its subsequent termination by respondent No,1 . The respondents have not denied that such a selective bidding process for the re-procurement contract was adopted and that no advertisement for inviting bids for the re- procurement contact was published. Respondent No,1, in its written comments, has pleaded as follows:- "As already' explained that in the presence of already pre-qualified firms, there was no need to re-advertise for retendering. There is no restriction froth PPRA in this regard."
11. In the case at hand, the learned counsel for the respondents have not identified any fact asserted by the petitioner which has been disputed by the respondent, and cannot be resolved without recording evidence. A respondent in a writ petition cannot expect to have the by making a vague and general assertion to the effect that the petition involves disputed questions of fact. For a respondent to succeed on this score, he must identify the disputed questions which cannot be resolved without the recording of evidence. Reference in this regard may be made to the following case-law:--
(i) In the case of Saad Muhammad Shaheen Ali-Soofi v. Principal and Chairman Academic Council, Sindh Medical College (1982 CLC 805), it has been held at page 815 of the report as follows:- "The learned counsel for the respondent No, 1 lastly contended that as disputed questions of facts are involved in the petition it should be dismissed. ... There is no cavil to the proposition that the disputed questions of fact cannot be gone into by the High Court in exercise of the Constitutional jurisdiction under Article 199 of the Constitution. However, each case has to be considered on its merits and before this principle is applied it has to be considered whether disputed questions of facts are involved in it. Merely because a certain assertion has been made and denied by the other party does not ipso facto make it a disputed fact. In order to establish that a fact is a disputed question of fact, the party making such allegation has to make out a prima facie case or place on record certain material from which it may be possible for Mt Court to determine that the dispute involves controversial question of fact or that the controversy will require evidence and investigation."
(ii) In the case of Shamim Khan v. Pakistan Defence Officers Housing Authority (1999 YLR 410), a judgment authored by the great jurist Sabihuddin Ahmad J., it has been held at page 413 of the report as follows:-- "... In our humble opinion, the mere existence of a factual controversy will not bar the maintainability of this petition. However; if it can be shown that there is a substantial and not merely illusory factual dispute, the relief claimed can only be granted upon resolution of such dispute and such resolution cannot be effected on the basis of affidavits and material on record, but requires an elaborate inquiry into facts, the Court would be persuaded to take the view that the alternative remedy by way of a civil suit is adequate and more efficacious and, therefore, a petition would not lie."
12. In this case there is no question of investigating a complicated or a disputed question of fact.
Hence, the respondents' objection/contention that the petition should be dismissed on account of disputed questions of fact fails and is accordingly rejected.
13. As regards the respondents' assertion that contractual disputes could not be resolved in writ jurisdiction, suffice it to say that in the present case the petitioner is not seeking the enforcement of contractual obligations or to resolve contractual disputes, but is only seeking to strike down the decision of respondent No,1 to resort to selective bidding between the parties who were pre- qualified prior to the termination of the contract between the petitioner and respondent No, 1 .
14. The disputes and differences in connection with and arising from the contract between the petitioner and respondent No,1 are presently the subject matter of the application under Section 20 of the 1940 Act, which is pending adjudication before the learned civil court. This Court has no intention of going into or determining those contractual disputes. The sole question for determination before this Court is whether respondent No,1, after terminating the contract with the petitioner, was under an obligation to start a tender bidding process de novo for the procurement and installation of HVAC equipment, by issuing an advertisement for the invitation of bids OR whether it could resort to selective bidding by inviting quotations, from the parties that had been prequalified in the earlier round of bidding. Therefore, the objection/assertion of the respondents that the petition should be dismissed because the same -involves contractual disputes is also spurned.
15. The learned counsel for the respondents also contended that as the contract between the petitioner and respondent No,1 had been terminated on account of the petitioner's breach of contract, the petitioner had not approached this Court with clean hands. Whether or not the petitioner had committed breach of contract is yet to be determined in accordance with the dispute resolution mechanism enshrined in tie contract executer: between the petitioner and respondent No l. As the petitioner's application under Section 20 of the 1940 Act was still pending adjudication, it was premature for the respondents to assert that the petitioner had approached with soiled hands.
16. Coming to the merits of the case, the learned counsel for fen respondents and the Chief Engineer, Pak PWD, could not identify any provision in the tender documents which enabled respondent No,1 to call for quotations from the bidders who had been pre- qualified in the tender bidding process prior to the award and subsequent termination of the contract between the petitioner and respondent No, 1 . The respondents' defense was that the PPRA Rules do not explicitly prohibit seeking quotations from parties that were pre-qualified at an earlier stage i,e, prior to the award of the contract to a successful bidder, and its subsequent termination. Respondents' position is that since the pre-qualification process had been carried out at an earlier stage, there was no need for a de novo initiation of a tender bidding process by issuing an advertisement and inviting bids for the re-procurement contract from the open market.
17. PPRA Rules are not exhaustive and do not cater for each and every eventuality that can be thought of in the realm of tender- bidding. The PPRA Rules are codified norms and requirements of a fair, open, competitive and transparent tender bidding required to be conducted by the Government or Public Sector Organizations. The mere fact that a certain process adopted for bidding by a procuring agency is not expressly prohibited by the PPRA Rules will not pose as an obstacle before this Court to examine the process on the touchstone of fairness, reasonableness and transparency. These requirements are also stipulated in Rule 4 of the PPRA Rules, which provides that procuring agencies, while engaging in procurements, shall ensure that the procurements are conducted in a fair and transparent manner, the object of the procurement brings value for money to the agency and the procurement process is efficient and economical.
Additionally, Rule 20 of the PPRA Rules reads as follows:- "20. Principal method of procurement. -Save as otherwise provided hereinafter, the procuring agencies shall use open competitive bidding as the principal method of procurement for the procurement of goods, services or works."
18. In Suo Motu Case No,5 of 2010 (Action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by awarding LNG Contract) (PLD 2010 SC 731), the Humble Supreme Court has held that it is the duty of the Court to ensure that Public Procurement Regulatory Authority Ordinance, 2002 read with the PPRA Rules are adhered to strictly to ensure transparency. Further, in the case of Tipu Salmon Makhdoom v. Federation of Pakistan (PLD 2014 Lahore 468), it has been held that the Government could not bypass the procurement process as provided under the PPRA Rules. In the case of Muhammad Atif Hanif v.
Government of Punjab (2013 CLC 1612), the Humble Lahore High Court, after referring to the provisions of the Public Procurement Regulatory Authority Ordinance, 20.02 and the PPRA Rules, held as follows:- "21. As will be evident respondent No,1 is a Procuring Agency within the meaning of section 2(1) of the Act, ibid. The provisions of the Act and the Rules. Ibid, are mandatory in nature for all Procuring Agencies. Respondent No,2 is, therefore, bound to follow the procedure as laid down in the Act and the Rules, ibid, in matters of Public procurement. The method of procurement has been spelled out in great detail in the Rules, ibid, which inter alia provide for public advertisement and envisage a process of open bidding. There is no provision for negotiation or award of contract by way of private negotiations. Reliance in this regard is placed on a judgment of the Humble Supreme Court reported as "Mujahid Muzaffar and others v. Federation of Pakistan and others" (2012 SCMR 1651). "(Emphasis added).
19. As mentioned above, the respondents, in their written comments, have admitted that no advertisement inviting bids from the general public for the re-procurement contract were published. This is in stark violation of Rule 12 of PPRA Rules, which inter ail provides that all procurement opportunities over a certain financial limit should be advertised on Public Procurement Regulator Authority's website as well as in other print media or newspapers having wide circulation. Furthermore, Rule 14 of the PPRA Rules makes it mandatory for all procuring agencies to advertise all procurement requirements exceeding a certain financial limit. Under the said Rule, deviation from the requirement to advertise procurement opportunities or requirements is permissible, with the prior approval of the Public procurement Authority, in the following circumstances only:- "(a) the proposed procurement is related to national security and its publication could jeopardize national security objectives; and
(b) the proposed procurement advertisement or notice or publication of it, in any manner, relates to disclosure of information, which is proprietary in nature or falls within the definition of intellectual property which is available from a single source."
20. It is not the respondents' case that the re-procurement contract for the supply and installation of HVAC equipment at the National Accountability Bureau's Headquarters at Islamabad; "related to national security and its publication could jeopardize national security objectives' or that advertisement would relate to disclosure of information which was proprietary in nature or fell within the definition of intellectual property available from a single source. The respondents' defense was that the PPRA Rules do not expressly prohibit the invitation of quotations from the parties which had been prequalified prior to the award of the contract by respondent No,1 to the petitioner.
21. The requirement of a fresh advertisement inviting bids has been emphasized by the Humble Supreme Court in the case of Habibullah Energy Limited v. WAPDA through Chairman (PLD 2014 SC 47). Paragraph 29 of the report reads as follows:-- "29. Examining the transaction, the subject matter of the instant case in the light of the principles of Judicial Review enumerated hereinabove, it appears that the original process initiated through the advertisement dated 26-7-2003 was for the appointment of a ROMM Operator and was commenced through the Government of Sindh in consultation with WAPDA. The said process was formally terminated on 17-3-2004. The disputed contract of lease was a result of independent process undertaken by WAPDA unrelated to the procedure initiated pursuant to the advertisement dated 26-7-2003. No fresh public advertisement was issued. Such an advertisement is universally accepted as a condition precedent for ensuring a free, fair, open, competitive and transparent process for transfer of public assets or rights therein. In fact no compelling reasons have been pleaded at the bar WAPDA for not issuing such an advisement. The absence of such an advertisement, alone in fact and under the circumstances of the case, is fatal to the transaction in question.