CH. MUHAMMAD IBRAHIM ZIA, C.J.---The titled appeal by leave of the Court has been directed against the judgment of the High Court dated 24.1 1.2018, whereby writ petition filed by respondent, herein, has been accepted.
2. The facts forming the background of the captioned appeal are that the respondent, herein, is a Government Contractor and General Order Supplier who being qualified, participated in the bidding process for procurement of Lab and Office Equipment for the project known as "Establishment of POL Quality Control and Weights and Measures Labs with Mobile Unit at Mirpur" which was advertised through tender notice dated 01.03.2018. The respondent's bid was accepted vide bid acceptance letter dated 03.05.2018. The letter also contained the conditions that the respondent/bidder will furnish performance guarantee of 5% amount in the form of CDR within fifteen days, work schedule within 5 days and sign the contract for further proceedings. Through corrigendum dated 07.05.2018 the words "in the form of CDR" were omitted from the letter dated 03.05.2018. It is claimed that the appellants, herein, without providing an opportunity of hearing and without any lawful justification, cancelled the aforesaid bid through the script dated 06.06.2018. The respondent, herein, filed a writ petition before the Azad Jammu and Kashmir High Court on 30.06.2018, whereby , he challenged the legality and correctness of the script dated 06.06.2018. The writ petition was contested by the other side by filing written statement, wherein, it was stated that the respondent, herein, failed to comply with the directions issued by the appellants, herein, and has not deposited the performance guarantee within the stipulated time. It was further stated that through letter dated 03.05.2018, the respondent, herein, was directed to submit work schedule and execute contract agreement within 5 days but he could not do the needful within time, as such his bid has been cancelled. The learned High Court, after necessary proceedings, through the impugned judgment dated 24.11.2018, has accepted the writ petition and directed the respondents, therein, to execute contract with the petitioner/respondent, herein, forthwith.
3. Keeping in view the nature of the controversy , it was felt advised to exped itiously dispose of the matter , therefore, for avoiding unnecessary delay the learned counsel for the parties were directed to file written arguments.
4. The main grievance raised by the appellants in the written arguments is that the impugned judgment is not in accordance with the facts and record of the case. The respondent has miserably failed to fulfill the conditions stipulated in the bid acceptance letter . According to the conditions mentioned in the bid acceptance letter dated 03.05.2018 the respondent/bidder was bound to furnish the performance guarantee within 15 days, work schedule within five days and sign the contract agreement. Due to non-fulfilment of these conditions and also due to some other irregularities, consequently , the bid was cancelled. The learned High Court has fell in misconception of facts while observing that the respondent/bidder has furnished the performance guara ntee within time. The so-called performance guarantee was submitted on 01.06.2018 after expiry of 15 days . Same like, the conditions of submitting the work schedule within 5 days and signing the contract agreement have also not been fulfilled. The respondent/petitioner has not approached the Court with clean hands. While relying upon the cases reported as Abdul Qadir v. Abdul Karim and others 1999 PLC (C.S.) 947, Azad Govt. and others v. Mrs. Jamshed Naqvi and others [2014 SCR 13] and Azad Govt. and others v. Sardar Muhammad Rafique and others [2016 SCR 655], it has been submitted that the writ petition filed by the respondent be dismissed.
5. On behalf of the respondent, the impugned judgment has been fully defended in the written arguments while contending that the respondent/bidder has not failed to comply with the conditions of bid acceptance letter . He has furnished the required performance guarantee within time. The cancellation order was passed without lawful authority or providing opportunity of hearing to the bidder , thus, being violative of principle of natural justice i.e. Audi Alteram Partem , the same is not maintainable. So far as the allegation of failure to provide work schedule is concerned, the respondent/bidder time and again orally contacted the appellants for issuance of work order but they failed, thus, work schedule could not be issued. Moreover , the submission of performance guarantee itself constitutes the acceptance of offer. As the performance guarantee was furnished within time on 15.05.2018, thus, the learned High Court has rightly accepted the writ petition. While relying upon the cases reported as Paragon Constructions (Pvt.) Limited v. Azad Govt. and others [2011 CLC 469], Miss Uzma Ishaque v. Azad Jammu and Kashmir Nomination Board and others [PLD 1986 AJK 112], Abid Hussain Jafri v. Azad Government and others 1998 PLC (C.S.) 141 and Azad Govt. and others v. Muhammad Siddique Khan and others PLD 2017 SC(AJ&K) 18 it has been submitted that this appeal is liable to be dismissed.
6. We have heard the learned counsel for the parties and gone through the record made available. Between the parties, most of the facts from calling tender quotation to issuance of letter of accep tance are admitted between the parties. The controversial point is whether the bidder has complied with conditions mentioned in the bid acceptance letter dated 03.05.2018 or not? It will be useful to reproduce here the relevant part of letter dated 03.05.2018, which reads as follows:- " You are hereby advised to proceed for execution of the said work in accordance with the contract agreement and furnish the performance guaranty of 5% amounting to Rs.59,69,203/- (Rupees Fifty Nine Lac Sixty Nine thousands and Two Hundred Three only) in the form of CDR within Fifteen days positively . Otherwise, as per decision of the DPC, your bid shall be stand cancelled.
The formal terms and conditions including detail of supply order shall be determined/ issued after getting CDR and the acceptance of this letter from your Firm.
You are also directed to submit the work schedule to this office within Five days and sign the contract agreement for further proceeding; please."
Although subsequently , a corrigendum was also issued on 07.05.2018 but it does not make any difference because through this corrigendum only the words "in the form of CDR" were omitted and all the other conditions remained unchanged including the conditions of furnishing the performance guarantee within 15 days, work schedule within 5 days and signing the contract.
7. The bid acceptance letter dated 03.05.2018 required furnishing of performance guarantee within 15 days.
According to respondent's own relied and produced document, available as anne xure "PJ" on the file of the High Court, he himself averred that:- "Performance guarantee was provided to the department on 21.05.2018 (within 15 days of issuance of revised acceptance letter issued vide No.3069-71 dated 07.05.2018."
According to the celebrated principle of law, the admitted facts need not to be proved. Respondent-bidder himself averred that he provided the performance guarantee on 21.05.2018. Now the question arises whether the same has been furnished within time stipulated in the bid acceptance letter or not? The bid acceptance letter issued on 03.05.2018 required the furnishing of performance guarantee within 15 days which means on or before 18th of May, 2018, whereas, according to respondent's own averment he provided the performance guarantee on 21.05.2018, after expiry of the stipulated time. He has also misconceived that the time will be computed from issuance of corrigendum dated 07.05.2018. As hereinabove mentioned that through this corrigendum only the words "in the form of CDR" have been omitted and the other conditions remained unchanged, thus, the time will be computed from 03.05.2018 and not from 07.05.2018. The findings of the High Court on this point appear to be inconsistent with the record, hence, not maintainable.
8. Same like, the respondent also miserably failed to fulfill the other condition of submitting the work schedule within 5 days. It is lame excuse that the submission of performance guarantee itself amounts to acceptance. The other reason that the appellants were time and again contacted but they failed to issue work order , hence, work schedule could not be submitted within stipulated time; also amounts to admission of non-compliance of the condition. According to the procedure and process there was no requirement of issuance of work order rather after fulfilling the conditions of bid acceptance letter the bidder has to sign the agreement and for signing the agreement furnishing of work schedule is pre-condition. As the respondent/bidder also failed to comply with the second condition of furnishing the work schedule, thus, in this state of affairs, the appellants were justified in cancellation of the bid acceptance letter . However , the other reason mentioned in the cancellati on order that the rate was 36% higher than the cost approved in PC has no substance because after due process and evaluation the respondent has been declared lowest bidder and now the dispute of higher bid cannot be raised.
9. Although, the parties have not raised this point in the written arguments but in our considered view for redressal of such grievance under rule 48 of the AJ&K Public Procurement Rules, 2017, the alternate remedy is provided. In our considered view in such like matters for expeditious and effective disposal, the bidder before approaching the Court must have approached the Committee constituted under the referred Rule.
10. For the above stated reasons, we are constrained to accept this appeal, set-a side the impugned judgment of the High Court dated 24.1 1.2018 and dismiss the writ petition filed by the respondent.
This appeal stands accepted with no order as to costs.