ALI BAQAR NAJAFI, J.---- Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner has challenged the letter dated 08.11.201 9 while seeking a direction to respondent No.2/Project Director to conduct a fresh technical evaluation of the petitioner's bid, convey the reason for its rejection and then provide him an opportunity to satisfy about any specific objection raised in the bid submitted by the petitioner on 07.05.201 9, with a further prayer to carry out fresh technical evaluation of the bid and revise it in view of the Rules 37 and 38(2)(b) of the Punjab Procurement Rules, 2014 and meanwhile, restrain them from taking any further step in the process including opening of financial bid and awarding of contract to any of the bidders and to examine in detail the reasons for purported qualification of the petitioner .
2. Brief facts giving rise to the filing of this constitutional petition are that petitioner is a registered private company with the name and style of Messrs LAC (Pvt.) Ltd. having experience in industry of construction and infrastructure having specialization in dams, highways, flyover , bridges, power and energy buildings. On 15.01.2019, an advertisement was published in the newspaper by respondent No.2 declaring that Asian Development Bank (ADB) had funded the Jalalpur Irrigation Project, therefore, bids were invited by him for the construction of Main Canal (RD 52+000 to RD 225+500). The invitations of bids were published in public on 17.01.2019 with the deadline of 12.03.2019, for the bids, later extended to 07.05.2019. The para 4 of the advertisement inviting the bids is relevant, therefore, reproduced as under:- "4. Only eligible Bidders with the following key qualifications should participate in this bidding: Participation in at least two (2) contracts that have been successfully or substantia lly completed within the last ten
(10) years and that are similar to the proposed works, where the value of the Bidder's participation exceeds USD 65.6 million in the second contract.
Construction experience in key activitie s such as earthwork, reinforced concre te and concrete canal lining as detailed in the bidding documents. Minimum average annual construction turnover of USD 30.8 million calculated as total certified payments received for contracts in progress or completed, within the last three (3) years. Having sound financial position to successfully meet the monthly cash flow requirement equal or more than the amount given below: USD 5.1 million. As a minimum, the Bidder's net worth calculated as the deference between total assets and total liabilities should be positive."
3. It was stipulated in the invitation that bid process was to be conducted in the manner provided in the following paragraph No.7, which is also reproduced as under:-- "7. Technical bids will be opened immediately in the presence of Bidder's representatives who choose to attend, whereas the Finane ial Bids shall remain sealed and unopened and shall be place d locked. The Financial Bids of only Technically Responsive and Qualified Bidders shall be opened after Technic al Bid Evaluation, whereas, the Financial Bids of those Bidders whose Technical Bids are not responsible and qualified shall be returned unopened after the contract is awarded. "
On 02.04.2019, petitioner requested respondent No.2 to provide bidding documents of the project based on the well accepted bidding standard set by ADB (in December , 2016) for the procurement of work. Bidding documents were issued under clause 15.4 which relates to the conversion rates of currencies, reproduced as under:- "The rates of exchange to be used by the Bidder for currency conversion during bid preparation shall be the selling rates for similar transactions prevailing on the date 28 days prior to the deadline for submission of bids published by the source specified in the BDS. If exchange rates are not so published for certain currencies, the Bidder shall state the rates used and the source. Bidders should note that for the purpose of payments, the exchange rates confirmed by the source specified in the BDS as the selling rates prevailing 28 days prior to the deadline for submission of Bids shall apply for the duration of the Contract so that no currency exchange risk is borne by the Bidder ."
The case of the petitioner is that he formed a joint venture with respondent No.4/ Eren Insaat Tic Ve San. Ltd., a renowned entity of Turkey in the field of construction and infrastructure development through an agreement dated 30.04.2019. The submission of bid by the joint venture on 07.11.2019 included both technical and financial bid in accordance with the set requirement. He had filled up form Exh.P-1 pointing out the prior experience by giving the details of construction of Mardin Ceylanpinar Plains Irrigation Lower Mardin Main Channel in US$65,76,422/- and also the details for conversion, rehabilit ation and upgrading of branch canal and distributary system covering Sahiwal Division (Contract No.LBDC/ICB- 05 for US$ 21.37 million) called Sahiwal Project. It is pertinent to mention that in the offer of Mardin project, the contract was awarded to the petitioner company (JV) with respect to foreign currency exchange rate applicable on 28.08.2008 and as such, if determined on this principle, the financial bid of the petitioner was on 25.09.2019 on US $ 96.2734/- million. However , if already approved principle in the Sahiwal project is applied, it would be US $ 87.3193/- Significantly , seven (7) companies submitted their bids and participated in the bidding process includ ing respondent No.5/Descon Engineering Ltd., China Gezhouba Group Company Ltd. / respondent No.6 and Ghulam Rasool and Company/respondent No.7. On 20.05.2019, respondent No.2 asked different queries from the petitioner in relation to the currency conversion rates. On 28.05.2019, a clarification was sought from the petitione r and on 31.05.2019 respondent No.2 sought its definite compliance from the petitioner . On 10.06.2019, petitioner responded by replying that the calculation on the currency conversion should be carried out in accordance with the norms in Turkey but ever-since, the respondent did not communicate any reply . On 23.09.2019, a letter was addressed to respondent No.2, copy of which has been forwarded to ADB, explaining that earlier two projects i.e. Mardin Project and Sahiwal Project were completed in accordance with eligibility set out in the invitation for bids, therefore, same principle be applied now. However , on 08.11.2019 impugned order was passed conveying that bid offered by the petitioner has been substantially non-responsive to the requirements of bidding document, but without specifying any reason or spelling out the comparative responsiveness of the other competitors/bidders, i.e. respondents Nos. 5 and 7, hence this writ petition.
4. Learned counsel for the petitioner submits that respondent No.2 has not provided any technical evaluation report to the 'petitioner as bidder and that the impugned letter dated 08.11.2019 is without any reason. Adds that the respondent has not constituted any Grievance Redressal Committee under Rule 67 of the Punjab Procurement Rules, 2014 as the project is governed by the Punjab Procurement Regulatory Authority , 2009. Further adds that respondent No.2 was required to inform the petitioner about the inadequacy in the bid documents. Contends respondent has violated the principle of natural justice as the benefit of Rule 38 of the Punjab Procurement Rules, 2014 for submitting of the revise technical proposal along with financial proposal was not granted to the petitioner .
Further contends that Rule 27 of the Punjab Procurement Rules, 2014 was also violated and, therefore, prays for the claimed relief.
5. In the report and parawise comments submitted by respondents Nos. 1 and 2, Government of Punjab and the Project Director , respectively , it is stated that construction of Jalalpur Canal and allied works is to be taken up through three civil works contracts under International Contract Bidding (ICB) procedure as per Project Administration Memorandum (PAM) issued by ADB. The bid documents were procured in accordance with the standard bidding for the contract JIP/WKS/ICB-P-2 invited on one envelope basis. It was opened on 07.05.2019 by the Bid Opening and Evaluation Review Committee (BO and ERC) constituted by the Secretary Irrigation when eight (8) bids were received for the contract including the one from M/S EREN-LAC Joint Venture (JV). The Technical Bid Evaluation Report (TBER) prepared by PIC was sent to Review Committee for BO and ERC. On 08.11.2019, NOC letter was issued declaring the technical bid of 6 bidders including M/S EREN-LAC as non- responsive to the qualification and evaluation criteria of the bidding documents. They all were invited through letter dated 08.11.2019 while the two technically responsive bidders were informed about opening of their price bids on 14.11.2019 through a separate letter . According to the respondent, Article 1(t) read with schedule 4 of the Loan Agreement, stipulates all procurements are to be made according to the Guidelines provided by the ADB, (2015) and as per paragraph 1.12 thereof, any procurement, if made, under Loan Financing Project against the said guidelines will be declared as mis-procurement and the ADB, would normally cancel that portion of the financing.
6. On preliminary objections, the maintainability of the writ petition was questioned since Messrs LAC (Pvt.) Ltd was not the sole bidder of the contract as the bid was made by the joint venture with Messrs ERENLAC and that the bidding documents were issued to the said joint venture and not to the petitioner alone. Adds that bid validity period had expired on 05.09.2019 as it was not extended. Further adds that under rule 5 of the Punjab Procurement Rules, 2014 in case of conflict with any commitment of the government, the obligations arising out of the international agreement would prevail, therefore, the disclosure of the ground of rejection of technical bid at this stage before opening of financial bid is against the procurement procedure of the financing institution (ADB). The said clause 26.1 (Confidentiality of bid) of instruction to bidder (ITB) the process of evaluation of bid was confidential which is reproduced as under: "Information relating to the examination, evaluation, comparison, and post-qualification of Bids and recommendation of contract award, shall not be disclosed to Bidders or any other person not officially concerned with such process until information on the Contract award is communicated to all Bidders."
Accordingly , no bidder was informed about the reasons for being non-responsive in the technical evaluation and, therefore, notification was issued to six unsuccessful bidders. Under form EP-1 of Section 4 total contract amount was required to be mentioned in US Dolla rs without any exchange rate with the Pakistan Local Currency . Besides, there were four qualification criteria, i.e. (i) eligibility , (ii) pending litigation and arbitration, (iii) financial situation and
(iv) construction experience. That is the reasons why on 20.05.2019 respondent No.2 asked the bidders to explain conversion rates dated 30.12.2017 for construction of Mardin Ceylanpinar plains irrigation lower main channel section 3 under which contract was awarded on 23.12.2008 and was already completed by 07.05.2019. Adds that in case of confusion, petitioner could get a clarification in the pre-bid meeting with the bidders held by respondent No.2 on 06.02.2019. In second contract relating to Sahiwal, no such clarification was sought. It was, however , admitted by the petitioner that responde nt No.2 sought the extension of bid security and also bid validity till 06.01.2020 to which the security was extended but the validity of the bid was not extended till date and, therefore, under clause 18.2 (period of validity of bids) of ITB, the bid had already become invalid under clause 26.1, the reasons for being non-responsive could not be communicated to the petitioner on the ground of confidentiality .
Under clause 15 of the guidelines of bidders, after notification of the award if a bidder wishes to ascertain the grounds on which it was rejected, he is entitled to an explanation in the meeting with ADB which he may do by writing to the Director General (Operations) to arrange a meeting with the relevant staf f.
7. Learned counsel for respondents Nos. 5 and 6 while placing reliance upon Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others (PLD 2017 Supreme Court 83) argue that Rule 38 does not apply to the petitioner . Adds that contractual obligations cannot be enforced under Article 199 of the Constitution and that the penalty would be paid by the Government of Punjab in case of non-compliance of the contract and that JV Partner Messrs EREN had not authorized the petitioner to file the petition, therefore, it should be dismissed on this sole ground.
8. Today , respondent No.2/Director General has placed on record additional documents according to which the bid validity period was 120 days i.e. up to 4.09.2019, therefore, the petitioner was requested to extend bid validity up to 06.01.2020 and extend the bid security for 28 days beyond bid validity period through letter dated 19.08.2019 but Messrs EREN-LAC did not extend the validity period, therefore, after the said expiry of the validity period i.e. 04.09.2019 Messrs EREN-LAC has become non-responsive. It was also admitted that for construction experience, sub-clause 2.4 of Qualification Criteria was applicable according to the rate of exchange to be issued to calculate the value of the contract date on the day of contract signing and in the referred earlier contract agreement the signing date was 12.10.2012. It was also stated that after preparation of the bid to be submitted by the bidder as per sub-clause 15.4 after instruction of bidders, the therefore, calculated value of US $ 21.37 million by the petitioner was beyond the period of 28 days, therefore, incorrect. The LAC being IV partner had only to meet the qualification criteria and resultantly bid made by the Messrs EREN-LAC had beco me non-responsive in technical bid evaluation.
9. After reading these additional documents, at this stage, learned counsel for the petitioner in rebuttal has placed on record the written statement and submits that general guidelines cannot supersede the specific guidelines prescribed for the bidding document and that exchange rate would prevail on the day according to the said rules.
10. Arguments head File perused.
11. Admittedly , the petitioner is one Joint Venture (JV) Partner with Messrs EREN-LAC, and bid documents were received by IV and the bid was submitted by JV, whereas its validity period was 120 days; already expired on 07.09.2019, therefore, the offer remained non-responsive. Secondly , as per the understanding the rate of exchange of dollar was to be calculated on the date of signing of the contract and not the date of offer since it was experiencing unpredictable fluctuation in increase. Thirdly , the general and specif ic guidelines are required to be followed in the internationally funded projects as mandatory to ensure fairness. Fourthly , the bid security period (under clause 27) was extended to 06.01.2020 and not the hid validity period (under clause 28), therefore, the offer had become invalid under clauses 26 and 18.2 and that any violation of the guidel ines might be considered a mis- procurement. However , its reasons could be communicated under clause 15 of the' said guidelines in the meeting with Asian Development Bank (ADB) unde r clause 15 after the notification is issued as also stipulated under Rule 5 of Punjab Procurement Rules, 2014. Fifthly , under Form Exh.P1, the total contract amount was required to be mentioned in US Dollars without any exchange rate with Pakistani Local Currency . Sixthly , there were four pre- qualifications criteria; i.e. eligibility , pending litigation, financial status and construction experience and any bid was required to be assessed on its basis. Finally , since the reasons of the bid being non-responsive have been conveyed to the petitioner during the present proceedings, therefore, the petitioner , if so advised, may avail the remedy in accordance with law as the disputed questions of facts cannot be resolved in the constitutional jurisdiction of this Court.
12. In this view of the matter , this writ petition has been found meritless and is, therefore, dismissed .