SAYYED MAZAHAR ALI AKHT AR NAQVI, J.----Through this constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, following prayer has been made:- .......In view of the above, it is most respectfully prayed that this Honourable Lahore High Court may be pleased to:- i. Declare that formation of the statutory forum of Grievances Redressal Committee under Rules 67 of Punjab Procurement Rules, 2014 is mandatory regardless of source of funding of the Jalalpur Irrigation Project; ii. Declare that the procurement process as adopted in the Jalalpur Irrigation Projection is violative of Article 10-A and rules of natural justice. iii. Set aside the instant procurement process in relation to the Jalalpur Irrigation. Project: and iv. Direct Respondents Nos. 1, 2 and 3 to ensure Punjab Procurement Rules, 2014 are implemented in their true letter and spirit in any future procurements intended on the Jalalpur Irrigation Project: v. Direct relevant investigation agency such as FIA or NAB to carry out investigation against Project Director of Respondent No. 1 for attempting to procure the JIP Project against the dictates of Punjab Procurement Rules, 2014: and vi. Declare that any resultant contract awarded to respondent No.6 is done under mis-procurement, is a nullity in the eyes of law and therefore is void ab initio.
Any other relief that this honourable Lahore High Court deems fit and appropriate may graciously be awarded in favour of the petitioner..."
2. At the .very outset, it has been contended by learned counsel for the petitioner that petitioner is a private limited company incorporated under the Companies Ordinance, 1984 and is duly licensed by the Pakistan Engineering Council to provide construction services in large scale public infrastructure projects. Further contends the Chief Secretary Punjab issued circular dated 18.10.2017 wherein he has directed all the procuring agencies, without exceptions, for the constitution of indepe ndent and fully authorized Grievance Redressal Committee. It is stated that Punjab Irrigation Department/ respondent No.1 vide advertisement invited bids from interested contractors for construction of Main Canal Intake Structu re, Main Canal including Distribution System and Flood Carrier Channels, Cross Drainage Structures, Road Bridges etc. JIP/ WKS/ ICB (Jalalpur Irrigation Project) and total eight parties including the petitioner showed interest in the procurement process and filed bid on 22nd November , 2018 and the Punjab Irrigation Department / respondent No.1 sought certain clarifications from the petitioner which were responded and in view of inordinate delay in completing the evaluation of Technical Bids, the petitioner immediately informed the respondents Nos.1 and 2 vide letter dated 16th May, 2019 and clearly pointed out that the Grievances Redressal Committee had not been constituted. Further contends that the petitioner did not receive any formal reply and the Grievance Redressal Committee was not appointed and in order to protect its statutory right to having grievance adjudicated upon by a Grieva nce Redressal Committee, the petitioner again vide letter dated 30th August 2019, sought constitution of a high power , independent Grievance Redres sal Committee but no response has been received as yet. It is submitted that procurement process was delayed for eleven months and vide letter dated 30.08.2019, the petitioner along with other five bidders were proposed to be disqualified for not fulfilling the requirement of bidding documents and the petitioner filed Writ Petition No. 49161 of 2019, and learned Single Bench of this Court vide order dated 05.09.2019 passed a direction to provide opportunity of being heard to the petitioner and communicate the reasons for disqualification, internally if these are to be kept secret and reasonable time be also given to the petitioner to meet the objections before proceeding further under the notice and the Project Director undertook that bid shall not be finalized and the writ petition was disposed of. Further contends that the petitioner was summoned vide notice dated 6th September , 2019 and he was verbally informed for disqualification on three reasons and then petitioner tried to raise its objections before the Grievance Redressal Committee by formally lodging a detailed written complaint in the form of Grievance Petition under Rule 67(2) of Punjab Procurement Rules, 2014 which was filed in the office of Project Director/respondent No.1 however , it was dismissed on the same date and refused to appoint the legal mandated Grievance Redressal Committee in light of instruction of Chief Secretary . Learned counsel seeks indulgence of the Court in such circumstances.
3. On the other hand, learned Law Officer assisted by learned counsel for respondent No.6 submits that in order to alleviate poverty and boost up agricultural production in the province, the Government of Punjab launched a project for, construction of Jalalpur Canal with the financial support of Asian Development Bank and feasibility study of the project was carried out in 2015 under Asian Development Bank Technical Assistance Grant and detailed engineering design was carried out by the Consultants Messrs NESP AK-ICS(JV) and the project was approved and loan agreement was signed between Government of Pakistan and Asian Development Bank for US$274.63 million. Further contends that at the time of bid opening, eight bids were received for the contract. JIP/ WKS/ ICB/ P-1 including the petitioner and Technica l Bid Evaluation Report (TBER) was sent to Asian Development Bank prepared by Project Implementation Consultants (PIC) and Asian Development Bank issued no objection letter to the Technical Bid Evaluation Report (TBER) declaring the technical bid of six bidders including the petitioner as non-responsive to the qualification and evaluation criteria of the bidding document and all the six non-responsive bidders were notified to this effect vide Letter No.30.08.2019 while the two technical responsive bidders were informed about opening of their Price Bids through separate letter . Further contend s that after filing of Writ Petition No. 49161 of 2019, a team of six persons representing the petitioner attended the office of Project Management Office (PMO) Canal and were communicated the reasons of non-responsiveness of their technical bid verbally and the petitioner failed to fulfill the qualification and evaluation criteria. It is further stated that the circular dated 18.10.2017 issued by Chief Secretary Punjab for constitution of independent and fully authorized Grievance Redress Committee is applicable to procurements made under the Punjab Procurement Rules, 2014, hence, the petition in hand being meritless deserves to be dismissed.
4. Arguments heard and record available on file perused.
5. Perusal of the record reveals that the procurement of civil works Contract No JIP/ WKS/ ICB-P was initiated as per Procurement Guidelines of 'Asian Development Bank and Project Administration Memorandum (PAM) issued by the Asian Development Bank for Jalalpur Irrigation Project (JIP) and bidding documents were prepared as per Asian Development Bank's Standard Bidding Documents for large works, Two Envelope Bidding Procedure. It is noticed that total eight bids were received by the Bid Opening and Evaluation Review Committee (BO&ERC) constituted by the Secretary Irrigation Department and technical Bids were opened while Price Bids were kept sealed and Technical Bid Evaluation Report (TBER) prepared by Project. Implementation Consultants(PIC) reviewed by Bid Opening and Evaluation Review Committee (BO&ERC) was submitted to Asian Development Bank for issuing no objection certificate and finally Asian Development Bank issued no objection letter dated 29.08.2019 and directed to process further while inviting Messrs Ghulam Rasool and Company (Pvt.) Ltd. (bidder 2) and Messrs Descon Engineering (Pvt.) Ltd. (bidder 5) for the opening of the price bids and the Technical Bids submitted by the petitioner and five others were evaluated as substantially non-responsive to the requirements of the Bidding Document and the petitioner and others were directed to collect un-opened/ sealed Price Bids.
6. So far as constitution of Grievance Redressal Committee applicable to procur ements made under the Punjab Procurement Rules, 2014 is concerned, it is noticed that the Jalalpur Irrigation Project was launched with the financial support of Asian Development Bank for US$274.63 million and construction of Jalalpur Canal and allied work is being taken up through three civil works contracts under International Contract Bidding (ICB) procedure as per Project Administration Memorandum (PAM) issued by Asian Development Bank wherein it is contained that all procurement actions shall be subject to prior review of Asian Development Bank. The bidding documents for the contracts were prepared as per Asian Development Bank's Standard Bidding Document and were invited on the Single-Stage-T wo-in-One-Envelop basis. As per Schedule 4 read with Article 1(t) of the Loan Agreement, all procurements of goods and works for the Jalalpur Irrigation Project are to be made according to the Asian Development's Procurement Guidelines, 2015 and as per paragraph 1.12 of Asian Development Bank's Procurement Guidelines, 2015, any procurement under the loan financed project which is not carried out as per guidelines, will be declared as mis-procurement and normally the Asian Development Bank will cancel that portion of the financing which has been allocated to the goods and works that have been mis-procured. Hence, when such financial institution grant such huge loans they always insist that any project for which loan has been sanctioned must be carried out.. in accordance with the specification and within the prescribed time and the procedure for granting the award must be duly adhered to. It is noticed that compliance with such Guidelines is contemplated by law of Pakistan, more particular , Rule 5 of the Punjab Procurement Rules, 2014, which is reproduced hereunder for ease of reference:-
5. International Commitments of the Government.- If any provision of these rules is in conflict with any obligation or commitment of the Government arising out of any international agreement with a state or states, or any international financial institution, the provision of such international agreement, to the extent of conflict, shall prevail.
It is noticed that constitution of a Grievance Redressal Committee under Rule 67(2) of Punjab Procurement Rules, 2014 shall be in conflict with Asian Develo pment Bank's Procurement Guidelines, 2015 and the rule 5 of the Punjab Procurement Rules, 2014 which stipulates that if any provision of Punjab Procurement Rules, 2014 is in conflict with any obligation or commitment of the Government arising out of an international agreement with a State or States, or any international financial institution, the provision of such internation al agreement, to the extent of conflict shall prevail. If the procurement process for Jalalpur Irrigation Project funded by Asian Development Bank is carried out under procurement laws of Federal or Provincial Government, then it is against the Asian Development Bank's Procurement Guide lines and provisions of Loan Agreement with Asian Development Bank and also against the rule 5 of Punjab Procurement Rules, 2014. As per Asian Development Bank's Procurement Guideline, the unsuccessful bidders would be given debriefing to explain the reason of his non-responsiveness at the time of award of contract and if till unsatisfied, the bidder may then approach Asian Development Bank in this regard. The constitution of Grievance Redressal Committee is not covered under Procurement Guideline of Asian Development Bank and rule 5 of Punjab Procurement Rules, 2014 support the process of procurement followed under foreign financial project. As per paragraph 2.65 of Procurement Guideline of Asian Development Bank, any bidder who wishes to ascertain The grounds on which its bid was not selected, should request an explanation from the borrower . The relevant portion is reproduced as under_ Debriefing 2.65 In the publication of contract award referred to in paragraph 2.60 the borrower shall specify that any bidder who wishes to ascertain the grounds on which its bid was not selected, should request an explanation from the borrower . The borrower shall promptly provide an explanation' of why such bid was not selected, either in writing and/ or in a debriefing meeting, at the option of the borrower . The requesting bidder shall bear all the costs of attending such a debriefing The clause 15 of the Procurement Guideline further explain as under: Debriefing
15. As stated in paragraph 2.65, if after notification of award, a bidder wishes to ascertain the grounds on which its bid was not selected, it should address its request to the borrower . If the bidder is not satisfied with the explanation given and wishes to seek a meeting with ADB, it may do so by writing the Director General, Operations Services and Financial Management Department, who will arrange a meeting at the appropriate level and with the relevant staff. In this discussion, only the bidder's bid can be discussed and not the bids of competitors.
Admittedly , loam: obtained from International Financial Institutions like the Asian Development Bank, came coupled with conditions, which included the mode and method of the award of contracts for the projects and the process of pre-qualifications of bidders. Compliance with and enforceability of such conditions was contemplated by Rule 5 of the Punjab Procurement Rules, 2014, therefore, the Asian Development' Procurem ent Guideline was enforceable.
Similar view has been taken in case titled "Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Author ity through Chairman WAPDA and 2 others" (PLD 2017 Supreme Court 83) wherein it is held as under:- "----R. 5---Guidelines for the Procurement of Goods, Works and Non- Consulting Services under the IBRD Loans and the IDA Credits Grants by World Bank Borrowers, Appendix-I, para. 2(a)---Hyd roelectric Power Project funded by an International. Financial Institution--Pre-qualification of interested contractors/ bidders---Right of International Financial Institution to request removal of a pre-qualified contractor/ bidder ---Scope---Funds for the Hydroelectric Power Project ("Project") had been raised through a finance agreement between the Government of Pakistan and International Development Association ("IDA"), an organization which was an integral part of the World Bank Group---Finance agreement provided that the bidding process with respect to selection of contractors for the Project would be conducted in accordance with the Guidelines for the "Procurement of Goods, Works and Non- Consulting Services under the IBRD Loans and the IDA Credits Grants by World Bank Borrowers" (the World Bank Guidelines)---Loans obtained from International Financial Institutions like the IDA, came coupled with conditionalities, which included the mode and method of the award of contracts for the projects and the process of pre-qualifications of bidders---Compliance with and enforceability of such conditionalities was contemplated by R.5 of the Public Procurement Rules, 2004, therefore, the 'World Bank Guidelines ' were enforceable---W ater and Power Development Authority (WAPDA) had included the name of the petition er-company in the list of pre- qualified bidders, however IDA intimated WAPDA to delete the name of the petitioner -company from the list, by exercising its right in terms of para.2(a) of Appen. I of the 'World Bank Guidelines ', which provided that IDA had a right or a privilege of making a reasonable request for the modification of or deletions from the list of pre-qualified contractors---Further the petitioner -company had not impleaded IDA as a party either before the High Court or in the present proceedings before the Supre me Court, therefore, the decision of the IDA and the conclusion drawn by it that the petitioner -company was disqualified and not entitled to pre-qualification, was not the subject matter of the lis before the High Court---Decision by WAPDA not to agitate the matter further with the IDA at the behest of the petitioner -company was a pragmatic commercial decision taken not to jeopardize the funding from the IDA and thereby putting the entire project at risk-- Constitutional petition filed by the petitioner -company before the High Court had been rightly dismissed---Petition for leave to appeal was dismissed accordingly ."
7. It is further noticed that this project relates to the welfare of the public at large and the project has already been inaugurated by the executive head of the country and any adverse order at this belated stage would certainly create frustration among the masses as it might delay in completion of project under the garb of technicality .
8. For the foregoing reasons, the petition assailed before this Court is devoid of any legal justification; hence, the same is dismissed being not sustainable in the eyes of law .