JAMAL KHAN MANDOKHAIL, CJ.---- Facts in brief are that the Government of Balochistan, Irrigation Department (respondent No.1) invited applications for pre-qualification of constructors in respec t of a water storage dam project at Winder , District Lasbella, Balochistan, approximately amounting to Rs.12 Billion. The respondent No.1 has framed a pre-qualification document, containing qualification criteria. The petitioners in a capacity of Constructors Associatic of Pakistan, feeling aggrieved from the qualification criteria, filed this petition.
2. Learned counsel for the petitioners stated that the criteria notified by the respondent No.1 is contrary to the criteria laid down by the Pakistan Engineering Council (PEC). They stated that the criteria for qualification of the constructors fixed by the Department, is a sort of barrier for most of the reputed constructors / firms, just to accommodate its favourite. According to them, limiting the constructors qualification only to the extent of experience in construction of dams, completed over last 10 years, is unjust, hence is illegal. They added that the qualification criteria fixed by the respondent No.1 will result in preventing some of the renowned No Limit constructors, enlisted with the PEC, including the one, which at present is doing the construction work of "Mohmand Dam", amounting to billions of dollars and another company , which has been awarded the work of Diyamir Bhasha Dam. According to the learned counsel, the .respondent No.1 is misinterpreting the words "projects of similar nature and complexity" mention ed in the pre-qualification document, on the basis of which, most of the qualified constructors will be deprived from participating into the bid proceedings, which is not only against their Constitutional right, but will also result into loss to the Government's exchequer , because of less competition amongst the limited constructors.
3. Learned AG assisted by the Chief Engineers, opposed the contention of the learned counsel for the petitioners and stated that the process for pre-qualification of the constructors' has not yet been finalized, therefore, the petition is premature. According to him, after completion of the process of pre-qualification, if any person is aggrieved from the decision of the procuring agency , he may approach the proper forum, as provided by the Balochistan Public Procurement Authority Rules (BPPRA) 2014, therefore, at this stage, the petition is not maintainable. Learned AG further stated that the standard procedure for the pre-qualification of constructors is in accordance with the guidance of the Pakistan Engineering Council and the Planning Commission of Pakistan respectively , as such, the employee and the employer both are bound to follow the same, therefore, the petitioners have no right to raise objections. He stated that because of nature, complexity and size of the project, the Department has decided to shortlist those qualified constructors, who have the capacity and experience in doing the similar nature of works. The learned AG added that the purpose of pre-qualification is to judge the financial soundness, experience, personal capabilities and equipment capabilities of the constructors, before awarding the work of this mega project, therefore, it is necessary for the constructors to have done similar nature of work, entitling it to participate in the bid proceedings.
4. Argument heard and the record perused. The Pakistan Engineering Council (PEC) is a statutory body created under the Pakistan Engineering Council Act, 1975 (the Act) to regulate the Engineering profession. The function of the PEC is to license Engineers, Constructors and Operators in entire disciplines to competently and professionally promote and uphold the standards. The Governing Body of the Pakistan Engineering Council (PEC) in exercise of powers conferred upon it under section 25 of the Pakistan Engineering Council Act, 1975 (the Act), made by-laws namely "the Construction and Operation of Engineering works By-Laws, 1987" (the By-Laws) for carrying out the purposes of the Act. Sub-clause (3) of Clause (7) of the By-Laws provides method of selection of a constructor or operator for a particular project, which is reproduce herein below: "(3) The client or employer shall adopt an equitable method of selection of a constr uctor or operator for a particular project and will ensure that the following basic requirements are met namely:
(a) An engineering work falling under a certain category must be entrusted only to those constructors or operators who are licensed by the council in acco rdance with these by-laws, either in the same category or in a higher category .
(b) A uniform system of credit points for the purpose of evaluation of the applican t's capabilities in the respect of vital elements of applicant's organization and capacity to perform shall be establis hed before tenders or proposals are called from prospective bidders. The various vital elements to be covered are:
(i) net worth of the applicant as on the date of application.
(ii) current ability to obtain finances and bonds (i.e. total ability less existing commitments).
(iii) current availability of applicant's cons truction equipment or tools required for the project (total equipment and tools owned as well as equipment irrevocably committed to be leased to the applicant on demand less current commitment and the period of their commitment).
(iv) professional experience of construction or operation of the type of proposed project, including professional personnel of required experience in full time employment of the applicant less the personnel committed on projects in hand.
(v) previous performances of the applicant on other projects and similar projects.
(vi) current licence issued by the Council; and
(vii) any other relevant factors.
(c) A provision is made in the proposed contract with the constructor or operator for the settlement of any difference by arbitration under the Arbitration Act, 1940, before recourse to any other legal action.
(d) Selection is done through Open and fair competition and no preference is given to an contractor or operator for reason of this being in the public or private sector".
Pursuant to the above provisions of the By-Laws, the client or the employer may prescribe his own requirement for pre-qualification of constructors or operators, particularly , to assess the financial soundness, plant and equipment capability , previous experience, business management capabilities and specific expertise, which in the opinion of a client or employer is essential for the execution of the work, with an aim to eliminate constructors, that are not suitably qualified to perform high value contracts and to encourage realistic bids by the bidders. In this behalf, the PEC has issued a standard procedure as guidelines for employers to avoid confusion, while conducting the pre- qualification proceedings.
5. The respondent No.1 intends to undertake the work of construction of dam. Before entering into bidding process, it has invited application for pre-qualification of the constructors / operators. The standard procedure for pre- qualification of the constructors and operators has been prepared by the respondent No.1 in accordance with the.
PEC guidelines, which are reproduced herein-below: "3.2.2 . Credit Marks for experience shall be awarded on the basis of following qualifications: Sr.No. Description Maximum Points
(i) Projects of similar nature and complexity completed over latest 10 years15
(ii) Projects of similar nature and complexity in hand10
(iii) Experience of Works related to project but not basic part5
(iv) Status of cilistment with Government Organizations and other agencies.5 Total 35 Sr.
No.Description Maximum Points
(i) Available Bank Credit Line 5
(ii) Working Capital in last 3 years. 5
(iii) Registration with Income T ax Department 5
(iv) Litigation History` where decision went against the Firm5
(v) Blacklisting from any Agency
(vi) Valid Licence for other related items of Work5 Total
6. The main dispute between the parties is upon the interpretation of the words "project of similar nature and complexity" mentioned as one of the criteria for pre-qualification of the constructors or operators. According to the respondent No.1, similar nature of work means only the work of dam, completed by the constructors during the last ten years, whereas the petitioners contend that these words do not limit the contractor only to the extent of having experience of constructing dams. The word "similar" means, having a resemblance in appearance, character , or quality; without being identical. The Cambridge Dictionary defines the word "similar" as "looking or being or being almost alike, but not exactly the same. Similarly , the word "nature" has been defin ed in Cambridge Dictionary as, "the type or main characteristic of something". Hence basic or inherent features, characteristics or qualities of something describes its nature". So far as the word "complexity" is concerned, it has also been defined in the Cambridge Dictionary as, "the state of having many parts, being difficult to understand". Thus, a project of similar nature and complexity means, the project having resemblance in appearance, basic features, characteristics, qualities and complication, similar to the project to be executed, but not exactly the same. Basically , the eligibility criteria for pre-qualification is based upon the guidelines of the PEC. Since the works of dams, water related structures, reservoirs, aqueducts, treatm ent plants, pipe lying work etc. as well as, Irrigation and Flood Control System, description whereof is Earth Work / dredging in canal, river and offshore, are being similar type of work, therefore, the same have jointly been categorized and placed in one of the disciplines and have been assigned tire- Code No.CE04. The licence issued to the constructors or operator contains the type of works that the constructors or operators can undertake, with specific Code(s).
7. If a constructor has completed a project in respect of which the skill, effort and responsibility are similar and performed under the similar working condition, as required for the project to be executed such experience can be taken into consideration, while considering the pre-qualification proceeding, provided that the project already completed and the project intended to be executed, are of same discipline and falling under the same Code. The required criteria for the project in, question is not only illogical, and non-sensical, but is also against the basic aim and object of the pre-qualification. It will not only deprive constructor(s) from participating in the bid proceedings of the current project, but will also disqualify those in future, who is / are otherwise legally entitled to perform similar nature of works. This restriction is a negation of settled right of the eligible constructors and operators to do business, as guaranteed by the Constitution, consequently , it will result into less real competition, which will cause loss to the public exchequer as well.
8. Even otherwise, if an applicant fails to fulfill one of the' conditions of any category of criteria, he shall not be disqualified, merely because he did not fulfill the specific component, rather the marks fixed for the said item shall not be assigned to it; as per the' standard procedure for pre-qualification. The applicant must meet the' minimum criteria and shall obtain 50% score in each category to qualify for participation in the bid proceeding, therefore, in case, the constructor or operator secure marks fixed for rest of the items, that should be calculated and if it is able to secure 50% or more marks, it should be considered accordingly . As far as the required period of experience regarding execution of project of similar nature in the last 10 years is concerned, the executing authority empowered to relax the said criteria by extending time to provide an opportunity to the maximum number of qualified constructors and operators, so as to encourage healthy competition. The respondent No.1 has misinterpreted the words "project of similar nature", which, is an illegality .
Thus, in view of above, the petition is allowed. The respondent No.1 should follow the interpretation of the words "the project of similar nature and complexity", in a manner , discussed hereinabove and in accordance with the PEC By-Laws, while assessing the qualifications of the constructors and operators, who submitted their applications for pre-qualification.