ABDUL HAMEED BALOCH, J.---- This Constitutional Petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") with the following prayers: "a. That the official respondents are legally under obligation to issue the work order on the contract awarded to petitioner through evaluation report. b. to restrain permanently the respondents not to carry out the process of second redressal committee constituted on 31.01.2020. c. The respondents be restrained from cancellation/retender of tender through PRQ No.529/17.09.2019 advertised on 18.09.2019. d. The respondents be directed to issue the work order immediately/early as per decision of the GRC grievance committee dated 08.1 1.2019 without delaying tactics.
OR Any other relief this Hon'ble Court deems fit and proper may kindly be awarded, in the interest of justice, fair play and equity ."
2. Briefly stated facts leading to file the instant petition are that a publication with caption of "Notice Inviting 'Fenders" was published in Daily Newspaper "Jang" Quetta dated 18.09.2019, whereby the respondent No.3 invited tenders from the contractors unde r the Balochistan Public Procurement Regulatory Rules, 2014 (B-PPRA Rules, 2014) for the following works: S.No. Name of W ork E/Cost
1. Construction of Black Top-Road from N-70 to Chipli Nasaran District Loralai. (TS163770E)16.000 M
2. Construction of Black Top Road from N-70 to Dilor Alizai District Loralai.32.000 M
3. Construction of Black Top Road from N-70 to Muslim Town District Loralai. (TS163773E)40.000 M That the petitioner while fulfilling the requisite formalities under the B-PPRA Rules 2014 applied for the work at Serial No.3 for construction of Black Top Road from N-70 to Muslim Town District Loralai (five kilometer), estimated cost 40 million; that the tenders were invited under sub-rule (3) of Rule 41 of the B-PPRA Rules, 2014, i.e. Single Stage Two Envelope Procedure, which was already fulfilled by the petitioner; that the petitioner submitted the challan through representative of respondent No.3 prescribed in the advertisement in the prescribed bank; that the petitioner submitted all the documents before the office concerned as required under the B-PPRA Rules, 2014, whereas no objection were raised; that the petitioner offered the estimated cost for the subject work @ Rs.3,95,63,397/- and thereafter when the tenders were opened in presence of Committee Members and Contractors, the rate offered by the petitioner being lowest rate was recommended for approval and as per Evaluation Report dated 12.10.2019, uploaded on the website of B-PPRA, the contract was awarded to the petitioner; that after the evaluation report the respondents were bound under the B-PPRA Rules 2014 to issue work order within the stipulated period but the same was delayed with one pretext and another pretext and on 16.10.2019 the respondents with mala fide intention and ulterior motive illegally cancelled the contract awarded to the petitioner without any notice and cogent reasons; that the petitioner being aggrieved of the act of the respondents, challenged the cancellation order before the Chairman Grievance Committee by filing an application, which was decided under the Rule 56 of B-PPRA Rules, 2014 with the following ef fect: A. That the Executive Engineer Roads Provincial B&R District Loralai has cancelled the said tenders without any valid/justified reason.
B. As the procuring Agency has already uploaded the Technical / Financial evaluated report on BPPRA website on 12.10.2019 therefore, cancellation orders dated 16.10.2019 may be withdrawn and the work shall be awarded to the lowest bidder in accordance with BPPRA Rules 56(3)(e).
That the respondent's contrary to the above, again constituted a Second Grievance Committee on 31.01.2020, which is against the guaranteed provision of B-PPRA Rules, 2014. The petitioner being aggrieved of the act of the respondents, filed the instant petition with the prayer as mentioned above.
3. Learned counsel for the petitioner contended that pursuant to the advertisement published in Daily Newspaper Sang, Quetta dated 18.09.2019 the respondents invited the tender from the contractor for construction of Black Top Road on 18.09.2019, whereupon the petitioner being contractor submitted his tender and being lowest bidder the contract was awarded to him but the respondents with mala fide intention and ulterior motive did not issue work order to him, which amounts to illegality and irregularity .
4. Conversely learned AAG stated that at the time of bidding process the license of the petitioner was expired and as per B-PPRA Rule 2014 the registration of petitioner with Balochistan Revenue Authority was inactive due to which the petitioner is not eligible to be awarded the above work.
5. We have heard the learned counsel for the petitioner as well as learned AAG and have perused the record with their able assistance. The perusal of record reveals that the respondent No.3 invited tender through Daily Jang Quetta dated 18.09.2019 for construction of referred Black Top Roads. The petitioner submitted bid for work mentioned at Serial No.3. The respondent No.3 received the documents of the petitioner without any objection. The respondents while following the B-PPRA Rule, 2014 commended the referred work for approval in favour of the petitioner on 07.10.2019. The procuring agency announced the evaluation report and uploaded the same on the authority's website as required under Rule 40 of the B-PPRA Rule, 2014 for acce pting or non-accepting of all or any bid. It would be appropriate to reproduce the relevant rule:
40. Announcement of evaluation reports. (1) Procuring Agencies shall announce and upload on authority's web the results of bid evaluation in the form of a report giving justification for at least three days prior to the award of procurement contract.
Provided that a copy of the evaluation report shall be provided to any bidder who may request for the same."
6. Since the petitioner was lowest bidder , therefore under Rule 43 of the B-PPRA Rule, 2014, the respondents will issue the work order to the petitioner within the stipulated period. As per Rule 56 of the B-PPRA, 2014 the procuring agency is bound to constitute a committee for redressal of the grievances of the bidder if arise during the bidding process. It would be necessary to reproduce the Rule 56 of the B-PPRA, 2014 as under:
56. Mechanism for Redressal of Grievances. ---(1) The Procuring Agency shall constitute a committee comprising odd number of persons, with appropriate powers and authorizations, to address the complaints of bidders that may occur prior to the entry into force of the procurement contract.
(1-a) The Committee shall consist of a chairman, head of the procuring agency or an officer of the procuring agency , at-least one rank senior to the head of the procurement committee and odd number of members at least one third of members are from outside the procuring agency: Provided that none of the members on the committee were members on the procurement committee. ii in sub-rule (7), for the words "in the relevant court of jurisdiction", the words "proc urement review committee" shall be substituted.
(2) Any bidder being aggrieved by any act or decision of the Procuring Agency after the issuance of Notice Inviting Tender may lodge a written complaint.
(3) The complaint redressal committee upon receiving a complaint from an aggrieved bidder may , if satisfied--
(a) reject the complaint considering it to have been made on frivolous grounds;
(b) prohibit the Procurement Committee from acting or deciding in a manner inconsistent with these rules and regulations:
(c) annul in whole or in part, any unauthorized act or decision of the Procurement Committee;
(d) recommend to the Head of Department that the case may be declared a mis-pro curement if material violation of the Act, rules, regulations, orders, instructions or any other law relating to public procurement, has been established; and
(e) reverse any decision of the Procurement Committee or substitute its own decision for such a decision: Provided that the complaint redressal committee shall not make any decision to award the contract.
(4) The Complaint Redressal Committee shall announce to decision within fifteen (15) days and intimate the same to the bidder and the Authority within three (03) working days by Procuring Agency .
(5) The Procuring Agency shall award the contract after the decision of the complaint redressal committee.
(6) Mere fact of lodging of a complaint shall not warrant suspension of the procurement proceedings.
(7) Any bidder not satisfied with the decis ion of the Committee of the procuring Agency may lodge an appeal in the relevant court of Jurisdiction,"
7, It appears that despite announcement of Evaluation Report, the procurement authority has failed to issue work order , rather the respondent No,3 cancelled the tender , whereupon the petitioner approached the grievance redressal committee (GRC) for redressal of his grievances. The GRC accepted the application of the petitioner vide order dated 8th November , 2019, with direction to withdraw the cancellation order dated 16.10.2019 and work order be given to the lowest bidder . The contention of the learned AAG that the license of the petitioner was expired on 30th June, 2018 and he was not eligible to participate in the bidding process, has no force for the reasons that the record manifests that the petitioner approached the Pakistan Engineering Council Quetta for renewal of license on 16.09.2019 while the notice of tender was published on 18.09.2019 and last date for bidding was 07.10.2019.
8. Without prejudice to above, under B-PPRA Rule, 2014 there is no concept for the constitution of Second.
Grievance Redressal Committee. As per notification No.FD.SO (Procurement)1- 31/BPPRA/2019/235-330 dated 20.03.2019 the Rule 56-A was added while providing another forum to the bidder for review of the decision of the GRC. It would be appropriate to reproduce Rule 56-A as under: 56-A. Procurement Review Committee. (1) If the Grievance Redressal Committee fails to arrive at a decision within 18 days, or if the bidder is not satisfied with the decision of the Grievance Redressal Committee they may lodge an appeal to the review Committee within five days of the completion of eighteen days or decision of the Grievance Redressal Committee whatever the case may be Provided that the Firm has not withdrawn the Bid Security , (ff deposited).
(2) The review committee shall comprise of:
(a) Managing Director . B-PPRA.
(b) Procurement Specialists, B-PPRA
(c) One private member
(d) One technical expert.
(3). The Managing Director shall be the chairperson of the committee and shall nominate the private member and the technical expert on behalf of the B-PPRA Board for each reference. The private member shall be paid remuneration for attending the meeting at a rate prescribed by the Authority from time to time.
(4) The Bidder shall file a review applicat ion supported with complete set of documents of the reference; including at-least the bidding documents, previously submitted grievance and to decision (if received) before the Review Committee, subject to payment of review fee, at a rate prescribed by the authority from time to lime.
(5) On receipt of the review application the Chairperson of the Review Committee shall summon the meeting of the Committee and disposes-off the reference within two weeks from the date of receipt of application, through either of the following decisions:
(a) reject the appeal being on frivolous ground;
(b) Uphold the decision of the Grievance Redressal Committee:
(c) Revoke the decision of the Grievance Redressal Committee;
(d) Declare the case to be of mis-procurement.
(6) where the Procurement Review Comm ittee is of the view that proceedings before it may be rendered irrelevant if the procurement proceedings, subject to appeal are not suspended. the Review Committee may notify the concerned procuring agency suspending the procurement proceedings until the Reviews Committer make a decision on matter ."
9. The respondent has constituted another committee vide Notification 3-17(AKEQZ/548-59/9, dated 31.01.2020.
The promulgation of B-PPRA Rule, 2014 is to be followed in its letter and spirit. The procuiement authority has no power to act beyond the rule or super sede the rule. It is immutable rule that all the public bodies making procurement decision must adhere to the rule. It is mandatory upon procuring agencies to abide the procedure. It is settled principle of law that any act which is required to be done in particular manner, it should be done on that manner . The B-PPR A Rule, 2014 has not provided the constitution of the second GRC.
10. It is settled proposition of law that nobody should be penalized by the act of the public functionary . In this regard reliance is, placed on the case of Ahmed Lateef Qureshi v. Controller of Examination Board o Intermediate and Secondary Education, Lahore PLD 1994 Lahore 3 .
In view of above, the petition is accept ed. The constitution of GRC dated 31.01.2020 is illegal without lawful authority . The respondent No.3 is directed to issue work order as per the decision of the GRC dated 08.1 1.2019.