RAJA SHAKEEL AHMED, J. This writ petition under Article 86(2) of Government of Gilgit-Baltistan Order, 2018, has been filed by the petitioner to the effect that the respondents have called bids for the project namely "Destination Management of Tapped Areas and Destination Development Planning for un-tapped areas in Gilgit-Baltistan". in the stander bidding documents Request for Proposal (RFP) vide clause-11, it has been categorically mentioned that the consultant/firm shall submit only one proposal either in his own name or as a part of joint venture in another proposal, if a consultant including any JV member submits or participates in more than one proposals, all the proposals shall be disqualified and rejected. The subject project has three components/assignments a, b and c. Respondent No.5 has submitted bids for all the assignments a, b and c and respondents Nos. 3 and 4 have shortlisted the respondent No.5 for all the assignments, A whereas the qualification of the respondent No. 5 is in violation of the terms and conditions of the bidding documents as reflected in clause-11 of the Request for Proposal (RFP), hence the qualification of respondent No. 5 for the subject project may kindly be declared null and void, being in violation of the terms and conditions of the bidding documents and may kindly be directed respondents Nos.1 to 3 to reject all the bids of respondent No.5 by accepting this writ petition with the following prayer:- a) The qualification of respondent No.5 against the subject project "Destination Management of Tapped Areas and Destination Development Planning for un-tapped areas in Gilgit-Baltistan". In all the assignments A, B and C may kindly be declared as null and void and void ab-initio. b) The petitioner may be declared entitled for the award of the project Assignment B "feasibility study for international market trends of tourists and impact study of tourists' flow on Gilgit Baltistan. c) Any other relief this Hon'ble Court deems fit and proper to meet the ends of justice.
2. The learned Counsel for the petitioners argued that the petitioner No.1 is an institute established under trust Act and petitioner No.2 is firm registered with Securities and Exchange. Commission of Pakistan while the respondents Nos.1 to 4 are officials of Government of Gilgit-Baltistan and respondent No.5 is a private firm. He further submitted that the respondent No.3 issued advertisement in daily JUNG dated 21.02.2021 "Request for Proposal" for the project namely "Destination Management of Tapped Areas and Destination Development Planning for un- tapped areas in Gilgit-Baltistan". Wherein 22.02.2012 to 25.3.2021 was given schedule to receive and submit bidding documents, request for proposal (RFP) from the office of Director Tourism and Culture Gilgit-Baltistan. That the petitioners formed a joint venture (JV) and submitted bidding documents to the Assignment-B "Feasibility study for international market trends of tourists and impact study of tourist flow on Gilgit-Baltistan". The learned counsel further argued that it has been expressly provided vide clause-11 of the bidding documents request for proposal (RFP) that the consultant/firm shall submit only one proposal either in its own name or as a part of joint venture in other proposal and if a consultant including joint venture member participates in more than one proposal, all the proposals shall be disqualified and rejected. The learned counsel further argued that after the evaluation of the technical bids, the respondents issued the report of technical bids dated 7.4.2021, wherein the respondent No.5 (Dongil Engineering) has been qualified against all the Assignments A, B and C. The qualification of respondent No.5 in all three items is in violation of the clause-11 of the bidding documents wherein it has been provided that a consultant submitting bidding proposals more than one Assignment, the proposal shall be disqualified and rejected whereas the respondent No.5 by submitting proposals in all the Assignments should have been disqualified and the bids were liable to be rejected. During the evaluation of technical bids, the respondent No.5 was liable to be disqualified and proposals were liable to be rejected under clause-11 of the bidding documents Request for Proposal (RFP) but respondents Nos.1 to 4 have given undue favour to the respondent No.5 in violation of the (RFP) whereby the petitioners rights of competition has been infringed because the petitioners did not participate in other Assignments due to the conditions mentioned in clause-11 of the bidding documents. The learned counsel for the petitioners lastly submitted that the petitioners may kindly be declared entitled for the award of project Assignment-B "Feasibility study for international market trends of tourists and impact study of tourist flow on Gilgit-Baltistan by declaring, the qualification of respondent No.5 null and void against the subject project Destination management of tapped areas and destination development planning for un-trapped areas in Gilgit-Baltistan in all the Assignments A, B and C.
3. On the other hand the learned Deputy Advocate General for respondents Nos.1 to 4, assisted by the learned counsel for respondent No.5, hotly contested the arguments of learned counsel for the petitioners and submitted that the writ petition is pre mature and not maintainable, the learned counsel further contended that the petitioners have failed to avail the alternate remedy as provided under Rule 48 of the Procurement Rules, whereas, the respondent No.1 has a permanent grievance committee; hence the petitioner is not entitled to any relief from this court. On the merit of the case the learned counsel contended that the petitioner participated in the bid process and remained unsuccessful, the efficiency of the petitioner for the impugned project was not sufficient and technically he could not qualify for the required marks required to be shortlisted, on the basis that the petitioners do not have the technical and financial capacity to undertake the same. It was F contended that since the petitioners lack technical knowhow and requisite experience to carry out all the three projects hence there is no justification for raising the objection on the process of bid through the instant writ petition, they further contended that the impugned project is awarded to the respondent No. 5 after fulfillment of all codal formalities the start order of the subject work is issued in the name of the respondent No. 5, considerable work of the project is completed and if at this stage the proceedings are stopped and. the tender proceedings were declared null and void the public exchequer shall suffer a loss of millions and the respondent No. 05 shall also suffer a financial loss coupled with mental agony and torture. It was further contended that the controversy involves disputed questions of facts which could not be adjudicated in writ jurisdiction, the learned counsel further contended that the question as to whether the petitioner had the technical skill and knowhow this aspect can only be fairly determined by respondents Nos.2 and 3 and cannot be adjudicated in a writ jurisdiction. It is further contended that the petitioners approach this court with uncleaned hands complaint of the petitioner before the grievance committee was not for redderssal of his grievance as agitated in the present writ petition rather in a written request to chairman grievance committee the petitioners sought the three remedies i.e. i. Allow the Joint Venture (petitioners) to submit two more proposals giving equal opportunity to all the firms/consultants extending the proposal submission date. ii. Allow all the firms/consultants who have submitted technical proposal to deliver a presentation on understanding of the assignment and proposed approach and methodology to evaluate reasonably minimizing and removing risks of wastage of public money. iii. Extending proposal submission deadline giving reasonable time to non-for-profit organizations to arrange 5% earnest money to participate in the tendering process.
The date and initial of the office is not reflected on the above request, to clarify that when this appeal is presented and who have received it in the office of the chairman grievance committee, hence the complaint is vague and it could be safely inferred that no complaint has been made to the grievance committee.
4. We have heard the learned counsel for the parties at considerable length and with their able assistance we have also perused the record available on file and also gone through the relevant law, the respondents have taken preliminary objection regarding the maintainability of the writ petition in light of alternate remedy available to the petitioners; in this regard section 48 of PPRA Rules is relevant provision, and for the sake of brevity the relevant rule is reproduced below and is as follows: "48. Redderssal of grievances by the procuring agency:---- I. The procuring agency shall constitute a committee comprising of odd numbers of persons, with proper powers and authorization, to address the complaints of bidders, that may occur prior to the entry into force of the procurement contract.
II. Any bidder feeling aggrieved by any act of the procuring agency after the submission of his bid may lodge a written complaint concerning his grievances not later that fifteen days after the announcement of the be evaluation report under rules 35.
III. The committee shall investigate and decide upon the complaint within fifteen days of the receipt of the complaint.
IV. Mere fact of lodging of complaint shall not warrant suspension of the procurement process.
V. Any bidder not satisfied with the decision of the committee of the procuring agency may lodge an appeal in the relevant court of jurisdiction.
Bare reading of the above rule it transpires that alternate remedy in shape of complaint is available to the aggrieved bidder and being dissatisfied with the decision of the committee may lodge an appeal in the relevant court of jurisdiction. This rule also clarifies that, the aggrieved bidder, can file an appeal in competent court of Jurisdiction but not writ in the high court, and in the presence of the alternate and adequate remedy under the Rule 48 of PPRA Rules a writ petition should not be entertained.
5. Another primary objection which has been taken in the instant case is that since the petitioners were not considered to be shortlisted on the ground that they didn't have the requisite experience and qualification, technical knowhow and financial capacity. The sole judge of the referred issue can be respondents Nos. 2 and 3 and the matter cannot be adjudicated in the writ petition. Though the petitioners have pointed out various documents in support of their stances, but the assertion of the petitioner and denial of respondents lead to disputed question of facts which cannot be adjudicated in constitutional jurisdiction, it would not be possible for this court to decide factual controversies and disputed facts as whether, the petitioner has got the skills, technical knowhow, capability, and resources to accomplish the task in question. Through the plethora of judgments by the superior courts it is well settled by now that, the superior courts should not involve themselves into investigation of disputed question of facts which necessitate taking of evidence.
6. From perusal of purported complaint submitted by the petitioner before the chairman Grievance Committee, it transpires that the said complaint was not for redderssal of his grievance as agitated in the present writ petition rather it is request to chairman grievance committee through which the petitioners sought permission for submission of additional proposal and extension of proposal submission deadline, neither the date nor the initial of the office is reflected on the above request, to clarify that when this appeal is presented and who have received it in the office of the chairman grievance committee, hence the above request could not be considered as complaint in true sense being vague and it could be safely inferred that no complaint as envisaged in the Rule 48 of PPRA Rules has been made to the grievance committee.
7. The prayer of the petitioner sought in the instant writ petition couldn't be granted because on one hand the petitioner sought declaration to the effect that the qualification of respondent No. 5 against the subject project "Destination Management of Tapped Areas and Destination Development Planning for un-tapped areas in Gilgit-Baltistan" in all the assignments A, B and C may kindly be declared as null and void and void ab-initio but on the same breath the petitioners also sought declaration to the effect that the petitioners may be declared entitled for the award of the project Assignment B "feasibility study for international market trends of tourists and impact study of tourists" flow on Gilgit Baltistan, how it could be warranted that after declaring the respondent No.5 unqualified for all the three components of the project to declare the petitioners qualified for only one component.
8. The upshot of the above discussion is that, the PPRA Rules provided complete mechanism/remedy to the aggrieved persons, constitutional petition was only to be entertained as an exception and not a rule when adequate remedy under Rule 48 of PPRA Rules was available, remedy provided in law could not be abandoned or bypassed on mere whims and desires of an aggrieved person, moreover we are of the view that, the questions raised in the instant petition by the petitioners relate to factual controversy which requires factual inquiry, and this court exercising constitutional jurisdiction cannot look into and adjudicate upon such factual disputes. Accordingly, instant writ petition bearing number W.P. No. 134/2021 being misconceived in fact and law is dismissed along with C. Misc. No. 243/2021 and C. Misc. No.313/2021. However, the petitioner, if so advised, may seek appropriate alternate remedy as provided under law, and if limitation period for seeking such remedy has expired during pendency of these proceedings, the appropriate forum/authority may sympathetically consider, the request for condoning such period. File. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.