KAMRAN HAYAT MIANKHEL, J. Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner seeks the following relief:- "It is, therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to:- A) Declare that the impugned orders are illegal, unlawful, without lawful authority and of having no legal effect, hence, liable to be set aside.
B) Declare that the impugned reason (irregular pattern noted in the bidding process) rolling back the entire successful legally held bidding process after having declared the petitioner the highest successful bidder is seemingly perverse, arbitrary, irrational, based upon irrelevant consideration, discriminatory and tainted with mala-fide.
C) (Consequently) direct the respondents to award the contract of leasing out of Shugran Rest House Mansehra, Speaker House, Upper Narran Mansehra and Lower Narran Mansehra to the petitioner being the highest declared bidder in a successfully legally held bidding process.
D) Issue any other writ or order or direction to respondents and pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case."
2. The facts of the case, in brief, are that respondents under the Khyber Pakhtunkhwa Rest Houses and Tourism Properties (Development, Management and Regularization) Act, 2020, invited bids through single envelope procedure for annual lease of (19) Government Rest Houses for a period of fifteen (15) years through public notice published in the newspaper. The petitioner being eligible and qualified in all respects as per terms and conditions mentioned in the advertisement obtained bidding solicitation documents containing detailed descriptions including evaluation criteria from the office of respondent No.2 and applied for four Government Rest Houses in prescribed manner namely Shogran Rest House, Mansehra, Hamala Speaker Rest House at Nathia Gali, Upper Narran, Mansehra and Lower Narran Mansehra after submitting earnest money of 2 percent. As many as 16 bids were received, 6 firms including the petitioner were declared technically qualified and their financial bids were opened on 26.11.2021 in which petitioner came out to be the highest bidder for four rest houses. Instead of proceeding further into the matter of leasing out to the petitioner, the meeting of technical committee held on 07.02.022 under the Chairmanship of Senior Minister for Finance Department Khyber Pakhtunkhwa (respondent No.3) attended by other members. The committee was apprised that 6 firms out of 16 technically qualified and after opening the financial bids on 26.11.2021 petitioner came out to be the highest bidder for four Rest Houses including Speaker Rest House at Nathia Gali. Instead of leasing out to the petitioner, it was decided to re- advertise citing irregular pattern of difference in percentage between the highest and second highest bidders as a reason. The respondent No.4 issued the general impugned orders upon the decision of respondent No.3 informing the bidders that the department was going to re-advertise the bidding while arbitrary annulling the earlier successfully concluded process whereby made the petitioner the ultimate sufferer, hence, the instant writ petition.
3. Learned counsel for the petitioner argued that the petitioner applied for four (04) Rest Houses but the meeting of the Technical Committee held on 07.02.2022 rejected the bids of the petitioner and ordered for re-advertisement without any cogent reason. He further contended that under the Khyber Pakhtunkhwa Public Procurement Rules, 2014, the bids can only be rejected, if the conditionality under Section 54 of the ibid rules are fulfilled. He lastly contended that the entire action of the respondent No.3 cancelling / annulling the bids was wholly illegal, arbitrary and violation of Article 4 and 10 (a) of the Constitution of Islamic Republic of Pakistan, 1973.
4. On the other hand, learned Additional Advocate General vehemently opposed the contention of learned counsel for the petitioner and stated that the writ petition itself not maintainable, as the matter falls in the contractual contours between the government and the petitioner. He further argued that even if it is presumed that the bids submitted by the petitioner was the highest one, still its open for the government to reject his tender without assigning any reason as the bid process had not matured into grant of any final contract and that the bids were cancelled on the ground of irregular pattern of difference in percentage in between the highest and the second highest bidders.
5. Comments were called from respondents No.1 to 4 and they have submitted the same.
6. We have heard the arguments of learned counsel for the petitioner as well as learned Additional Advocate General and scanned the record with their valuable assistance.
7. Perusal of the case record would show that under Section 4 of the Khyber Pakhtunkhwa Rest Houses and Tourism Properties (Development, Management and Regulation) Act, 2020, deals with the matter. The perusal of Sub-section 2 (a) of Section 4 contemplates that for better management, outsource a Government Rest House or a set of Rest Houses or a Tourism Property through a Technical Committee comprising such members of the Cabinet and such coopted technical members as the government may determine. The second proviso of Section 4 grant the power to the Committee that in case no bid is received or the Committee deems that the bids so received are not reflective of adequate economic consideration, it may direct the respective department to continue with the existing arrangement to manage the advertised properties. The Clause-V of the advertisement reflects that the competent authority reserved the right to reject any or all the bids as per provision contained in Rule 47 of Khyber Pakhtunkhwa Public Procurement Rules, 2014, envisaged that the procuring entity may reject all bids or proposals at any time prior to the acceptance of a bid proposal. The procuring entity shall, upon request communicate to any contractor or consultant who submitted a bid or proposal, the grounds for rejection of all bids or proposals. It further reflects that procuring entity shall incur no liability on the sole ground of its invoking Sub-rule (1). Sub-rule (3) of the ibid Rule 47 stipulates that notice of the rejection of all bids or proposals shall be given promptly to all contractors or consultants that had submitted bids or proposals. The record annexed with the instant writ petition as Annexure-F, is the notice so given under Rule 47 about the rejection of bids to all the bidders. So, contention of learned counsel for the petitioner that no notice was given to the petitioner for rejection of bids is belied by the record, so annexed by the petitioner as Annexure-F.
8. The contention of learned counsel for the petitioner that no notice of rejection of all the bids and proposals was given to the petitioner is refuted by the respondents No.1 to 4 claiming that the bid rejection notice was communicated in compliance of Rule 47 of the of Khyber Pakhtunkhwa Public Procurement Rules, 2014, on affidavit. So, this becomes a factual controversy which cannot be resolved without recording pro and contra evidence. It has by now settled law that this court cannot exercise its jurisdiction, where factual controversy is involved. In this respect, reliance can be placed on the judgment reported as "Ahmad Developers v. Muhammad Saleh" reported as (2010 SCMR 1057) wherein it was observed as under: "Contest on factual controversy could only have been determined through a civil suit and not in constitutional jurisdiction before High Court. Such plea of private respondent was repelled in circumstances. Leave to appeal was declined."
In this context, further reliance can also be placed on the judgments reported as Suo Motu Case No. 13 of 2007" (PLD 2009 Supreme Court 217), Sardar Naseer Ahmad Mooiani v. Chief Executive/Chief Secretary Government of Balochistan Quettta" (2007 SCMR 105) & Mohammad Yahya And Others Vs Government Of Khyber Pakhtunkhwa through Secretary Forest and others (2022 MLD 21).
9. The other contention of learned counsel for the petitioner that the bids cannot be cancelled unilaterally if conditions under Rule 54 of the of Khyber Pakhtunkhwa Public Procurement Rules, 2014, are not fulfilled. Perusal of Rule 54 of the of Khyber Pakhtunkhwa Public Procurement Rules, 2014, reveals that any breach of these rules shall account to mis-procurement and the person responsible for such breach shall be liable to be proceeded under the relevant law but here the petitioner failed to point out any breach of the of Khyber Pakhtunkhwa Public Procurement Rules, 2014.
10. The next question to be answered by this court is that the bid if rejected before its confirmation whether it would create any right in the property in favour of the successful bidders. The comments of the respondents show that the bid was rejected on the ground of irregular pattern of difference in percentage in between the highest and the second highest bidders and even otherwise, the right to accept any bid and to reject any bid or to reject any or all the bids rested with the employer as contemplated in Rule 47 of the of Khyber Pakhtunkhwa Public Procurement Rules, 2014. The apex Court in the case of Munshi Muhammad and another Vs Faizanul Haq and another (1971 SCMR 533) has held that: "Bidders at auction, in circumstance, in absence of final approval of their bids, not clothed with any right in auctioned properties and had no locus standi to challenge transfer competently made."
Similar views were expressed by their lordships of the august Supreme Court of Pakistan in the case of Babu Parvez Qureshi v. Settlement Commissioner, Multan and Bahawalpur Divisions, Multan and 2 others (1974 SCMR 337) as under: "A mere right to bid does not give a right to a person to oppose the transfer of the property to another person under the relevant law. A mere bid at an auction if the bid is subject to confirmation, does not create any contractual right until the bid is confirmed. It is in the discretion of the auctioneer to confirm or not to confirm it. A person who was a successful bidder at the auction cannot claim to be a person aggrieved by the order of cancellation of the auction."
The august Supreme of Pakistan on the subject is the case of Petrosin Corporation (Pvt.) Ltd.
Singapore and 2 others v. Oil and Gas Development Company Ltd. (2010 SCMR 306) wherein it was held that: "There might be cases in which a contract might involve number of documents including exchange of correspondence between parties in process of finalization of award of contract.
Principle of natural justice was not attracted in absence of infringement of any vested rights of appellants. Bids of appellants had not been confirmed finally, therefore, contract could not be said to have been completed. Even the lowest bid would not confer an absolute title for award of a contract. In mega projects host of other considerations become relevant to avoid any unnecessary risk. General letter of intent merely implied an intention to enter into a contract and authority to contract to start work before completion of contract in anticipation of signing of contract with a right to contractor for compensation of work, if any, he had already done. Letter of intention could not be treated to be synonymous to a completed contract. Bid of no other bidder had been accepted and respondent company had decided quite justifiably to re-advertise tenders."
In this respect, further reliance can also be placed on the judgments reported Noor Muhammad Vs Chief Engineer, Works and Servicers Department, NWFP Peshawar and 03 others (2007 SCMR 1572), Afzal Maqsood Butt Vs Banking Court No.II Lahore and 08 others (PLD 2005 SC 470), Province of Punjab and others Vs Munawar Hussain (2013 SCMR 1611), Mumtaz Ahmad Chaudhary Vs Rana Nasir Ali and 03 others (2005 SCMR 263), Muhammad Hayat Vs Director General, Lahore Development Authority and others (2016 MLD Lahore 1287) & Mehmood Medical Store through proprietors Vs Services Hospital Lahore through Medical Superintendent and 03 others (2012 YLR 174).
11. The guidelines provided by the august Supreme Court of Pakistan in such like cases are on all fours applicable to the facts and circumstances of the instant case, wherein the competent authority cancelled all the bids offered by various companies including the petitioner before any contract is awarded or signed with any party and thus no contractual right has created in favour of petitioner even if, for the sake of arguments it is presumed, that his bid was the highest one.
12. The terms of inviting bids cannot be open to judicial review / scrutiny because the invitation of bids is in the realm of authority. Normally the decision to accept the bid or not to accept is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts, which is the case in this petition that the bids were cancelled by the Technical Committee after considering all the aspects and reached to the definite conclusion that the irregular pattern of difference in percentage in between the highest and the second highest bidders is nominal, thus, not complying to the condition as laid down under second proviso of Section 4 of the Khyber Government Rest Houses and Tourism Properties (Development, Management and Regularization) Act, 2020, that if the Committee deems that the bids received are not reflective of adequate economic consideration.
13. In this view of the matter, this Court comes to the conclusion that the decision making process adopted by the government does not suffer from any infirmity nor it can be termed as arbitrary.
Since we are not sitting in appeal over the decision taken by executive, the order passed annulling the bid process cannot be interfered with in the constitutional jurisdiction of this Court. Hence, this petition in hand, is found devoid of any merit and the same is hereby dismissed. 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.