KAUSAR SULTANA HUSSAIN, J.---Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner submitted following prayers:- I) To declare the act of Respondent No.2 (Messrs NED University) in respect of acceptance of "highest Bid of the Respondent No.3 (Messrs T.S. Builders) towards the lowest Bid of the Petitioner" is quite illegal, unlawful and against the law. ii) To declare that the Respondent No.2 is legally bound to hold the Bid Proceedings in TRANSPARENT MANNER as per Article 25 of the Islamic Republic of Pakistan, 1973, whereas the Respondent No.2 has accepted the Bid of the Respondent No.3, which is very high toward the Bid of the Petitioner. iii) To further declare that since the petitioner is the "Successful Bidder" therefore, the act of the respondent No.2 for issuance of impugned Work Order dated 08.05.2019 to the respondent No.3 after acceptance of Highest Bid of the respondent No.3 is quite illegal, ultra vires. iv) To direct the respondent No.2 to issue Fresh Work Order regarding "construction of "Synthetic Football Ground/Turf and Allied Work" in favour m we petitioner as the petitioner is the Lowest Bidder of the said Bidding Proceedings which were held by the respondent No.2. v) To Cancel the impugned Work Order dated 08.05.2019 issued by the respondent No.2 in favour of the respondent No.3 as the respondent No.2 has illegally accepted the "highest bid" for the requisite work and unlawfully issued impugned Work Order, which act of the respondent No.2 comes within the meaning of misuse of powers and functions. vi) To further set aside the impugned order dated 23.05.2019 passed by the respondent No.2 regarding "discarding the Grievance Appeal filed by the petitioner" on account of "disqualification of the petitioner" as neither the respondent No.2 has discuss the submissions/contentions of the petitioner while deciding the Grievance Appeal of the petitioner. vii) To suspend the Operation/Proceedings of the impugned orders dated 23.05.2019 passed by the respondent No.2 till final disposal of the above petition, for the reason that the respondent No.2 by not discussing the submissions of the petitioner have rejected the Grievance Appeal of the petitioner and also without issuance of any prior notice disqualified the petitioner from the Contract. viii) To grant permanent injunction in favour of the petitioner and respondents Nos. 2 and 3 their Administrators, Incharge, Contractors, Managing Directors, Agents, Person or persons with directions to suspend the proceedings of the impugned Work Order dated 08.05.2019 till final disposal of the instant petition. ix) Cost of the petition. x) Any other relief which may deem fit and proper under the Circumstances of the case.
2. Relevant facts necessary for disposal of instant petition are that the petitioner is doing business under the name and style of Messrs MOHIB ENTERPRISES, while the respondent No.2 is the Statutory Body incorporated in 1997 through N.E.D University of Engineering and Technology Act, 1997, who has published the Notice inviting "Tender" (NIT) in well-known Newspaper for the construction of "Synthetic Football Ground/Turf and Allied Work" then the petitioner submitted its "Bid" on 12.02.2009 in accordance to the requirement of 'N.I.T.' along with all the required relevant documents together with duly filed and signed B.O.Q; besides the petitioner, six others also participated in the bidding process. It is further submitted that, on the opening of the bid it revealed that firm of petitioner stood first lowest with the amount of Rs.6,90,90,196.80/-, whereas the Second lowest Bidder the respondent No.3 offered Bid amounting Rs.7,90,33,834/ -, which 'shows that the petitioner was the "Successful Bidder" for the requisite work as required by the respondent No.2; the number of works have already been allotted and finalized by the petitioner and there is no complaint of any nature on record. It is further submitted that on 03rd May, 2019 the petitioner on the website of the respondent No.2 found that without any justification, reasons and hearing the petitioner, the Procurement Committee of the respondent No.2 has disqualified the Firm of the petitioner.
Accordingly petitioner appeared in the office of the respondent No.2 and submitted an "Appeal for Redressal of Grievance" and once again requested that since the petitioner is "Successful Bidder" then as to why it has been disqualified; petitioner also drew the attention of the respondent No.2 that the Company of the petitioner is the listed Company and proper Affidavit has already been submitted, the petitioner also annexed the Work Order as well as Completion Report, but the Complaint Redressal Committee (C.R.C) of the respondent No.2 while deciding the Grievance Complaint of the petitioner without considering the justification of the petitioner has discarded the complaint of the petitioner and illegally issued impugned Work Order dated 08.05.2019 bearing No. DP/124377/6756/19/1949 in favour of the respondent No.3. He lastly submitted that there is no other speedy remedy is available except filing of the petition, hence this petition.
3. Notices were issued to the respondents as well as Advocate General Sindh. The respondents Nos.
1, 2 and 3 have submitted their respective comments to this Petition.
4. Mr. Nihal Hashmi, Advocate appearing for the petitioner has submitted, that the Director Procurement of the respondent No.2 while awarding the work to the respondent No. 3 (Messrs T.S. Builders Pvt. Ltd.) has violated the SPPRA Rules intentionally and deliberately by accepting the 'Bid' of the respondent No.3 inspite of the fact that bid Of the respondent No.3 was higher then the bid of the petitioner. He further submitted that the respondent No.2 in order to facilitate the respondent No. 3 has willfully disqualified the petitioner without listening him and issuance of any letter. Per learned counsel for the petitioner, the Grievance Committee constituted by the respondent No. 2 had dismissed its Grievance petition without discussing reasons of disqualification of the petitioner and illegally issued the impugned work order in favour of the respondent No.3 without following the law and without conducting the proceedings in fair and transparent manner. The learned counsel finally prayed for cancellation of impugned work order dated 08.05.2019 awarded to the respondent No.3, by allowing the present petition.
5. Mr. Jawad Dero, the Additional Advocate General Sindh appearing for the respondent No.1, the Secretary to Government of Sindh, School Education and Literacy Department has submitted a statement wherein he requested that the petitioner's case is mainly against the respondent No.2 (N.E.D University), therefore, the name of respondent No.1 may be deleted from the list of the respondents.
6. Ms. Farkhunda Shaheen, the learned Counsel for respondent No.2 has submitted detailed reply of the respondent No. 2 and argued that through advertisement published in daily Newspaper, tenders were invited for construction of Synthetic Football Ground/Turf and Allied Services in the NED University (respondent No.2), whereby, the eligibility criteria has specifically been mentioned, according to which documentary evidence of similar works executed or works in progress, if any, was required to be submitted as per the Regulations for. Procurement of. Works 2013 framed under section 27 of Sindh Public Procurement Act, 2009. It is further submitted that since the petitioner has failed to provide any documentary evidence to show that earlier he had completed the similar work or similar work was in progress at the relevant time hence, petitioner's bid had been rightly rejected under the relevant Rules / Regulations. The learned counsel for respondent No.2 has further submitted that the petitioner has filed copy of Income Tax Returns along with the present petition, however, this .did not belong to the petitioner in its own name: Per learned counsel for the respondent No.2, it was single stage one envelope procedure; various bidders have participated in the bidding process and as per bid evaluation report duly signed by the Convener, Member/Secretary and Member of Procurement Committee seven bids were evaluated by the said Committee as per eligibility criteria mentioned in the Notice inviting tender (NIT) and bidding documents in accordance with Sindh Public Procurement Rules, 2010 out of which, respondent No.3 Messrs T.S. Builders Pvt. Ltd. had been approved being the technically evaluated responsive of BOQ items while remaining six bidders were non-responsive as per technical evaluation report. It is pointed out by the learned counsel that petitioner also not filed requisite affidavits till the day of opening of bids i.e. 12.2.2019 up till 10:00 a.m., confirming that it had neither been black listed nor involved in any legal dispute. However, along with this petition the petitioner attached photocopy of an affidavit dated 27.2.2016 three years prior to submission of the bid documents, per learned counsel for the respondent No.2, the bid evaluation report has also been hoisted on the University and Sindh Public Procurement Regulatory Authority websites for three working days as per requirement of Sindh Public Procurement Rules and after approval by the Competent Authority work order dated 8.5.2019 was issued in favour of the respondent No.3 being successful bidder. Per learned counsel for the respondent No.2, the petitioner has submitted its complaint on 16.5.2019 before Complaint Redressal - Committee (CRC) and after hearing the petitioner, the Committee has maintained the impugned decision of the Procumbent Committee. The petitioner instead to file appeal before Review Committee as provided in Rule 32 of Sindh Public Procurement Rules, 2010, filed present petition, which is not maintainable in law. The respondent No.2 has finally submitted that the contract in question has been awarded by strictly following the relevant laws and rules, therefore, the petitioner is not entitled for any relief(s) as claimed, hence, the present petition is liable to be dismissed with compensatory cost.
7. The respondent No.3 Messrs T. S. Builders has also filed its counter-affidavit through its representative, wherein, the, respondent No.3 has raised almost same plea(s) on facts and law as averred by the respondent No.2 in its counter-affidavit for dismissal of the present petition.
However, it is submitted by the learned counsel for the respondent No.3 while arguing the matter that documents submitted by the petitioner along with its bid do show that the petitioner had carried out construction work of Roads, Nallahs and renovation of a portion of a Maternity Hospitals while not a single document had been enclosed along with its bid which could show that the petitioner had ever constructed. any sports ground or installed any turf in relation to any sports activity, hence, it was rightly disqualified from the subject tender. It is also submitted by the learned counsel for respondent No.3 that the subject work order was issued in favour of the respondent No.3 on 8.5.2019 and on the site turf has already been installed, hence, present petition is liable to be dismissed.
8. We have heard the learned counsel for the parties at length, gone through, the entire record available on the file and considered the relevant laws.
9. After hearing arguments and perusal of the record, we found that for construction of Synthetic Football Ground/Turf and Allied services as per requirement of law of SPPA, 2009 tenders were invited by the respondent No.2 through publication and eligibility criteria was specifically mentioned therein, which directed the interested bidders to attach "documentary evidence of similar works executed and works in progress" along with other required documents. Record shows that petitioner as per "Bidder eligibility/qualification report (available on record as annexure R/3) had not attached the documentary evidence of similar work executed and works in progress .and no affidavit to the effect that Firm had not been Black Listed by Government, Semi Government or Autonomous Bodies had been filed on non-judicial stamp paper, therefore, the petitioner was declared as disqualified bidder by the members of Procurement Committee vide report dated 14.02.2019. The Regulations for Procurement of work 2013 specifies eligibility under Rule 29 of The Sindh Public Procurement Rules, 2010 as under:- "The criteria to be met are to be set out in bidding documents and, if the bidder whose bid has been determined to be the lowest but who does not have the capability to perform the contract, his bid is to be rejected. In such event, the procuring agency is to make a similar determination for the next lowest bidder."
10. The petitioner could not prove its eligibility criteria as mentioned in Tender Notice in order to determine its eligibility and as per law, if the bidder whose bid has been determined to be the lowest but who does not have the capability to perform the contract, his bid is to be rejected.
Besides this, the petitioner after decision of CRC impugned in this petition did not approach to the Review Committee through filing an appeal as provided in Rule 32 of SPPR 2010 (amended) 2017, which is reproduced hereunder for ready reference :- Appeal to the Review Committee:
1. A bidder not satisfied with decision of the prosecuring agency's complaints Redressal Committee may lodge an appeal to the Review Committee; provided that he has not withdraws the bid security, if any, deposited by him.
11. At this juncture, we would like to quote a judgment authored by my 'learned brother Mr. Justice Aqeel Ahmed Abbasi, on the point of non-availing alternate remedy available to the aggrieved bidder before filing Petition as provided under the law, reported in 2011 YLR 746. In this judgment it was held as under :- "High Court before exercising its extraordinary jurisdiction must be satisfied about the non- availability, or inefficacy of alternate remedy provided under law and once it is shown to the satisfaction of the High Court that alternate remedy is expedient, effective, then courts would be reluctant to exercise writ jurisdiction, which is not meant to bypass such authority to render such hierarchy as redundant superfluous.
Apex court in number of cases has deprecated tendency to invoke writ jurisdiction, bypassing remedy provided under relevant statute, one may refer to ease of Match Company Ltd. v.
Authority under Paym ent of Wages Act 2003 SOAR 1492.
It was further held in same judgment that :- "It is now well settled proposition in law that where law provides a remedy, by way of representation, appeal and review before a domestic forum and such forum is seized of ample authority to grant any relief as claimed in the petition, any interference by the High Court in a routine manner would not only undermine the authority of such forum but would also produce a sense of distrust in the statutory forum provided under the relevant law, one may gainfully refer to Shahid Agency v. Collector of Customs 1989 CLC 1938. In view of the foregoing, since the petitioner has not availed the alternate remedy provided under Rule 31 of Sindh Public Procurement Rules, 2010, all the relief claimed in the Petition can effectively be granted by the forum provided under the Rule 31 ibid, therefore the petition is dismissed. However, the Petitioner may file his grievance before the CRC within 10 days from receipt of copy of the instant order.
CRC shall examine the claim of the petitioner strictly in accordance with the Sindh Public Procurement Rules 2010, and dispose of the matter within the time frame provided under the Rule 31 ibid, after giving opportunity of being heard to the petitioner, procuring agency and Respondent No.3 in this regard, where after any party aggrieved of the decision of CRC may avail remedy of appeal provided there under Rule 31 ibid".
12. In the instant matter the petitioner did not file appeal before the Review Committee against the impugned decision; on the contrary approached to this Court through filing this petition, therefore, the instant petition is not maintainable on the point of law also. We are therefore of the view that the impugned decision dated 23.05.2019 is neither against the law nor any substantial error or procedural defect has been committed and no material point of law has been left undecided, therefore, the present petition having no merits is hereby dismissed with no order as to cost.
13. These are the reasons of our short order dated 31.08.2021.