SOHAIL NASIR, J. While exercising the powers under Rule 12 of the Punjab Procurement Rules, 2014 (PEPRA Rules) framed under section 26 of the Punjab Procurement Authority Act, (VIII of 2009)
(Act) an advertisement, on 05.10.2021, was published in newspapers 'Daily Express' and 'Daily Dunya' on behalf of Executive Engineer Public Health and Engineering Department Division Multan (respondent No.3) inviting the bids[1] for 'Civil Work' in the area of Basti Muhammad Pur, Gangi Basti and Basti Malook Road, Tehsil Shujabad district Multan. One of the conditions notified was as under:- "The bid security @ 5% of estimated cost, in the shape of deposit at call from the schedule Bank in the name of Executive Engineer, PHE Division Multan will be accompanied with the bid and the CDR Number, Date, Amount and Bank Name also mentioned on bid, failing which the bid documents shall not be entertained."
(Emphasized applied)
2. Muhammad Munir (petitioner) and Adeel Islam (Respondent No.6) were the only contestants, who filed the biding documents[2]. So far as petitioner is concerned, he had deposited CDR[3] with his bidding document whereas, respondent No.6 attached CDR of lesser amount i.e. Rs.1315000/- (thirteen lacs and fifteen thousands) instead of Rs.5770000/- (fifty seven lacs and seventy thousands) however for the rest amount he had submitted 'Bank Guarantee'.
3. On 21.10.2021 the bidding documents were opened by the Tender Opening Committee, who finding that respondent No.6 did not make compliance of the condition about CDR, had rejected his bid.
4. Being aggrieved from the order of rejection of bid, respondent No. 6, on 25.10.2021, filed an appeal before the Executive Engineer (respondent No.3). It appears that still there could be any adjudication on his appeal respondent No. 6 filed a Writ Petition (16954 of 2021) on the strength of a Circular dated 29.07.2020 issued by PHED[4]. It was disposed of by this Court vide an order dated 05.11.2021 with the observations that respondent No.6 may avail alternate remedy before the appropriate forum. Subsequent thereto, on 09.11.2021, respondent No.6 moved an application to the Chief Engineer South (respondent No.2) which was forwarded by him to the Grievance Redressal Committees[5] (GRC) comprised of Project Coordinator (Design Cell), Deputy Director (P&D) and Director (Design). The GRC after hearing both the contestants accepted the application vide an order dated 26.11.2021 and respondent No. 6 was permitted to deposit the 'Bank Guarantee' and 'CDR'. It was in consequence thereof when on 03.12.2021 bid of respondent No. 6 was accepted by the Chief Engineer South (respondent No.2).
5. Petitioner being aggrieved from the decision of GRC has approached this Court through the instant writ petition.
6. Learned counsel for petitioner contended that respondent No.6 could not be given any premium because he did not make compliance of the condition duly published in newspapers with its consequences; GRC was under no authority to permit respondent No.6 to deposit 'Bank Guarantee' also.
7. Learned counsel of respondent No.6, on the other hand, argued that as under the `PEPRA Rules' the guarantee can be either in form of 'Bank Guarantee' or other form therefore, respondent No.6 had submitted both guarantees in accordance with the said Rules. He further maintained that as the bid of respondent No. 6 was having the less rates, so only that was liable to be approved.
8. Learned Assistant Advocate General on behalf of respondents Nos. 1 to 5 asserted that it was an inadvertent act on the part of respondent No.3, who in the advertisement did not mention about any other mode of security hence an inadvertent act could not defeat the rights of respondent No.6, therefore the GRC rightly accepted the application of respondent No.6.
9. HEARD.
10. The transparency is the soul of any procurement process which must be evident from the actions as it also guarantees that the rights of the competitors may not be defeated. Even under Rule 4 of 'PEPRA Rules' a Procuring Agency, while making any procurement, is bound to ensure that the procurement is made in a fair and transparent manner.
11. The 'Bid Security' has been defined under Rule 2(h) of the 'PEPRA Rules' which says as under:- "Bid security means the bank guarantee or other form of security submitted by a bidder together with a bid to secure the obligations of the bidder participating in a bidding proceedings."
12. The above definition makes it clear that the bid security can be the 'Bank Guarantee' or 'other form of security' submitted by a bidder together with a bid therefore only 'Bank Guarantee' is not a bid security. The word used 'or' before the words 'other form of security' means that it is within the domain of competent Authority either to ask a Bank Guarantee' or 'other form of security' which certainly includes CDR as admitted by all concerned.
13. I have gone through the advertisements where the condition with regard to bid security was specified as CDR only including the penal consequences for non-compliance thereof.
14. Under Rule 12(4) of the 'PEPRA Rules' a Procuring Agency shall ensure that the information posted is complete for the purposes for which it has been posted. Under Rule 33(1) no bidder shall be allowed to alter or modify his bid after the closing time for the submission of the bids. However under Rule 33(2) there is a limited authority available to the Procuring Agency that it may, if necessary after the opening of the bids, seek and accept such clarifications of the bid as do not change the substance of the bid. The words used 'do not change the substance of the bid' have made it clear that the conditions so specified, non-compliance thereof, cannot be compromised.
15. With regard to change in conditions, the powers can be invoked under Rule 25(4) of the PEPRA Rules but not in a way as done in the case in hand. It says that: - "Where any change becomes essential in the procurement process, such change shall be made in a manner similar to that of the original advertisement."
16. This fact has not been disputed during the course of arguments that at no stage any corrigendum was issued by respondent No.3 making it clear that instead of CDR the Bank Guarantee or both the CDR and Bank Guarantee can be submitted with the bid document by a bidder. A safe interpretation can also be drawn from the language used in Rule 25(4) that the change, if any to be made, that has to be before opening the bids so every participant may have a fair opportunity to take benefit thereof. Otherwise only that bid shall be accepted that is in accordance with the conditions notified in the advertisements as under Rule 55 only that bid shall be accepted that is subject to the 'PEPRA Rules'.
17. To my mind if respondent No.6 had any ambiguity or requiring any clarification, he was supposed to approach the competent Authority before submitting the bid, and in failure to do so, he rightly faced the penal consequences when his bid was rejected by the Tender Opening Committee on 21.10.2021.
18. Reverting to Circular dated 29.07.2020 issued by the Punjab Procurement Regulatory Authority, Government of the Punjab Lahore, its paragraph No.6 is as under:- "In the wake of above and in view of legal requirement all procuring agencies are advised to always demand Bank Guarantee instead of CDR/Banker's cheque and better refrain depositing and en-cashing the securities and utilizing amount of securities through their accounts."
19. Plain reading of above Circular shows that at the most it was an advice to Procuring Agencies to demand the Bank Guarantee, so the GRC was under no legal authority to give any benefit of this Circular to respondent No.6. Even otherwise, this Circular cannot override or undo any of the Rules, therefore, it was within the domain of Procuring Agency either to demand only 'Bank Guarantee' or 'CDR' or both.
20. In view of above circumstance, it appears that through unfair means, an attempt has been made to extend the benefit to respondent No.6 by GRC, whose bid was rightly rejected by the Tender Opening Committee on 21.10.2021.
21. Resultantly, this writ petition is allowed. Impugned orders dated 26.11.2021 passed by GRC and 03.12.2021 by respondent No.2 are declared as illegal and without lawful authority with direction to respondent No.3 to proceed further in the matter strictly in accordance with law.
1. Tender or an offer, by a person, consultant, firm, company or an organization expressing willingness to undertake a specified task at a price Rule (2) PEPRA, 2014.
2. Document or a set of documents prescribing the quantity, quality, characteristics, conditions and procedures of the transactions prior to the actual procurement and on the basis of which bidders prepare their bids (Rule 2[g] of PEPRA Rules)
3. Call Deposit Receipt
4. Punjab Health and Engineering Department
5. Constituted under Rule 67 of the PEPRA Rules 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.