Through the instant writ petition, the petitioner, M/s Abdul Wahab and Enterprises, assails the procurement process initiated by the Capital Development Authority ("C.D.A.") through tender notice dated 27.07.2023 inviting bids for the award of "Soft Landscaping, Horticulture and Earth Work of PC-I construction of Bhara Kahu Bypass, Islamabad."
2. S Learned counsel for the petitioner submitted that earlier on two occasions, the C.D.A. had issued tenders for the award of the said works, but on both the occasions, the same \~ were cancelled for the reasons unknown to the petitioner; that in response to the tender notice dated 27.07.2023, the petitioner on 08.08.2023 applied to the C.D.A. for the issuance of tender documents and in this regard also made out a banker's cheque dated 08.08.2023 for an amount of Rs.1.4 million; that in order not to allow the petitioner to participate in the tender process, the C.D.A. did not issue tender documents to the petitioner; and that the inaction on the part of the C.D.A. to issue tender documents to the petitioner is intended to deprive the petitioner of its legal rights and to award the contract to a pre selected bidder. Learned counsel for the petitioner prayed for the instant petition to be allowed in terms of the relief sought therein.
3. On the other hand, learned counsel for the C.D.A. submitted that the petitioner has concealed material facts from this Court; that the first tender was published on 24.02.2023 and six parties had submitted their tenders; that the contract was awarded to M/s Muhammad Rehman Z & Co., whose contract was cancelled because it had refused to work after three months; that the tender was republished on 04.07.2023 and in this process, only one party i.e., the petitioner had submitted its tender; that in order to enlarge the competitive arena, it was decided to issue fresh tender; that tender was republished on 26.07.2023 and the petitioner was one of the twelve parties that had applied for the issuance of the tender documents; that the petitioner was not given tender documents because he did not fulfill the criteria prescribed in the tender notice for participation in the bidding process; that on 10.08.2023, the petitioner collected his CDR; that the tenders were opened on 10.08.2023 and the work order was issued to M/s Saad Enterprises / respondent No.6 on 16.08.2023; that the contract period was one month with effect from 17.08.2023 to 15.09.2023; and that the work has already been completed and out of the contract price of Rs.4,32,25,248/-, an amount of Rs.19,00,000/- has been paid to respondent No.6. Learned counsel for the C.D.A. prayed for the writ petition to be dismissed.
4. Learned counsel for respondent No.6 submitted that respondent No.6 has nothing to do with the dispute between the petitioner and C.D.A.; and that respondent No.6 has performed most of the work but C.D.A. has withheld its bill due to the pendency of the instant petition. He also prayed for the dismissal of the instant petition.
5. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
6. The admitted position is that the petitioner had not been issued tender documents with respect to the tender that was published on 26.07.2023. This caused the petitioner to file the instant petition on 15.08.2023. Vide order dated 16.08.2023, this Court issued notice to the respondents and on the petitioner's application for interim injunction, it was ordered that any further steps taken by the C.D.A. pursuant to the said tender notice would be subject to the final outcome of this petition.
7. During the pendency of the instant petition, C.D.A. issued work order dated 16.08.2023 to respondent No.6. Perusal of the said work order shows that the contract price was Rs.4,32,25,248/- and the contract period was thirty days with effect from 17.08.2023 to 15.09.2023. The maintenance period for the whole work including soft landscaping, horticulture and earth work was one year with effect from 16.09.2023 to 15.09.2024. The contract has been partly performed and part payment has been made to respondent No.6.
8. The question whether the C.D.A. could refuse to issue tender documents to a prospective bidder on the ground that it did not satisfy the conditions set out in the advertisement in order to be eligible to be awarded the contract has been dealt with by this Court in the judgment dated 26.07.2021 passed in writ petition No. 947/2021 titled "Sanghol Engineering Services (Pvt.) Ltd. Vs. Capital Development Authority" in the following terms:- "9. The vital question that needs to be answered is whether a procuring agency like the C.D.A. can refuse to issue tender documents to an applicant on the ground that it had not fulfilled the conditions for the issuance of a tender. Learned counsel for the C.D.A. is confusing the issuance of tender documents to a bidder with issuance of a tender to a successful bidder. The former simply implies a permission to an applicant to participate in a tender bidding process whereas the latter implies the award of a contract to the successful bidder.
10. The terms of the tender notices in question do not require an applicant of the tender documents to satisfy the C. D.A. as to the condition of having at least 03 work orders for last 02 financial years in the relevant field at the stage when an applicant approaches the C. D.A. for the purchase of the tender documents. For the purchase of the tender documents, an applicant has to submit a non-refundable fee by the last date mentioned in the tender notice. After an applicant submits a bid, if it cannot satisfy the C.D.A. as to the condition of having at least 03 work orders for last 02 financial years in the relevant field including satisfactory completion / performance certificate, the bid would be rejected. The C.D.A. can take this decision during the bid evaluation process. It cannot refuse to issue tender documents to an applicant on the ground that it would not satisfy the criteria for the award of the contract. It is an admitted position that no evaluation of the petitioner's credentials took place at the stage when it approaches the C. D.A. for the purchase of the tender documents."
The refusal by C.D.A. to issue tender documents to the petitioner, is contrary to the principles and law laid down by this Court in the said judgment. The said judgment was binding on the C.D.A. in terms of Article 201 of the Constitution. The C.D.A. will be deemed to be in the knowledge of the said judgment as it was a respondent in the said case. This is reason enough to allow the instant petition by declaring that C.D.A.'s refusal to issue tender documents to the petitioner is unlawful and arbitrary.
10. The decisions taken by procuring agencies not to issue tender documents to the applicants have been deprecated by this Court in the order dated 02.10.2023 passed in writ petition No.2546/2023, which has been upheld by the Division Bench of this Court vide order dated 10.10.2023 passed in I.C.A.No.334/2023.
11. The question that would warrant determination is whether in these circumstances, this Court can issue a writ of mandamus to the C.D.A. It is not disputed that the plantation work has already been carried out by respondent No.6 during the one-month contract period. Presently, the maintenance period is ongoing. This Court cannot issue a direction either to the C.D.A. or respondent No.6 to reverse the work already carried out and restore the contract area to its original position. Therefore, I refrain from making a declaration as regards the issuance of the work order to respondent No.6.
12. Had the tender documents been issued to the petitioner and had he not fulfilled the criteria for the award of the contract, C.D.A. would have been well within its rights to have rejected the bid. The occasion for the filing of the instant petition would not have arisen had the C.D.A. acted in accordance with the law laid down in the judgment dated 26.07.2021 by issuing tender documents to the petitioner. Therefore, it is ordered that the C.D.A. shall bear the petitioner's costs.
13. The petition is partly allowed in the above terms.