MUHAMMAD SAJID MEHMOOD SETHI, J. This is second round. Earlier, vide order dated 10.11.2022, passed in W.P. No.70192 of 2022, this Court with concurrence of the parties, referred the matter to Board of Directors of respondent No.2, with following direction:-
3. With the concurrence of learned counsel for the parties, present in Court today, I am inclined to transmit copy of this petition, along with all the annexures, to Board of Directors of respondent No.2, with direction to treat it as representation on behalf of the petitioners and decide it strictly in accordance with law, after hearing petitioners and all concerned, through a speaking order within a period of 30 days from the date of receipt of certified copy of this order. In the meanwhile, process of award of contract shall be completed as per law but its fate shall be subject to the outcome of decision of Board of Directors on representation."
In compliance with aforesaid direction, the NTDC Board rejected petitioners representation vide order dated 08.02.2023, which is impugned by means of instant petition.
2. Learned counsel for petitioners contended that the pre-qualification of respondent No.5 as well as its bid documents and acceptance thereof by respondent-NTDC is based on mala fide and in violation of settled terms / norms of the project. Argued that respondent-NTDC has failed to consider the inquiry report dated 14.03.2022, supplementary review report and findings of controlling Ministry while awarding contract to respondent No.5. Maintains that corruption of huge amounts is involved and in such situation, question of limitation does not arise. Contended that proceedings in response to correspondence by the World Bank as well as Ministries of Industries are pending with respondent-NTDC but the same are not being finalized without any legal justification. Further submitted that respondents in their replies have not taken any objection that matter is required to be dealt with by the World Bank. Next argues that as the project is being carried out in Pakistan, therefore, Pakistani laws and applicable rules will apply instead of World Bank's regulations / instructions. Further submitted that material aspects of the matter have not been appreciated while rejecting petitioners representation, hence, impugned order is unsustainable in the eye of law. Lastly submitted that the matter may be referred to NAB / controlling Ministry for decision in accordance with law.
3. Contrarily, learned Law Officer and learned counsel for respondents have defended the impugned decision. Their primary contentions are that the matter involves factual controversies, which exercise cannot be undertaken by this Court in exercise of constitutional jurisdiction; that project in question is funded by the World Bank and loan agreement has been executed by the Government of Pakistan, thus, under well-settled principles of law, the procurement regulations / guidelines of an international financial institution shall take precedence over the Public Procurement Regulatory Authority Rules, 2005; that all the bidders for the project were well aware of and agreed to the applicability of the procurement regulations / guidelines of the World Bank to the bidding process for the project and none ever raised any objections prior to issuance of declaration of being successful bidder in favour of respondent No.5; that the entire procurement process of the project was conducted in accordance with regulations / guidelines of the World Bank, and that the contract was awarded after a detailed evaluation of all bids by the relevant parties.
4. Arguments heard. Available record perused.
5. Perusal of record shows that the project in question forms an integral part of the Dasu Hydropower Project[1]. The Project is being financed by the International Bank for Reconstruction and Development ("IBRD") and the International Development Association ("IDA") (part of the World Bank Group). In this regard, the Islamic Republic of Pakistan entered into a Financing Agreement with the IDA on 25.08.2014,[2] and a further Loan Agreement dated 15.10.2020 with IBRD and IDA.[3] Additionally, NTDC -- Project Implementing Agency, Pakistan and IBRD also entered into a Subsidiary Loan Agreement in June 2021 and NTDC further entered into a Project Agreement with IBRD and IDA dated 07.10.2020 in relation to the project. As discussed, since the project is financed by IBRD and IDA, the procurement for the project (including pre-qualification, bidding, evaluation and selection, etc.) was to be done and regulated in accordance with the terms and conditions of the afore-referred agreements including World Bank's Procurement Regulations for IPF Borrowers.
6. In the instant case, pursuant to prequalification document, respondent-NTDC notified prequalified applicants and invited bids, vide letter dated 23.06.2021, which includes petitioner as well as respondent No.5, besides 14 other applicants. It was stipulated that bidding would be conducted through international competitive procurement as specified in the World Bank's Procurement Regulations for IPF Borrowers. After commercial, technical and financial examination of bids by the Bid Evaluation Team of M/s GOPA --International Energy Consultants GmbH Germany, four bidders (including petitioner at Sr.No.2 and respondent No.5 at Sr. No.4) were declared responsive. Prequalification results were notified on 23.06.2021. Petitioner lodged complaint against respondent No.5 before the World Bank on 06.08.2022. The World Bank, via email dated 02.09.2022, informed that it had reviewed all the information and complaints and decision is taken at highest level possible and award to lowest bidder would be way forward any other decision would result in mis-procurement. Thanks for informing about that to the Board as well.
Notification intending award of contract to respondent No.5 was issued on 23.09.2022 and addressed to petitioner, giving timeline to file complaint or de-briefing request as 07.10.2022.
Petitioner filed complaint and same was filed by respondent-NTDC by observing that evaluation of the bidders has been done in accordance with the World Bank's Procurement Regulations and evaluation criteria provided in the bidding documents. Petitioner again approached the World Bank through letter dated 02.11.2022, pursuant thereto various correspondences were exchanged between the World Bank and respondent-NTDC.
7. It is evident from above factual matrix that petitioner lodged complaint with the World Bank after lapse of more than one year from the date of notification of prequalification and on this lapse, respondents have taken the ground of limitation on the strength of Paragraph 3.27 (Procurement- related Complaints) of Section III (Governance) as well as Paragraphs 2.3, 3.1 and 3.8 of Annex III (Procurement-related Complaints) of the World Bank Procurement Regulations for IPF Borrowers.
Furthermore, petitioner-company participated in the procurement process by accepting all terms and conditions as well as applicable law and regulations, therefore, was obliged to agitate its grievance as provided therein.
8. The question whether proceedings conducted and decisions made by the Respondent-NTDC, duly authenticated and reviewed by the World Bank, can be subjected to Judicial Review by the Courts in the exercise of their Constitutional jurisdiction. The matter is between petitioner, respondent-NTDC and the World Bank, including IBRD and IDA, who financed the project. The latter three entities are admittedly not party to this petition, therefore, no relief can be granted to petitioner. Furthermore, the World Bank is not a person as defined in Article 199(4) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, could not be subjected to the Constitutional jurisdiction of this Court. I am of the considered view that it is not within the permissible limits of interference for this Court, in the decisions of the respondent-NTDC, endorsed by the World Bank, to pre-qualification of respondent No.5. Such decisions fail within the realm of the Public Policy and the Courts in the exercise of their powers of judicial Review, ordinarily, do not interfere therewith and exercise judicial restraint, as has been held by the Hon'ble superior Courts of the country in a plethora of judgments. Thus, instant constitution petition is not maintainable.
Reference can be made to Cutting of Trees for Canal Widening Projects, Lahore: In the matter of Suo Motu Case No.25 of 2009 (2011 SCMR 1743), Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 SC 1), Messrs Power Construction Corporation of China Ltd. through Authorised Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others (PLD 2017 Supreme Court 83), Authorized Sardar Mohammad Ashraf D. Baloch Private Limited through Authorized Representative v.
Punjab Irrigation Department through Project Director and 6 others (2020 CLC 1303) and Messrs SPARCO Construction Company v. Province of Punjab and others (2021 CLC 515).
9. Needless to say that in such high cost projects, the financial institutions like the World Bank (IBRD and IDA) granting such huge loans always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and the procedure for granting the award must be duly adhered to.
10. Petitioner has drawn the attention of this Court towards letter dated 07.07.2022, issued by Ministry of Energy (Power Division), Government of Pakistan to respondent-NTDC, in response to a complaint made against respondent No.5, by observing certain discrepancies requiring to place the matter before Board of Directors of NTDC for an informed decision on a project of critical importance and emphasized that matter is still pending with respondent-NTDC without any decision. It is also the stance of petitioner that pursuant to petitioner's subsequent complaint lodged with the World Bank, the matter is also under inquiry with respondent-NTDC. It is observed that petitioner is at liberty to participate and pursue said lis / inquiries / proceedings and file appropriate applications / representations / replies in its defence along with documentary evidence, if any. The other contention of petitioner that the matter also needs to be referred and probed by NAB as well as Ministry of Industries does not inspire this Court to issue any formal direction in this regard as again petitioner can approach all relevant forums and avail all possible alternate remedies permissible under the law for redressal of its grievance.
11. So far as argument of learned counsel for petitioner that Pakistani law would prevail while conducting procurement process in question, this question has already been dilated upon by the Hon'ble apex Court in the case of Messrs Power Construction Corporation of China Ltd. supra, hence requires no fresh determination and is repelled accordingly.
12. In view of the above, instant petition is disposed of accordingly.
Order accordingly.
[1]It is located on the Indus River, about 240 km upstream of Tarbela dam. The total generation capacity of the project is 4320 MW, which is to be completed in two phases. Evacuation of power from the project is planned via a 254.6 km Double Circuit Hexa Bundle Transmission Line to be constructed from Dasu to Islamabad via Mansehra (Lot-I & II) along with a 765/220 KV Grid Station at Mansehra (Lot-III), and 765/500/220/132 KV Islamabad West Grid Station (Lot-IV). The Transmission Line from Dasu to Islamabad is divided into two lots: (a) Lot 1-Dasu to Mansehra (length 157 km); and (b) Lot 2-Mansehra to Islamabad (length 97.6 km).
2. For the financing of the Dasu Hydropower Stage I Project through Credits number 5497-PK and 5498-PK.
3. Reference Loan No. 9076-PK and Credit No. 5497-PK and Credit No. 5498-PK, for additional financing for the Project and amending the earlier Loan Agreement.