NAEEM AKHTAR AFGHAN, C.J. This judgment disposes of C.P. No.757/2021.
2. Relevant facts are that Notice Inviting Tender was issued in newspapers by Secretary Communication Department, Government of Balochistan ('GoB') (respondent No. 1) for procurement of 07 different works for construction of roads (hereinafter "the subject works"). The petitioner has challenged the requirement of submitting Bid Security of 2% in the shape of Bank Guarantee/Deposit at Call (CDR) by the participating contractors/firms by filing the instant constitution petition with the following prayer: "In view of the above factual position and under the circumstances, it is, therefore, prayed on behalf of the Petitioners that this Honourable Court may graciously be pleased to issue appropriate directions to the Respondent in as much as: a) Direct the Respondents Nos. 1 and 2 to accept the Insurance Guarantees from a AA ranking Insurance Company for the above seven Projects from the Petitioners; b) Declare that Respondents Nos. 1 and 2's condition based on Rule 29 of the BPPRA Rules is illegal, ultra vires to the Constitution of the Islamic Republic of Pakistan, 1973 as well as PEC (Respondent No.3) and Planning Commission Regulations. c) The Bid submission date may kindly be extended for suitable period as from the date of issuance of Notice of Tenders (Annexures F to I) there was complete lockdown by the respective governments due to Covid-19 phenomena which is special circumstance and the one-week period due to holidays is in any case extendable under the law. d) The Respondents may kindly be directed to ensure that all eligible bidders have a right to participate and make the best possible economical use of the tax payer's money and to act in accordance with law. e) Till acceptance by the Respondents Nos. 1 and 2 of the Insurance Guarantees from the Petitioners, the process of Bidding may kindly be stopped or alternatively the Petitioners be allowed to submit their bids with Insurance Guarantee till the final outcome of this Petition. f) Grant cost of the Petition. g) Any other relief this Honourable Court may deem proper and appropriate under the facts and circumstances of the case.
INTERIM RELIEF Pending disposal of the instant Petition, this Honourable Court may very graciously be pleased to restrain the Respondent from proceeding further in all seven Bids till final disposal of the instant petition".
3. The petition was taken up for preliminary hearing on 17.05.2021. On the said date pre-admission notices were issued to respondent No.1, Executive Engineer Communication Department GoB (respondent No.2), Pakistan Engineering Council ('PEC') (respondent No.3) and learned Advocate General.
In view of the contentions raised by learned counsel for the petitioners, the constitution petition was admitted for regular hearing on 18.05.2021 and notices were issued to learned Attorney General of Pakistan as well as to learned Advocate General of Balochistan under Order XXVIIA, C.P.C.
4. Keeping in view Clause 15.2 of the Standard Form of Bidding Documents (Civil Works) prescribed by respondent No.3 on 11.06.2007, approval of the same by Executive Committee of National Economic Council ('ECNEC') constituted under Article 156 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution") and Instructions to Bidders issued by respondent No.3, while passing order on C.M.A No.1519/2021 on 18.05.2021, the petitioners Nos: 2 to 5 were permitted to furnish Bid Security of 2% for the subject works in the shape of insurance bonds of insurance companies having at least AA rating from PACRA/JCR in favour of the Employer.
5. While contesting the constitution petition, respondents Nos.1 and 2 filed counter affidavit in office on 24.05.2021.
6. On 07.07.2021 learned counsel for the petitioners stated that though, for the time being, the grievance of the petitioners has partly been redressed in pursuance of interim order passed by this Court, however the petitioners are pressing the instant constitution petition for amendment of Rule 29(1) of Balochistan Public Procurement Rules, 2014 (hereinafter "BPPR 2014").
7. After hearing learned counsel for the petitioners, learned Additional Attorney General, learned AAG and learned counsel for respondent No.3, we have perused the available record. Rule 29(1) of BPPR 2014 reads as follows:
8. "29. Bid Security.---(1) The Procuring Agency shall require the bidders to furnish bid security of two per cent in case of procurement of all bids in the form of bank guarantee or Deposit at Call from a scheduled Bank".
8. In Sindh Public Procurement Rules, 2010, Rule 37 relating to Bid Security requires the bidders to furnish Bid Security not below 1% and not exceeding 5% of the bid price without specifying for Bank Guarantee or Deposit at Call from a Scheduled Bank or insurance bond of an insurance company having at least AA rating from PACRA,/JCR.
9. In Khyber Pakhtunkhwa Public Procurement of Goods, Works and Services Rules, 2014, Rule 20 relating to Bid Security requires the bidders to furnish Bid Security of 2% without specifying for Bank Guarantee or Deposit at Call from a Scheduled Bank or insurance bond of an insurance company having at least AA rating from PACRA/JCR.
10. In Punjab Procurement Rules, 2014, Rule 27 relating to Bid Security requires the bidders to furnish Bid Security not exceeding 5% of the bid price without specifying for Bank Guarantee or Deposit at Call from a Scheduled Bank or insurance bond of an insurance company having at least AA rating from PACRA/JCR.
11. In Public Procurement Rules, 2004 (pertaining to Federal Government), Rule 25 relating to Bid Security requires the bidders to furnish Bid Security not exceeding 5% of the bid price without specifying for Bank Guarantee or Deposit at Call from a Scheduled Bank or insurance bond of an insurance company having at least AA rating from PACRA/JCR.
12. Section 8(1) and (p) of Pakistan Engineering Council Act, 1976 (hereinafter "PEC Act") relating to functions of PEC, reads as follows: "8. Functions of the Council. ---The following shall be the functions of the Council, namely:-
(a) ...............
(b) ...............
(c) ...............
(d) ...............
(e) ...............
(f) ...............
(g) ...............
(h) ...............
(i) ...............
(j) ...............
(k) ...............
(l) assistance to the Federal Government as a Think Tank;
(m) ...............
(n) ...............
(o) ...............
(p) establishing standards for engineering contracts, cost and services;
(q) ...............
(r) ...............
(s) ...............
(t) ...............''
13. Clause 15.2 of the Standard Form of Bidding Documents (Civil Works) dated 11.06.2007 issued by PEC [available on the websites of PEC and Public Procurement Regulatory Authority ('PPRA')} reads as follows: 15.2 The Bid Security shall be, at the option of the bidder, in the form of Deposit at Call or a Bank Guarantee issued by a Scheduled Bank in Pakistan or from a foreign bank duly counter guaranteed by a Scheduled Bank in Pakistan or an insurance company having atleast AA rating from PACRA/JCR in favour of the Employer valid for a period 28 days beyond the Bid Validity dates".
14. The above Standard Form at Bidding Documents (Civil Works) dated 11.06.2007 issued by PEC has been approved by ECNEC (constituted under Article 156 of the Constitution) in its meeting dated 12.11.2007 and has also been notified in the official Gazette by Planning Commission, Government of Pakistan ('GoP') vide Notification dated 12.02.2008 and it is mandatory for all engineering organizations, departments at Federal and Provincial levels and District Governments to use the above Standard Form of Bidding Documents for procurement of Civil Works funded locally or through donor agencies.
15. Surprisingly, in bidding documents of different projects in the Province of Balochistan, GoB issues interest free mobilization advance to the successful bidders for the projects against guarantee for the full amount of mobilization advance from a Scheduled Bank or an insurance bond from an insurance company having at least AA rating from PACRA/JCR, but Rule 29(1) of BPPR 2014 does not provide option to the bidder to furnish bid security of 2% in the shape of insurance bond of an insurance company having at least AA rating from PACRA/JCR in favour of the Employer.
16. In view of all the above, it is concluded that Rule 29(1) of BPPR 2014 is in contradiction to Sindh Public Procurement Rules, 2010, Khyber Pakhtunkhwa Public Procurement of Goods, Works and Services Rules, 2014, Punjab Procurement Rules, 2014, Public Procurement Rules, 2004 (pertaining to Federal Government) and it is not in conformity with Clause 15.2 of the Standard Form of Bidding Documents (Civil Works) dated 11.06.2007 issued by PEC which has been approved by ECNEC in its meeting dated 12.11.2007 and also been notified in the official Gazette by Planning Commission GoP vide Notification dated 12.02.2008 and it has an obligatory effect/is mandatory for all engineering organizations, departments at Federal and Provincial levels and District Governments for procurement of Civil Works.
17. According to Article 143 of the Constitution, in case of conflict between Federal and Provincial enactments, privilege of overriding supremacy is conceded to the Parliament/Federal legislature.
Reliance in this regard is placed on the cases of Pakistan Telecommunication Co. Ltd. v. Member NIRC 2014 SCMR 535 and Federal Government Employees Housing Foundation v. Ghulam Mustafa 2021 SCMR 201.
For the above reasons, the constitution petition is accepted and direction are issued to Chief Secretary GoB, Secretary Finance GoB, Secretary Services and General Administration Department GoB, Secretary Law and Parliamentary Affairs Department GoB and Managing Director Balochistan Public Procurement Regulatory Authority to suitably amend Rule 29(1) of BPPR 2014 and bring the same in conformity with procurement rules of sister Provinces, Federal Government and with the Standard Form of Bidding Documents (Civil Works) dated 11.06.2007 issued by PEC.
Copy of the judgment passed today be also sent to Principal Secretary to Chief Minister GoB.