M UHAM M AD HASHIM KHAN KAKAR, J. Since common questions of law and facts are involved in both the aforementioned petitions, as such, we propose to dispose of the same through this common judgment. Both the Constitutional Petitions, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution'), carries the following prayer clause: "In the length and width of what has been discussed herein supra in detail is respectfully prayed that the petition in hand may kindly be accepted in the following terms: I. That Balochistan Public Procurement Regulatory Authority (respondent No.4) may kindly be directed to proceed with the procurements/bids electrically via e-bidding across the board without any discrimination in terms of financial threshold in order to promote fair competition among the bidders without any indulgence from the Government officials and Public representatives in any manner whatsoever.
II. That notification bearing No.FD.US (Procurement) 1-3/BPPRA/2020-21/785-3841 dated 28th of February, 2022, issued by the Government of Balochistan, wherein, Rule 11-A "Electronic Public Procurement" in Balochistan Public Procurement Rules, 2014, was inserted (which was superseded by notification dated 18th November, 2022), may kindly, be ordered to be restored/put infield.
III. That notification bearing No. FD.US(Procurement) 2-1/E-Procurement/2020-21/409-490/ dated 19th of April, 2022, wherein, the implementation of e-bidding was notified to be effective from 1st July, 2022, and onward, may kindly be put into operation as it has not yet been materialized.
IV. That the notification No. FD. US (Procurement) 2-1 /e-Procurement/2022-23/854-797 dated 18th of November, 2022, wherein, the threshold for e-bidding for works has been revised and enhanced from Rs. 50. 00/ million (as per notification dated 28-02-2022) was enhanced to Rs. 500. 00/ million till 30th June, 2023, and any other (if any) being whimsical, capricious and arbitrary may kindly be declared void ab initio and resultantly may kindly be ordered to be cancelled/withdrawn as having no any legal worth overtly or covertly in any manner whatsoever, in the interest of justice, Fair Play and Equity.
Any other relief deemed fit and proper by this Hon'ble Court may also be awarded, in the interest of equity, fair play and justice."
2. Briefly stated the facts of the case are that the petitioners are registered entities who look after the interests, betterment and welfare of the contractors of Balochistan. They represent the interests of almost all contractors of Balochistan and are duly registered with Pakistan Engineering Council (PEC). It is case of the petitioners that the Balochistan Public Procurement Regulatory Authority (BPPRA) for improving governance, management, transparency, accountability and quality of public procurement with the aim to monitor application of the laws, rules, regulations, policies and procedures in respect of and relating to the public procurement for the procurement of works, goods and services, decided.to switch from manual procurement to e-bidding, which facilitates them to monitor and control their procurement processes across the province. In this respect, Rule 11-A was inserted in Balochistan Public Procurement Rules 2014, vide, notification bearing No.FD.US (Procurement) 1-31/BPPRA/2020-21/785-3841, dated 28-02-22, whereby all the procuring agencies were required to carry out procurement process by using Electronic Public Procurement System developed by the Authority. The agencies were bound to electronically receive bids for all procurement of works over Rs. 50, 00 Million, Goods over Rs. 5.00 Million, Services over Rs. 1.00 Million and Consultancy over Rs. 1.00 Million through the Electronic Public Procurement System in accordance with the regulations or guidelines to be prescribed by the Authority from time to time.
Initially, the notification dated 28-2-2022 was modified on 19-04-2022 and the implementation of e-bidding was made effective from 1st July, 2022 and onwards. On 18th November, 2022, office of the Respondent No.3 once again through another notification bearing No.FD.US (Procurement) 2- 1/e-Procurement/2022-23/854-979 modified the above notifications to the extent of threshold of e-bidding for works and revised the same by enhancing the threshold for the works from Rs.50.00 million to Rs. 500.00 million till 30th of June, 2023.
3. We have heard the learned Additional Advocate General, Balochistan as well as Mr. Ishaq Nasar, learned counsel appearing on behalf of the petitioners and have gone through the case record.
Facts of the matter are not in dispute and in any event have briefly been repeated.
4. Dispute between the parties is regarding to the implementation of Rule 11-A of Balochistan Public Procurement Rules 2014, which reads as under: "11-A. Electronic Public Procurement-The Procuring Agencies shall carry out procurement process by using Electronic Public Procurement System developed by the Authority, in such manner as to cover all aspects of the procurement proceedings. Procurement Agencies shall electronically receive bids for all procurements of Works over Rs.50.00 Million, Goods over Rs. 5.00 Million, Services over Rs.1.00 Million and Consultancy over Rs. 1.00 Million through the Electronic Public Procurement System in accordance with the regulations or guidelines to be prescribed by the Authority from time to time".
5. E-bidding, also known as Electronic Bidding refers to the process of conducting bidding or auction activities electronically through the use of internet-based platforms or software. E-bidding platforms provide a virtual space where buyers and sellers can participate in competitive bidding for goods, services or projects. It offers several advantages, such as; increased efficiency, wider participation, cost savings, enhanced transparency and streamlined processes. It eliminates geographical limitations and allows for remote participation, making it convenient for buyers and sellers from different locations to engage in bidding activities.' Its benefits can be described in qualitative, and quantitative terms. The quantitative benefits generally results in reported savings ranging between 5% to 20%. According to Annual Report 2021-2022 of BPPRA during the financial year a total of 16596 tenders amounting Rupees 262 Billion were processed, out of these 14746 (88.85%) were completed. Even if it is assumed only 1 % saving was made for Balochistan, this would mean approximately 2620 Million per year saving for the downtrodden people of the province.
6. On the contrary, the traditional paper based/ manual public procurement process is marred by inherent problems of inefficient procedures, incomplete management of information, high cost of compliance both for public sector departments and contractors/ suppliers/ consultants, a profound lack of transparency and inferior methodologies. The bidders in traditional procurement system are required to visit government offices to submit a bid, which is immensely prone to various collusive and corrupt practices from those who engaged in the bidding processes. Some well-connected bidders for local public contracts could manage to deprive non-collusive bidders from submitting bidding documents and courts are flooded with the cases regarding such disputes.
7. Keeping in view the above mentioned situation, e-procurement system in Baluchistan was implemented on 01-03-2022. The BPPRA developed its e-procurement system with in-house domain expertise of CIPS qualified, database and IT professionals. The software development was coupled with necessary legislation in the form of requisite amendments in BPPRA Act and framing of Rules; with financial threshold for e-procurement of works, Goods and Services above Rs. 50.00 M and Rs.1.00 respectively. Out of total number of completed tenders 14746 during last financial year, as per Annual Report of BPPRA for year 2021-22, 6521(44.22%) were processed on new procurement system and remaining 8225(55.78%) on old MIS.
8. The newly introduced e-procurement system in province of Baluchistan appears to be a comprehensive end-to-end system, covering all procurement types and stages prescribed under BPP Rules. The major departments during last financial year 2021-2022 processed successfully their tenders on new e-procurement system, with the following details: S# Department Total AmountDetails Of Processed Tenders Total NumberProcessed on old MIS (%)Processed on new e- procurement (%)
1 C&W 97.00 3035 1399 (46.0%) 1643 (54.0%)
2 PHE 16.800 5972 3371 (56.5%) 2596 (43.50%)
3 Irrigation 51.00 430 276(68.14%) 137 (31.86%)
4 Agriculture 9.00 241 136 (56.85%) 104 (43.15%)
5 Health 23.00 320 142(46.5%) 168(52.5%)
6 Local Government8.570 734 376 (41.23%) 358(48.77%)
7 Development Authorities7.100 184 61(33.15%) 123 (66.85%)
8 Secondary Education9.200 1964 1108 (56.42%) 856 (43.58%)
9. The above mentioned data of processed tenders shows that e-procurement system in one single financial year has been utilized for about half of tenders processed during year, which is indicative of not only its success and hassle-free functioning, but also nullifies excuses for any technical or logistic issue related to new e-procurement system.
10. There is another important aspect of the case i.e. new schemes included in PSDP 2022-2023 in light of impugned Notification dated 18th November through which a financial threshold of above Rs. 500.00 M estimated cost was prescribed for bids to be processed through new e-procurement system. If this financial threshold is practiced, then following will be the situation for works schemes: Department Total Number of new SchemesFulfilling above Rs.500.00 M threshold be processed Through new e-procure-ment system C & W 818 09 Physical Planning and Housing46 00 PHE 968 01 Irrigation 346 02 Energy 137 03 Local Government 540 00 Secondary Education 226 03 Agriculture 75 04 Higher Education 11 04 Health 65 00 Sports 48 00 UP&D 50 00 Social Welfare 20 01 S&GAD 02 01 Religious Affairs 30 00 Science and IT 01 00 Information 02 00 Labor and Manpower 02 00 Livestock 08 00 Minorities Affairs 23 00 Multi Department 03 01 GDA 01 01 Environment 01 00 Culture and Tourism 15 00 Home Department 03 01 P&DD 01 00
11. The perusal of above table would show that out of 818 schemes of C&W department only 09 and in PHE, out of 968 schemes only 01 scheme will qualify to be processed on new e-procurement system, likewise in other departments.
12. There is no cavil to the proposition that e-bidding is an advanced, fool proof secured procurement system free from all encumbrance and indulgence of Government officials and public representatives, further, guarantees a fair competition among the bidders and thus, brings the real value of public money in terms of services on one hand and on the other hand it saves public money. It is also worth mentioning that the BPPRA,2009, envisaged section 26 regarding removal of difficulties arising in giving effect to any of the provisions of the Act, 2009 by the Government. Considering the impugned Notification on the touch stone of sections 4, 26 and 27, it basically creates the difficulties rather eradicating the same and is inconsistent with the provisions of the Baluchistan Public Procurement Regulatory Authority Act No.8 of 2009 and Baluchistan Public Procurement Rules, 2014.
For the reasons, mentioned above, the impugned notification bearing No. FD. US (Procurement) 2- 1/e Procurement/2022-23/854-797 dated 18th of November, 2022, wherein, the thresh hold for e- bidding for works has been revised and enhanced from Rs. 50.00 M to 500.00 M till 30th June, 2023 being arbitrary is hereby declared void, ab-initio and cancelled.