Anwaar Hussain J: Briefly stated facts of the case are that the petitioner along with respondent No.6 participated in the tendering process floated by respondent No.5, Jinnah Hospital, Lahore ("Procuring Agency"), inter alia, for the purchase/procurement of medical devices for the financial year 2024-25, in which the tender submission date was 14.05.2024. The petitioner submitted its tender against tender enquiry pertaining to surgical gloves (Sterile) sizes 6.5, 7.0, 7.5 and 8.0. The Technical Evaluation Committee ("TEC") held its meeting on 22.08.2024 and the petitioner was held successful in the TEC process/procedure, however, the proposal of respondent No.6 was declined/rejected due to non-fulfillment of compulsory parameters/requirements, envisaged under the eligibility criteria of the tender documents. Respondent No. 6 approached the Grievances Redressal Committee ("GRC") in terms of the Punjab Procurement Rules, 2014 ("PPRA Rules"), which rejected the grievance of respondent No.6. Thereafter, respondent No.6 approached respondent No.1, Punjab Public Procurement Regulatory Authority ("PPRA") and decisions of the TEC, as also the GRC, were set aside. Hence, this constitutional petition.
2. Learned counsel for the petitioner submits that the impugned order dated 27.01.2025 passed by respondent No.1 is illegal and beyond the applicable Rules, which have awfully changed the substance and structure of the bidding evaluation criteria by way of allowing respondent No.6 to participate, while accepting the post-dated documents submitted by said respondent.
3. Conversely, learned counsel for the respondents, as also the learned Law Officer submit that when the law itself provides that the Procuring Agency and/or the Authority can seek clarification regarding the bids, anything contained in the bidding documents prepared by the Procuring Agency cannot have an overriding effect.
4. Arguments heard, record perused.
5. Admittedly, as per the bidding documents, any bidder who fails to meet compulsory parameters/requirements was liable to be declared as non-responsive. The parameters/requirements described as compulsory in the bidding documents and which were not complied with by respondent No.6 before the last date of submission of bid, are as follows: "k. The firm will submit undertaking on Rs 100 stamp paper that none of its supplied batch in Private Sector and Public Sector has been declared Spurious/Adulterated by DTLs of the Punjab/any Competent Lab since last 3 years till the closing date of Tender Document submission. l. Undertaking regarding 'Non-Declaration of any Spurious/Adulterated Batch of quoted item manufactured/supplied by firm by DTLs of the Punjab/any Competent Lab' on valid Rs 100 stamp paper duly verified by notary public. m. The firm will submit undertaking on Rs 100 Stamp paper legalized/notarized that Firm has not been prosecuted by Provincial Quality Control Board (PQCB) on the offence of Spurious/ Adulterated Medical Devices. n. The firm undertakes that currently it is not Blacklisted/Debarred by Procuring Agency on valid Rs 100 stamp paper duly verified by notary public. o. The firm will undertake on notarized stamp paper of Rs 100 that the firm will be bound to supply the stock in compliance to SRO 470(I)/2017 subject to requirement of the department."
It is an admitted feature of the case that respondent No.6 did submit the above referred documents albeit were not contemporaneous and issued in the year 2022 and hence, were rejected and the bid of respondent No.6 was declared as non-responsive. Respondent No.1/the Managing Director, PPRA, allowed respondent No.6 to participate and submit the said documents after expiry of the date of submission of the bids. The impugned order was passed on the basis of Rule 33(2) of the PPRA Rules, which reads as under: "(2) The procuring agency 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 core issue arising for determination is whether respondent No.6, who had initially failed to submit affidavits/declarations that were deemed compulsory under the bidding documents, could subsequently cure this omission under the ambit of Rule 33(2) of the PPRA Rules. Put otherwise, whether these deficiencies were procedural or substantive.
6. This Court finds no error in the reasoning adopted by respondent No.1. The affidavit/declaration/undertakings which respondent No.6 failed to submit strictly in accordance with the requirements did not impact the technical or financial content of the bid. There is a marked distinction between changing the substance of a bid (such as price or type/brand of the product) and supplying missing declarations of eligibility, especially when the factual content of those declarations was not disputed. At this juncture, it is imperative to note that not all compulsory parameters/requirements carry equal weight in terms of their impact on the substance and structure of the bid. The following compulsory parameters were also envisaged under the bidding documents regarding which there is no dispute: a. Submission of up to 2% bid security; b. Valid Drug Manufacturing/Sale License and Establishment Registration Certificate; c. Valid Drug Registration or Enlistment Certificate as per Medical Devices Rules, 2017; d. Valid GMP certificate or Satisfactory GMP Inspection Report; e. Minimum annual financial turnover of Rs. 165 million supported by tax documents; f. Valid Sole Agency Agreement (for importers); g. Valid ISO 13485 certification; h. Valid CE/UNFPA/JpMHLW/US FDA/WHO prequalification certification issued by competent authorities; i. Valid Free Sale Certificate duly notarized/legalized; j. Minimum three years' experience of supplying the quoted item to public sector institutions--are essential in assessing the bidder's technical and financial competence, product quality, and regulatory compliance and therefore have a direct bearing on the substance of the bid.
A comparative analysis reveals that these parameters/requirements significantly affect the competitive standing, substance and structure of the bid. In contrast, the documents required under Sr. Nos. (k) to (o) are affirmations of legal and regulatory compliance rather than technical or commercial commitments that affect competition. Their absence at the initial stage, unless demonstrably dishonest or misleading, cannot be construed as changing the substance of the bid.
When viewed in juxtaposition, it becomes evident that the latter set of parameters/requirements (k to o) does not impact the bid's substantive merits. As such, deficiencies in those requirements may be addressed through post-bid clarifications, which is permissible under Rule 33(2) of the PPRA Rules, provided such clarifications do not change the essence of the bid.
7. It is imperative to state that the procurement regime must balance the principles of fairness and transparency with procedural practicality. Rule 33(2) of the PPRA Rules permits flexibility to cure such procedural deficiencies, provided the core integrity and competitive standing of the bid remain unaffected. Here, the supplemental documents neither granted undue advantage to respondent No.6 nor undermined the fairness of the bidding process. It has been brought to the notice of this Court that the PPRA has already been issuing advisories to the procuring agencies recommending that such procedural undertakings or declarations should not be categorized as mandatory requirements capable of rendering a bid non-responsive. In view of this, it is expected that procuring agencies shall revisit their bidding documents so as to distinguish between procedural compliance and substantive eligibility. In the instant case, while passing the impugned order, the PPRA has proactively performed its regulatory role to ensure uniformity and prevent unnecessary disqualification of bids on procedural grounds alone.
8. In view of the above, the decision of respondent No.1 to permit respondent No.6 to cure the defect by filing the requisite declarations, at a later stage, does not amount to a substitution or alteration of the original bid. It merely regularizes a procedural lapse consistent with Rule 33(2) of the PPRA Rules and in conformity with the spirit of competitive procurement. Consequently, the impugned order dated 27.01.2025, does not suffer from any legal infirmity. This petition, being devoid of merit, is dismissed. No order as to costs.