' This mini-trade war rages over supplying of a mini-liquified Petroleum Gas Plant to Oil and Gas Development Corporation (OGDC), a corporation set up under the aegis of Oil and Gas Corporation Ordinance, 1961. The plant is to be installed at an OGDC operated oil-field in Fimkassar, a small village located in the backyard of Punjab in the District of Chakwal about 60 K.Ms. Away from Islamabad.
2. OGDC successfully struck oil in Fimkassar. But when oil is recovered from earth, it does not come out alone; with it comes gas also. The more affluent flare it away but the less plentiful put it to a better use by compressing and filling it in gas cylinders to be burnt in homes. About Rs, 4 lacs worth of gas was (and is) going up in flames every day at Fimkassar and the OGDC planned to adopt the second option. As out-put projections warranted a mini-LPG Plant only, the OGDC invited bids in January 1993, from Manufacturers/Stockists of the eligible source countries for supply of Mini-LPG Plants. The invitation to bid (Annexure "A") for convenience, is reproduced here:--- "INVITATION TO BID FOR PROCUREMENT OF MINI LPG PLANT:
(1) Sealed technical and financial proposals are hereby invited under International Competitive Bidding Procedure from the Manufacturers/Stockists of the Eligible Source Countries for supply of MINI LPG PLANT.
(2) The proposals must be irrevocable based on from FOB and C&F Karachi by sea. Prices should remain valid for at least 120 days from the date of opening of Tender.
(3) The bidders are required to submit a bid bond along with commercial proposal in shape of Bank Guarantee, Pay Order. Demand Draft of Cash Deposit to the extent of 2% (Two per cent.) of total C&F value of the bid, valid for 150 days, as per tender documents and furnish a certificate with technical proposal that the required bid bond is submitted.
(4) The successful bidders will be required to furnish a performance Bank Guarantee to the extent of 1.0% of total contract value as per tender documents.
(5) The sealed technical and financial proposals along with technical literature must be dropped in the sealed tender box kept in the Office of Dy. Chief Procurement (Foreign), Oil and Gas Development Corporation, Building No,14-Q, Markaz F.8, Islamabad (Pakistan), on or before March 15, 1993 up to 10-30 hours, Pakistan Standard Time (deadline for submission proposals).
(6) The sealed technical proposal for the subject material will be opened on March 15, 1993 at 11-30 hours in presence of the bidders or their authorised representatives who may wish to attend the bid opening. The financial proposals whose technical proposals have been accepted will be opened on the date and time decided upon and announced."
3, A dozen concerns responded to OGDC invitation and submitted bids on two envelope system; one containing the Technical Proposals and the second, the Commercial Proposals. The OGDC was to process the Technical Proposals first, and commercial proposals were, thereafter, to be confined to only those bidders who would pre-qualify on the basis of technical proposals. March 15, 1993 deadline for submission of bids was extended to 29th April, 1993 when the bids for technical proposals were opened in the presence of parties. The evaluation of bids resulted in rejection of all bids excepting those of: M/s. Seemba Wang Singapore M/s. Presson Canada M/s. Petrosin Singapore ' who were found to be technically responsive bidders, or to use a more earthly phrase, technically suitable. M/s. Petrosin like other firms were informed by OGDC through a Fax message dated 19- 84993 that they had been technically selected, and invited the Firm to attend the bid-opening of Commercial Proposals on 28-8-1993. The document of commercial bids revealed the following FOB prices quoted by the technically responsive bidders:--- M/s. Semba Wang Singapore US $ 9,383 Million M/s. Presson Canada US $ 5,852 Million M/s. Petrosin Singapore US $ 5,143 Million ' Bid of M/s. Petrosin turned out to be the lowest of all the three firms.
4. The battle between the lowest and second lowest bidder heated up after the commercial bids were opened. M/s. Presson found a mentor in the Ministry of Petroleum and Natural Resources, under whose administrative control OGDC is and on their asking/OGDC submitted a report on 11- 10-1993 with covering letter of the same date which reads: "Mr. Khurshid Anwar, Deputy Secretary, Govt. Of Pakistan Ministry of Petroleum & Natural Resources, Islamabad.
' Sub: OGDC'S FIMKASSAR MINI LPG FACILITY TENDER ENQUIRY PROC = WF/PROCESS-331 FIMKASSAR 1/92.
' This is with reference to your letter No, 6(157)/93-II dated 5-10-1993 on the above subject. The doubts raised by M/s. Presson on experience, capability and responsive of M/s Petrosin were critically reviewed and a brief report is attached for your information. Processing of the case has been completed and the job is ready for award to the financially lowest responsive bidder.
(Sd.)
(Arif Kemal), Executive Director (P&E)."
' In para. 3 of the report submitted by OGDC along with the above letter it is stated: "M/s. Petrosin turned out to be lowest technically responsive bidder being cheaper by US $ 7,09,000 (Rs,21.27 Million at exchange rate of Rs,30 to a dollar) as compared to the second lowest bidder. No objections or comments were received from M/s. PRESSON on the criteria for evaluation of responsiveness of the three bidders until commercial bids were opened and prices were known."
' In paragraph 4, it was stated thus: "4. Referring to the technical and engineering capability of M/s. Petrosin it is to be stated that M/s. Petrosin have been a supplier of various processing plants to OGDC for several years and there is no evidence to justify PRESSON'S statement of petrosin not having in-house engineering capability...."
' After mentioning names of various manufacturers which M/s. Petrosin had advised the OGDC to be banking upon, the report says: "All the above manufacturers by Petrosin are well known manufacturers of International standing and repute having more than 10 years experience."
5. This report probably did not satisfy the Ministry of Petroleum and Natural Resources (Hereinafter, the Ministry) and quite an inquest followed wherein OGDC sought, during October-December, 1993 considerable clarifications from Petrosin about its inception, its capabilities and standing. While OGDC was carrying out this exercise, the Ministry by a letter dated 6-11-1993 (Annexure "D.3" with rejoinder) asked the OGDC that since M/s. Petrosin was not qualified in terms of tender enquiry, the OGDC "may not award the contract to M/s. Petrosin under these circumstances." The OGDC was advised: "If not barred by the tender procedures, OGDC may consider the next lowest, technically qualified bidder to avoid delay which would be involved in re-tendering."
' OGDC in response to this directive informed the Ministry vide letter dated 15-11-1993 about 10 years' experience of Petrosin and stated that Petrosin was listed among OGDC preferred vendors which formed part of Fimkassar tender documents and advised the Ministry: "Since Petrosin is supplying major manufactured equipment of suitable vendors having 10 years of manufacturing experience, and it is also pre-qualified for pressure vessels as per tender documents and also being commercially lowest bidder, it cannot be legally debarred for award of contract for Fimkassar LPG Plant. Under such circumstances, retendering cannot be applied legally, and if this exercise is undertaken, there is likelihood for delay of at least one year in the installation of Fimkassar LPG Plant."
6. The Secretary of the Ministry, in order to stop this internecine was constituted a committee consisting of Joint Secretary (Dev), D.G. (Gas), D.G. (PC), Chairman OGDC and Executive Director
(EP) OGDC. The committee unanimously decided to award the contract to M/s. Petrosin vide report dated 26-1-1994 (R.III with the written statement filed by respondent No,2) which reads as: Confidential Islamabad 26th January, 1994.
' A committee constituted by the Secretary, Ministry of Petroleum and Natural Resources consisting of J.S. (Dev) DG (Gas), DG (PC), Chairman OGDC and Executive Director (E&P) OGDC reviewed the working paper prepared by OGDC (copy attached), ITB documents, original offers of the two bidders M/s. Presson and Petrosin and letters of OGDC to M/s. Presson advising them to match their bid price to that of the lowest evaluated bidder without any change in the scope of work as given in their bid in line with the ITB requirement and thereof the response of M/s. Presson.
(2) J.S. (Dev) stated his doubts about the eligibility of Petrosin (which was to supply some 10 to 15 per cent. Of the equipment) since it did not have the minimum, stipulated manufacturing experience. The representatives of OGDC categorically stated that Petrosin was eligible since it was included in the "preferred List of Vendors" in the ITB documents and therefore the company is considered to have met the technical specifications.
(3) In view of the above the committee unanimously agreed with OGDC's view that M/s. Presson failed to match their bid price to that of lowest evaluated bidder without change of scope of work and that M/s. Petrosin, vide their Telex No,PET/7116 dated December 31, 1993 have confirmed that they shall place order for pressure wessels in accordance with OGDC tender and that a manufacturer meeting OGDC's acceptance and Petrosin will obtain OGDC's approval before placement of this order the contract for the supply of LPS plant for Fimkassar be awarded to M/s. Petrosin, the lowest evaluated bidder. Jehangir Bashir Dr. Gulfraz Ahmad, J.S. (Dev.) Chairman OGDC Muneer Ahmad Arif Kemal DG (Gas) ED (E&P) OGDC Shahid Ahmed DG PC."
7. The Ministry refused to oblige and advised the OGDC to award the contract to second lowest bidder vide letter dated 26-12-1993 (R/V), and later by a letter dated 15-2-1994 (R-V/5) virtually ordered that "OGDC should negotiate and award the contract to the second lowest bidders but eligible company, M/s. Presson of Canada. Feeling the squeeze, OGDC invited M/s. Presson to renegotiate the terms and conditions of the contract in order to match the price quoted by M/s. Petrosin. Negotiations followed, minutes whereof are placed with the petition and M/s. Presson offered a discount of US$ 135,000 to OGDC. While this was going on in the cool offices of OGDC, M/s. Petrosin filed Writ Petition No,164/94 in this Court seeking intervention in the matter. Interim relief was granted on 7-3-1994 in terms that the contract might not be awarded to any party if fait accompli had not occurred till then. Later the writ petition was disposed of with the following order on 7-5-1994: "Dispute in this Constitutional petition arises out of the proceedings for grant of contract for installation of a mini-LPG plant at Fimkassar, 60 miles towards South East from Rawalpindi, which contract is to be granted by the respondents Nos.1, 2, after the receipt of various bids and processing thereof, presently there are two bidders left in the field, namely the petitioner and the respondent No,3 who are contesting for grant of the aforementioned contract.
(2) Before a final decision could be taken by respondents Nos.1, 2 in the matter, the petitioner filed this Constitutional petition claiming therein that he having offered the lowest rate is entitled to the grant of contract in question and respondents Nos.1, 2 have no lawful authority to the grant of the same to respondent No,3 who had offered higher rates.
(3) After filing of replies by the respondents and rejoinder thereto preliminary arguments have been heard. During the course of arguments it has been admitted by the learned counsel for both the parties and is also clear from the original record produced before me, that issue of grant of contract has not finally been decided as yet.
(4) In view of the above factual position after arguing this case at some length under instructions from their clients, learned counsel for all the parties agree and pray that issue of grant of contract the question shall be finally decided by the competent authority within three weeks w,e,f, today, after giving full opportunity of hearing to the parties, who may raise all the objections/contentions available to them under the law including the objections/contentions which have been raised in the pleadings of the present Constitutional petition, orally and if they so desire in writing as well.
Order accordingly. Writ petition stands disposed of/decided in the above terms. As the main writ petition has been fully decided/disposed of, stay order granted by this Court vide order, dated 7-3- 1994 stands vacated.
(Sd.) JUDGE."
8. After the decision of Writ Petition No,164 of 1994, a five-member committee was constituted to decide the issue in terms of order dated 7-5-1994 of this Court. The report of the Committee, at pages 42--50 of the petition favoured M/s. Petrosin by 4:1 and recommended that "contract may be awarded to the lowest bidder namely M/s. Petrosin." Some excerpts relevant to submissions of the parties, from the report dated 27-6-1994:--- Para.9.Ii.
' The bidding procedure was generally followed by the OGDC.
(iii) The provisions of clause 2.3 under instructions to bidders are vague and are contrary to the vendor list which is part of ITB and also are not part of summary rejection criteria. Further, clause 2.3 does not provide that a bidder should be a manufacturer. It provides that manufacturer of the goods being quoted must have at least 10 years' experience in the designing and manufacturing of the items. Iv (b) Instructions to bidders particularly clause 2.3 was not considered by OGDC as a criteria for determination of responsiveness of the biddeRs, Even M/s. Petrosin and PRESSON did not mention about their experience in the summary while submitting their proposals as required under clause 2.3 of ITB.. " iv (d) Criteria for minimum acceptance level have not been defined in the bid document. Iv (e)
Comparative statement showing strength, weaknesses and deviation of the respective bidders was not established.
(10) Both the partied were suggested to submit their commercial bid afresh on the same scope of work. M/s. PRESSON did not agree to their offer while M/s. Petrosin agreed with the proposal.
(11) the committee is of the view that provision of clause 2.3 are not part of summary rejection criteria.
(13) The main objection of M/s. PRESSON in the oral and written statement is that M/s. Petrosin is not eligible/qualified for bidding which is not valid on the basis that provisions of clause 2.3 are not part of summary rejection criteria. Further, M/s. Petrosin have submitted the list of hydrocarbon plant and equipment as required under clause 14 of the summary rejection criteria. Each issue raised by M/s. PRESSON against M/s. Petrosin has no merit for disqualification and have been clarified in the findings of the committee detailed in Annexure `A'."
' Along with the report, a paper containing detailed discussion of various issues raised by M/s. PRESSON and M/s. Petrosin was also enclosed. One member of the committee, Deputy Secretary of the Ministry dissented from the other four members of the committee. His opinion reads as under:- --
(a) To gloss over this issue and to set new ground rules by inviting fresh bids from only these two companies without defining the parameters is not correct.
(b) Clause 2.3 of tender document clearly states that "Manufacturers of the goods being quoted must have at least 10 years' experience in the designing and manufacturing of the items".
Documents in support of the above must be submitted with the bid.
(c) According to OGDC, M/s. Petrosin would manufacture 10-15% of the critical components (e.g. Pressure vessels) of the LPG plant. Petrosin did not have the prescribed experience. The list of plant Petrosin provided to OGDC (after opening of the bids) did not show a single complete LPG plant.
Although it was included in the list of preferred vendors which was an annexure to the main document) it did not meet the basic eligibility criteria described above even if it is given the benefit of the period when it was a division of another company.
(d) Petrosin confessed (during discussions) that clause 2.3 of the bid document was not complied.
However, they presumed that it was not required as their name was included in the "preferred vendor list." Documents in support were not presented.
(e) Petrosin had supplied three dehydration plants (which simply remove associated water from gas). The plants are not classified as Hydrocarbon Proceedings Plants which include LPG plants also.
(f) The evaluation should not be based on only summary rejection criteria. Other instructions to bidders should also be followed strictly.
(Sd.)
(Khurshid Anwar), Deputy Secretary (D), Member 27-6-1994."
' In pursuance of the report OGDC notified award of contract to M/s. Petrosin in accord with clause 27 of Section V of the Tender Documents/Instructions to Bidders, by Fax dated 18-7-1994 (R/VIII).
M/s. Petrosin submitted Bank guarantee/performance Bond; and contract according to written statement by OGDC, stood awarded.
9. This is the history of events forming back-drop for filing the present Writ Petition by M/s. PRESSON Manufacturing Ltd. OGDC-respondent No,2 and M/s. Petrosin-respondent No,3 filed written statements. M/s. PRESSON filed rejoinders to the writ statements and thereafter the petition was heard in motion. Learned counsel for respondent submitted some additional documents/letters during arguments which have been placed on record. Learned Standing Counsel also submitted specimen tender documents. These tender documents consist of nine sections. Section 1 deals with introduction. Section II gives Design Basis. Section III is about Process and Utility Systems. Section IV is regarding detailed scope of work. Section V contains instructions to biddeRs, Section VI is about Commercial Proposal. Section VII gives specifications and also contains list of vendors for critical equipment. Section VIII are drawings and Section IX contains Annexure "A" which is pro forma of schedule of requirement/bill of quantity. For purpose of this petition section V containing Instructions to Bidders (hereafter, ITS) is relevant. Clause 2 of section V prescribes eligibility requirements and reads as:--- 2.1 The bidder must be national of country maintaining bilateral trade relations with Pakistan.
2.2 Material and equipment be supplied under the contract must be produced in and supplied from a country maintaining bilateral trade relations with Pakistan.
2.3 Manufacturer of the goods being quoted must have at least 10 years' experience in the designing and manufacturing of the items. Documents in support of the above must be submitted with the bid.
2.4 Local agents of the Foreign suppliers must be registered with the office of Imports and Exports, Government of Pakistan and they must submit photo-copy of valid Registration along with their bid.
' Clause 17 relates to modification of bids.
' Clause 19 is about determination of responsiveness and reads as:--- 19.1 After opening the bids, the purchaser will determine whether each bid is substantially responsive to the requirements of the Bidding Documents.
19.2 For the purpose of this clause, a substantially responsive bid is one which conforms to all the terms and conditions of the Bidding documents without material deviation. A material deviation is one which being inconsistent with the bidding documents, affects in any substantial way the scope, quality or prescribed delivery schedule or which limits in any substantial way, the purchaser's rights or the bidder's obligations under the contract.
19.3 ..............................................................
19.4 The purchaser may waive any minor non-conformity or irregularity in a bid which does not constitute a material deviation, provided that the waiver does not prejudice or affect the relative standing order of any bidder.
' Clause 23 is about bid evaluation and award of contract and reads as: 23.1 For the purpose of determining the lowest evaluation bid, factors other than price, such as guaranteed delivery period, direct installation costs, reliability and efficiency of the equipment, financial standing of the bidder, availability of service and spare parts, proximity of bidder's repair facilities etc. Will be taken into consideration.
23.2 ..............................................................
23.3 The company shall inform the successful bidder of its intent to enter into a contract. The contract shall be executed subject to the satisfactory negotiation of the terms and conditions of the contract.
' Clause 27 is about Notification of award and reads as: 27.1 Not later than expiration of the period of bid validity prescribed in bidding Documents, successful bidder will be notified in writing that his bid has been accepted. The Notification of award will constitute the formation of contract.
27.2 Upon the successful bidder's furnishing of a performance Bond/Bank guarantee, the purchaser will promptly notify the unsuccessful bidders that their bids have been unsuccessful and will return their bid bonds.
' Clause 29 is regarding signing of contract. Clause 30 prescribes Criteria for Summary Rejection (Commercial) as well as Criteria for Summary Rejection (Technical) and sub-clause 14 reads as
14. Full details with complete address of hydrocarbon proceeding plants and equipment supplied by the bidder during the last five (5) yeaRs, ' Second part of Section V lays down conditions of contract and is not relevant for the purpose of this petition because the moot point herein is the award of contract and not the contract itself.
Section VI is about Commercial proposal. Rest of the tender documents are not relevant for the controversy.
9. Learned counsel for the petitioners submitted that OGDC is a statutory corporation established under Oil & Gas Corporation Ordinance, 1961 and is amenable to the Constitutional jurisdiction of this Court and by virtue of subsection (3) of the section 4 of the Ordinance, the Federal Government can give directions or instructions on question of policy to Board of Directors of OGDC.
It was further submitted that Instructions to Bidders contained in tender documents have the force of statutory rules as these were issued in consultation or under instructions of the Government and as such were binding on the OGDC and the parties concerned. He has further submitted that deviation from the terms of invitation to bid, or instructions to bidders is not permissible and is violative of Article 25 of the Constitution. Enlarging this argument, learned counsel has stated that Clause 23 of ITB was mandatory provision and respondent No,3 did not fulfil it and as such was not eligible to submit bid and its bid should have been rejected under the Criteria for Summary Rejection. According to the learned counsel M/s. Petrosin had quoted 10-15% of goods to be supplied to OGDC under the contract which would be Petrosin made and the Company being less then 10 years old was thus ineligible to submit bid. It was also submitted that M/s. Petrosin did not fulfil sub-clause 14 of Criteria for Summary Rejection (Technical) and on that count too, was disqualified to take part in the proceedings. According to the learned counsel the awarding of contract to M/s. Petrosin was violative of fundamental rights and was also against law and was unreasonable. He relied upon AIR 1979 SC 162 and 1993 SCM R 2158, another judgment from Indian jurisdiction.
10. Learned Standing Counsel for Federation of Pakistan has submitted that OGDC was fully competent to award the contract and as a matter of fact, under the terms of the tender documents, the award of contract had already been notified to M/s. Petrosin who have submitted Bankguarantee/performance bond and contract for all intents and purposes stands awarded.
Learned counsel appearing for respondent No,3 has submitted that matter in controversy relates to awarding of contract which is not justiciable in the Constitutional jurisdiction of this Court. He submitted that writ suffers from laches inasmuch as M/s. Petrosin were found technically responsive as far back as August 1993 and M/s. PRESSON did not raise any objection on its eligibility.
According to the learned counsel the petition suffers from laches at two stages; first when the M/s. Petrosin were found technically responsive and secondly when the contract was awarded to the firm on 18-7-1994. The petitioner approached the Court after about one year in the first instance and after six weeks after the contract was awarded and according to him this was fatal to its case.
It was further submitted by the learned counsel that OGDC was fully competent to evaluate the bids and determine the fitness of a party for awarding the contract and the Ministry had absolutely no concern with the process and interference by the Ministry was mala fide. 'The learned counsel also submitted that prior to submission of technical proposal M/s. Petrosin informed OGDC that it was associating with itself M/s. Comprimo of Holland a world renowned manufacturer of oil equipment; and prior to that on 19-4-1994 M/s. Comprimo had themselves informed OGDC that they would be collaborating with M/s. Petrosin in execution of this contract. According to him the Company fulfilled all the criteria commercial as well as technical prescribed by OGDC and at least two High-powered committees consisting of officials of the Ministry as well as OGDC had recommended award of contract to M/s. Petrosin. The learned counsel vehemently argued that it was M/s. PRESSON who did not fulfil the conditions laid down in clause 2.3 of ITB and as revealed by letter dated 21-2-1994 of OGDC to the Ministry, M/s. PRESSON in their proposal had indicated four local fabircators as potential suppliers of the equipment all of whom were not known manufacturers of oil equipment and were only in possession of some welding/fabrication facilities.
According to him the Project Coordinator had clearly stated in letter dated 21-2-1994 that "if same tender evaluation criteria was strictly followed then there was possibility that M/s. PRESSON had more deviation than M/s. Petrosin" and this according to him showed that M/s. PRESSON itself was ineligible. Learned counsel stated that under ITB, M/s. Petrosin had already been notified about award of the contract and grant of relief as prayed for in the petition would be inequitable and the Court should not interfere in the aid of injustice.
11. Before analysing the above arguments, a few words about the scope of judicial review, Judicial Review of administrative actions as principle of law is ingrained and rooted deeply in our jurisprudence, judicial system and practice. It is almost a gospel now that wherever, "there is any transgression of power, the abuse of power or colourable exercise of power, the exercise is open to correction in the Constitutional jurisdiction of the superior judiciary." Islamia University, Bahawalpur v. Dr. Muhammad Khan Malik PLD 1993 lah.
141. The Supreme Court in Fauji Foundation and others v. Shamimur Rehman PLD 1983 SC 457 observed that the purpose of judicial review is corrective or directory and extends to determining legality of administrative actions. Judicial Review now has reached a stage where dicta laid down in some cases that a tribunal can decide a matter rightly or wrongly, would seem to be a far cry from hence. As an ideation judicial review has always been a dynamic concept and, to quote FW Maitland, "each generation has enormous power to chaise its own laws" its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with bolder concepts. Lord Diplock in CCSU v. Minister for the Civil Service (1984) 3 All ER 935 at 950 says: "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second `irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community, but to dispose of the instant case the three already well- established heads that I have mentioned will suffice.
' By 'illegality' as a ground for judicial review I mean that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges by whom the judicial power of the State is exercisable.
' By 'irrationality' I mean what can by now be succinctly referred to as `Eynesbury unreasonableness' (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (1947) 2 All ER 680 and (1948) I KB 233. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
' Lord Roskill in his speech (p.954) while approving the first two grounds justifying judicial review says about the third ground: "This third is where it has acted contrary to what are often called `principles of natural justice'. As to this last, the use of this phrase is no doubt hallowed by time and much judicial repetition, but it is a phrase often widely misunderstood and therefore as often misused. That phrase perhaps might now be allowed to fad a permanent resting-place and be better replaced by speaking of a duty to act fairly. But that latter phrase must not in its turn be misunderstood or misused. It is not for the Courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair.
' They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case ' The particular manifestation of the duty to act fairly which is presently involved in that part of the recent evaluation of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had 'a reasonable expectation' of some occurrence or action preceding the decision complained of and that reasonable expectation' was not in the event fulfilled."
' The "duty to act fairly" is not a novel idea. The basic concept has always been fairness in action, administrative, judicial or quasi-judicial yet this principle of "fairness" has matured only recently. "To act fairly" is the essential ingredient, and the basic ground rule, now, in decision-making by the public functionaries, administrative organs, and Government agencies. Denial of this principle would render the decision-making subject to scrutiny by the competent Courts. Illegality, irrationality and failure to act fairly are thus legitimate grounds for exercise of this power and these would be the considerations in the present review.
12. But first, the maintainability of the petition. Both the learned counsel appearing for respondents have forcefully questioned the aintainability of the petition on the ground that the grant, br refusal to grant a contract cannot be a subject of examination in Constitutional jurisdiction of High Court.
True; matters regarding enforcement of contractual obligations for performance of a contract are subjects which are not prone to judicial scrutiny because of the limitation in exercise of judicial review. Such matters do involve factual enquiries of some sort or other and law thus prescribes other forums and other remedies to be availed of. But since here the controversy raised is about the process through which decision has been arrived at, and Judicial Review, in essence, is a review of the manner in which decision is taken by public decision-makers, the matter aptly falls within the competence of this Court. No doubt, this is not the arena for thrasing out private disputes regarding contracts but a statutory corporation being involved in the decision making reverses the position. There is no prohibition in law or authority to entertain the petition. The scope of exercise of Constitutional powers of High Court in matters of contracts has been examined variously. It has been laid down in Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police PLD 1992 Kar. 283 and Abdullah & Company v. Province of Sindh 1992 MLD 292 that an arbitrary, capricious or unfair exercise of discretion in the grant of public contracts by functionaries of State renders the exercise to judicial review. Maintainability of the petition, thus is not controvertible.
13. Next comes justifiability of the ITB, and this has been urged by the petitioner, and equally emphatically disputed by the other side, on the ground that these instructions having been issued by a public body have the force of statutory rules. According to learned counsel, the Ministry had directed the OGDC to follow these instructions he has referred to correspondence between the two, which according to him was exercised under section 4(3) of the OGDC Ordinance, 1961 and thus the ITP assume statutory character. ITB were neither issued by the Ministry nor prepared under any delegated authority and the same do not have any characteristics of statutory nature. These are part of a tender document of a company and prepared for a commercial transaction. If a public body was not associate with these instructions, ITB could hardly have been looked into, in exercise of power of judicial review. Uniform applicability of ITB to different parties by a public body is the only aspect which allows referring to these in the present proceedings. The proposition that the ITB have statutory character and hence enforceable is totally unacceptable.
14. After determination of extent of justiciability comes the heart of the matter. The whole edifice of petitioner's case is founded on two grounds namely that clause 2.3 of ITB and clause 14 of the Criteria for Summary Rejection (Technical) were not complied with making Petrosin ineligible to contest. The gravamen of the charge is that terms of the tender documents were deviated from to accommodate Petrosin. At first glance, the argument might seem fascinating but its speciousness becomes evident on viewing the matter in proper perspective. Invitation to bid and the tender documents containing ITB have to be examined as a whole and confuting the argument to only two sub-clauses would be an unsafe course to adopt. Instructions to bidders ITB are part of a voluminous document and have been devised and designed by OGDC to safeguard its interests in a manner to give considerable discretionary power to the corporation at early stages of invitation and evaluation of bids. These discretionary powers include determination of eligibility and responsiveness or substantial responsiveness; evaluation of bids; permitting modification; allowing or- waiving deviations and power to seek clarifications. The ITB also authorizes the OGDC to ignore lowest bid. In short, the ITB vests in the OGDC power to choose, keeping commercial considerations in view, a bidder best suited to its needs. Such a bidder could have been a manufacture or a stockist i,e, a mere supplier. The OGDC had also provided, in section VII of the Tender Documents, preferred vendors list namely a list of those manufacturers whose equipment the OGDC would prefer the bidders to supply; and Petrosin's name appeared therein. A perusal of the Tender Documents would manifest that it is nowhere provided therein that a supplier must be a manufacturer and thus petitioner's contention in this regard has no legs to stand on. The OGDC and the High Powered Committee referred to above had also interpreted the provision to the same effect and no fault is found in this finding. An extension of the petitioner's argument was that Petrosin had stated that it would be supplying 10-15% of Petrosin-made equipment and thus was disqualified due to 10 years bar contained in clause 23 of ITB. This argument is also without any force for the reason that it was not quoted with the bid but was so stated by way of clarification later when the OGDC, after being pushed by the Ministry, sought one from Petrosin. Petrosin thereafter clarified that it would be supplying all equipment from manufacturers of OGDC's choice, regardless of the fact that Petrosin stood pre-qualified by having been included in the preferred Vendors List and also that previously it had supplied oil equipment to OGDC and otheRs, The OGDC and Committee's Reports dated 26-1-1994 and 27-6-1994 had adequately answered petitioner's contentions qua violation of Clause 2.3 and Clause 14 of the Criteria for Summary Rejection (Technical). Learned counsel has been unable to shake the findings recorded therein.
15. Another argument or rather a continuation of the earlier contention about violation of Clause 2.3 and Clause 14 is that the decision to award contract to Petrosin has been taken in deviation of the terms of ITB and the petitioner has been discriminated against. The learned counsel for the petitioner to convass this point has referred to correspondence between Ministry and OGDC and certain portions of Report dated 27-6-1994 where certain anomalies in the tender documents/or the process of evaluation of bids have been pointed out or stated that certain factors had been ignored while evaluating the bids. Learned counsel at this stage also submitted that original files might be summoned so as to enable the Court and the parties to see the evaluation of the bids done by OGDC. This notion that judicial review can be equated with an appeal, must be dispelled.
This never has been the scope of judicial review. Transparency in the process of decision-making by public functionaries is definitely required but the judicial review does not enable or empower a Court to get into chair of a public functionary to take over his job and substitute its decision for his decision. It must be remembered that while exercising power of judicial review Courts cannot and do not take on the charge of Government or the public bodies. Respective spheres of activity are well-defined in this regard. Now, as noted earlier, the tender documents confer considerable discretionary powers on the OGDC to ignore certain criteria and to determine substantial responsiveness of the bidder keeping in view the best interest of OGDC. Learned counsel for the petitioner has been unable to show with reference to material on record that one set of Criteria was followed in the case of M/s. PRESSON and another set was applied to M/s. Petrosin. A case of discrimination is made out only where recourse is had to different standards quo equally placed persons or parties. No case of discrimination has been made out and petitioner's contentions in this regard are without any force.
16. Denial of relief to petitioner has also been strenuously pleaded by respondent No,3 on grounds of 'aches. Their case is that if such a ground was available to petitioner, it should have approached a judicial forum immediately after Petrosin was declared technically responsive or when OGDC indicated that job was ready to be awarded to the technically lowest bidder, or still more when OGDC notified award of contract but the petitioner filed this petition on 24-8-1994, a year after the first set of events; and after about five weeks of finale. The answer was that Minister was approached on both the occasions and now when he could not salvage the situation, the Court was approached. Law as to laches is based on the maxim: "Vigilantibus non dormientibus acquit as subvenit". The watchful and not the dormant the equity helps, and signifies laziness in pursuing a legal remedy. Any fixed period constituting laches cannot be prescribed, it will depend upon facts and circumstances of each case as to what would amount to laches. Pakistan Post Office v. The Settlement Commissioner 1987 SCM R 1119 approvingly cited in Muhammad Ismail Qureshi v. Gulab Din 1988 SCM R 1001. In this particular case, bids were toremain valid for 120 days only, therefore, time was an important factor. No doubt the Ministry did ask the OGDC to consider Presson for award of contract and later, in not too unloved terms, virtually ordered OGDC to award the contract to Presson, but it must be seen that under the germane law, the Ministry could have enforced policy dictates only and a pure commercial transaction, like award of contract, decidedly fell outside the pale of Ministry's jurisdiction and the pursuit of the matter by the petitioner being before an incompetent forum has to be ignored. Contentions of the respondents about indolence of the petitioner, are thus found to be not without substance.
17. The OGDC established under Oil and Gas Corporation Ordinance, 1961 is an autonomous body, and is authorized under the law and the terms of tender documents to evaluate and determine the fitness, suitability 'and bona fides of a prospective supplier keeping commercial considerations in view, which it has done. The Corporation has selected the lowest bidder who had already supplied equipment to it and this Company's credentials were well known to the Corporation. The petitioner remained associated with the proceedings throughout and he was given enough opportunity of being heard. The decision to award contract has been made within parameters of the tender documents. There is no allegation of mala fides or kickbacks having been received as consideration for award of contract. Now the Ministry of Petroleum and Natural Resources has also relented and assented to the award of contract to M/s. Petrosin. Learned counsel for respondent No,3 has also stated that M/s. Petrosin would be supplying the equipment at 1993 prices without any qualitative or quantitative deviation from the bid.
18. Keeping in view all the facts and circumstances of the case, already discussed above, no hesitation is felt in holding that the OGDC acted fairly in the matter. No illegality or irrationality has been found in the decision either. The petitioner has been found not entitled to any equitable relief.
The petition, therefore, must fail and is accordingly dismissed.