1. CH. IJAZ AHMAD, J.- The brief facts out of which the present writ petition arises are that on 31st January, 1996 the respondent OGDC advertised a tender for procurement of tubing Head and Duel X-Mass Trees under two envelop Bidding process in two shapes of bidding procedure specifying that;
1. Technical Bid and
2. Financial Bid, 15 companies purchased the tendered documents but only 6 companies have submitted their Technical bids.1 The respondents after Technical evaluation found five bidders' technically qualified as per opening of the tender on 12th March, 1996 at 11.30 Hrs. Therefore, these five technically qualified bidders submitted their financial bids which were opened on 11.7.1997. The learned counsel for the petitioner relied upon companies given by him in Paragraphs Nos. 4 and 6 of the writ petition and para 6 of the rejoinder which are reproduced hereunder:- The financial bids of FIVE TECHNICALLY QUALIFIED BIDDERS were open in OGDC on 11-7-1996:- The tender read out prices of the five bidders is as follows:- ADOS Pakistan. Limited USS 809,757.96 For Works Hattar Ahmad Jaffar & Co. US$1001,585.00 F.O.B.
2. ABB VETCO GRAY USS 786,881.00 F.O.B.
3. CONTROL FLOW USS 714,395.65 F.O.B.
4. ELC USS 446,096.50 F.O.B.
5. Contract Value F.O.B. Canada USS 714,395.65 FOB Sea Freight unto Karachi USS 15,000,00 (Approx)
6. Insurance @ 1 % of C&F value USS 7,293.95 CIF Value Ex. Works Karachi Sea Port USS 736,689.60 Import Duties @ 45% of CIF USS 331,510.32 Value Sales Tax @ 15% on duty paid USS 160,299.98 Cost of equipment Ex-Karachi US$1228,429.90 Port Clearing and forwarding cost plus KPT Charges @ 1.5% of duty paid value USS 18,426.44 Octroi @ 2 % of duty paid value USS 24,566.59 . Ex-Karachi Custom House Cast US$1,271,424.93 FINANCIAL COSTS.
7. Bank Charges for L/C opening USS 10,715.93 etc: Difference in SBP USS Buying and Selling rate 2.5% USS 17,859.89 NET COSTS TO OGDC US$1,300,000.89 ADOS PAKISTAN LIMITED. (1) Price quoted: US$809,757.66 to be delivered; Hattar Industrial Estate Pakistan. All Custom duties import and other taxes to be incurred by OGDC as per clause 9.1 of the Tender.
8. Sea freight, Insurance and Inland transportation charges to be incurred by the OGDC. (As per clause 9.3 of the Tender documents).
9. Local Manufacturers entitled to 15% price preference vide SRO No. 1083(l)/83, dated 17.1.1983.
6. It is evidence that OGDC admitted the analysis except Sea freight and insurance. If we take the figures as reported by OGDC, the revised analysis works out as under:- FOB Value USS 714,395.00 Ocean freight as admitted 9,900.00 by OGDC Insurance as admitted by 5,041.00 OGDC CIF Price Karachi Port 729,336.00 Customs duty @ 45. % 328,201.20 Sales Tax @ 12.50% of duty 132,192.15 paid value Income Tax @ 5% of duty value 57,435.21 Ex-Works Karachi 1,247,164.56 Clearing charges @ 60% of 4,376.01 CIF Price Octroi charges @ 1 % of CIF price 7,293.36 Financial Costs: L/c opening charges @ 1 % of FOB price which comes to USS 7,143.95 Misc. Bank charges @ 0.30% of 2,143.18 FOB price. Difference in SBP US$ buying and selling rate @ 2.5. % of FOB| 17,859.80 Net Cost to OGDC 1,285,980.93 {{Table misarrange}} In accordance with the provisions of SRO 1083(l)/83, dated 17th November, 1983 and Ministry of Finance letter # 10(5)L&P/91-Misc., dated 17th September, 1992, price preference is to be given on landed cost, ADOS comes lowest.
2. The learned counsel for the petitioner contended that the above- mentioned comparison clearly reveals that the bid of the petitioner was less than that of respondent No. 2 but the respondent mala fidley, arbitrary accepted the bid of respondent No. 2 against the terms and conditions provided in. The tendered documents and advertisement of the tender.
3. The learned counsel for the respondents relied upon Annexure F with the parawise comments in which the respondents provided comparison of all the five bidders at page 384 of the parawise comments. The relevant portion is reproduced hereunder regarding petitioner and respondent No. 1:- Name of Bidder M/s. ADOS Pakistan M/s. Control Islamabad. Flow Islamabad Manufacturer M/s. ADOS Pakistan M/s. Control Ltd. Islamabad Flow Islamabad.
10. Local Agent. M/s. ADOS Pakistan M/s. Friends Enterprises Islamabad.
11. USS . USS 809,757.97 714395.65 F.O.R. 841048.92 838737.15 {{table misarrange]} The learned counsel for the respondents explained the chart and stated that according to the tendered documents Item No. 10 is Rotary choke with replacement multiple beans with tungsten carved were sleeves with weal indicator and filter valve. This was the requirement of the respondents whereas the petitioner mentioned in their documents at the time of bidding as follows:- "Willis Rotary Choke, 2-1/16" API 5000 # WP RX-24 Flanges Inlet/Outlet with Tungsten Carbide wear slaves with wear Indicator and filter valve, per API GA 16th Edition PSL 2, PR-1, Matl Class FP, Temp.
12. Class 'U'.
13. And the petitioner in violation of the terms of tender mentioned the Rotary as option which is at page 224 of the parawise comments to the following effect:- Option Willis Rotary Choke 2-1/16" API 5000 WP RX-24 Flanges Inlet/Outlet with Tungsten Carbide wear sleeves with wear Indicator and filter valve, Per API6A, 16th Edition PSL 2 PR-Matl Class FF, Temp. ' Class 'J'. Unit Price USS 17,209.50 {{TEXT MIAARRANGED}} and instead of Rotary Choke he mentioned the Willis type CC Choke which is not the requirement of the respondents, relevant portion of which is reproduced hereunder:- Total Price US$ 140,805.00 Willis Type CC Choke 2-1/16" API 5000 FLGD Connections, Matl Class FF, Temp. Class Upper API 6A, 17th Fission, PBL-2 {{TEXT MISARRANGED}} Then the learned counsel stated that the petitioner mentioned wrong calculations in para 4 of the writ petition but subsequently in rejoinder in para 5 admitted the figures of the respondents mentioned, in page 384 which is as under:- US$ 841048.02 for five sets.
14. He further argued that the petitioner wrongly miscalculated the figures in rejoinder in para 6 as well and contended that the petitioner is not manufacturer as is evidence from his papers submitted to the respondents and cited page 232 of the parawise comments i.e. "Country of Origin Pakistan/Singapore/U.S.A./France" and cited clauses of the respondents regarding the bidders which are reproduced hereunder:- 30.1. In comparing domestic bids with foreign bids, a margin of preference will be granted to goods manufactured in Pakistan in accordance with the following provisions, provided that the Bidder shall have established to the satisfaction of the Purchaser that the domestic value added equals at least 20% of the ex-factory bid price of such goods. For application of domestic preference, all respective bids will first be classified into following three categories:-
(i) Category-I: Bids offering goods manufactured in Pakistan which meet the minimum domestic value added requirement.
(ii) Category-II: Bids of offering other goods manufactured in Pakistan and
(iii) Category-Ill: Bids offering imported goods.
15. The Purchaser will review each bid to confirm the appropriation of, or to modify as necessary, the category to which the bid was assigned by the Bidder in preparing it.
16. 30.2. Te lowest evaluated bid of each category will then be .Determined by comparing all evaluated bids in each Category among themselves without taking into account custom duties and other import taxes levied in connection with the sale or delivery, pursuance to the bids, of the goods.
17. 30.3. Such lowest evaluated bids shall next be compared with each other and if, as a result of this comparison, a bid from Category-I or Category-II is found to be the lowest, it will be selected for the award of contract.
18. 30.4. If. However, as a result of the comparison under paragraph 30.3 above, the lowest .Bid is found to be from Category-Ill, it will be further compared with the lowest evaluated bid from Category-I for the purpose of this further comparison only, an upward price adjustment will be made to the lowest evaluated bid price of category-III by adding either:-
(i) The amount of the custom duties and other import taxes which a non exempt importer would have to pay for the importations for the goods offered in such Category-III bid, or
(it) Fifteen percent (15%) of the c.i.f. Bid price of such goods if the customs duties and port taxes referred to in (i) above exceed 15% of the c.i.f. Bid price.
19. If, after such comparison, the Category-I bid is determined to be the lowest, it will be selected for the award of Contract, if not, the lowest evaluated bid from Category-III will be selected for the award.
20. He argued that the case of the petitioner falls under clause 30. l(iii) and also relied upon clause 30.4(ii) and stated that the figures mentioned at page 384 comparison of the five bidders and admitted by the petitioner in rejoinder in paragraph 5 the action of the respondents is in accordance with law and the calculation are based on the terms and conditions of the bid and further stated that only items mentioned in paragraph 6 of the rejoinder. Only CIF price is to be counsel on the basis of the above provisions and the total amount of respondent's calculation will come 841048.15 whereas the petitioner's calculation will come 841048.02 and the respondents mentioned other items in paragraph 6 of the rejoinder as those were not part and part-1 of the terms and conditions of the tender. The documents attached with the rejoinder by the petitioner did not make them manufactured as is clear from Annex-I. ADOS can use the Cameron Trade Mark on Cameron Products that are assembled and tested in their present facilities therefore, petitioner could not take the benefit of the letter issued by the Ministry of Finance dated 17.9.1992. Letter of acceptance was issued to the respondent No. 2 on 29.7.1997 at page 385 of the parawise comments. Contract was also awarded to respondent No. 2 on 16th August. 1997 at page 388 of the parawise comments. L/C was opened for USS on 16.8.1997 for 366283.18(page 408) of the parawise comments) of the parawise comments for procurement of touching head and duel Ex-Miss Trees for 5 other sets. He argued that each and every thing is complete in accordance with the advertisement, therefore, the writ petition is not maintainable. The writ petition is also not maintainable as the petitioner wants the enforcement of the contract and relied upon the following judgments:-
(1) M. Muzaffar-ud-Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another (1968 S.C.M.R 1136),
(2) Shamshad Ali Khan v. Commissioner Lahore etc. (1969 SCM R 122).
(3) Mir Rasool Bux Khan Sundrani and Co. v. People's Municipality, Sukkur and 2 others (P.L.D. 1975 Karachi 878)
(4) M/s. Sandal Fibres Limited v. Government of Pakistan and 7 others (P.L.D. 1992 Lahore 400); He further argued that the action of the respondents is based on fairness, therefore, the writ petition is not maintainable and relied upon M/s. Presson Manufacturing Ltd. And another v.
21. Secretary Ministry of Petroleum and Natural Pesources and 2 others (1995 M.L.D. 15).
4. The learned counsel for the petitioner in rebuttal contended that the petitioner is a manufacturer as is evident from the letter of the Petroleum Ministry dated 23.12.1993, the operative part is reproduced hereunder:- "Enclosed please find a brochure of ADOS Pakistan Limited, a local oil field equipment manufacturing and repair facility that has just commenced production. What is heartening to note is that ADOS will be operating under the following international licences, with some of the world's most reputable manufacturers providing all the necessary warranties, performance guarantees and quality assurances for the equipment manufactured at ADOS under their Respective licences." and also relied upon the agreement dated 16th May, 1995 between the petitioner and the respondents (Annexure G' with the rejoinder) and also relied upon Cameron Licence Agreement dated 29th May. 1997 and the relevant clause is reproduced hereunder:- What pressure rating and equipment ADOS is licensed to manufacture in their present facilities.
22. It is pertinent to mention here to show that petitioner can use Cameron trademark only and relevant para 3 of the reply dated 2nd June, 1997 is reproduced hereunder:-
(3) ADOS can use the Cameron trademark on Cameron products that are assembled and tested in their present facilities. The standard warranty backs these products. A copy of warranty follows.
23. And also relied upon the letter issued by the Ministry of Finance dated 17th September, 1992 under the heading price of local bidders which is to the following effect: - The following charges are to be added in order to arrive at the landed cost of an imported consignments:-
(i) Customs duty and other taxes.
(ii) Import licence fee.
(iii) L/c charges.
(iv) Port charges (Normal and demurrage if any)
(v) Octroi (if chargeable)
(vi) Clearing charges.
24. Learned counsel for the petitioner contended that respondents mala fidley did not give them benefit of letter dated 17.9.1992, therefore, the calculation of the respondents is not based on correct facts according to the terms of the tender and therefore, the case calls under clauses 30. l(i) and 31.4.(i). The calculation made by the respondents is in violation of these terms. The learned counsel for the petitioner relied upon the following judgments:
(1) P.L.D. 1992 Karachi 283
(2) P.L.D. 1973 Lahore 733
(3) P.L.D. 1997 S.C. 342
(4) A.I.R. 1985 S.C. 1147
(5) A.I.R. 1982 Calcutta 19.
25. He further argued that the action of the respondents is based on malafide, arbitrary ,n violation of Articles 4 and 25 of the Constitution.
26. I have given my anxious consideration to the respective contentions of the learned counsel for the parties and perused the record with the assistance of the learned counsel. The preliminary objection raised by the learned counsel for the respondent that the writ petition is not maintainable as the petitioner wants the enforcement of the contract has no force, it is admitted fact that there is no contract executed between the petitioner and respondents, therefore, question of enforcement of contract does not arise in this case. The petitioner challenged the mala fide action of the respondents on the ground of mala fide and arbitration and discriminatory and violation of fundamental rights. The High Court has jurisdiction to examine the case and peruse the record whether the action of the respondents is based on malice or not. I am fortified by the judgment of the Hon'ble Supreme Court reported as Arsal A Khan v. Bashir Ahmad Baloor (P.L.D. 1976 S.C. 581), Bashir Ahmad Baloitr v. Municipal Committee Peshawar (P.L.D. 1976 Pesh. 1) and Mis. Pressotution Manufacturing. Ltd. Etc. v. Secretan, Ministry of Petroleum and Natural Resources etc. (1995 M.L.D.
27. 15(Lahore) I have perused the record and found that the bid of respondent No. 2 is less as had compared to the petitioner, therefore, petitioner in case petitioner is not manufacturer, has no vested right to agitate the matter before this Court. The petitioner did not submit any document alongwith tender to show that the petitioner is a manufacturer, therefore, the respondents are well within their right to consider the petitioner that petitioner is not a manufacturer. Respondents at the time of examining and calculating the values correctly applied clauses 30.1 (iii) and 30.4(ii). The petitioner relied upon annexures C.J and K dated 16.5.1995, 23.12.1993 and '17.9.1992. Admittedly these documents are prior to the advertisement of the present tender i.e, 31.1.1996. Therefore, these documents are not relevant to consider while examining the present bid by the respondents as the documents were not attached with their tendered papers. Annexure Is of course dated 29th May, 1997 but the reply of which is also .Annexed by the petitioner which is to the extent that ADOS can use- the Cameron trademark on Cameron Products that are assembled and tested in their present facilities. This .Document negates the contention of the petitioner's counsel that the petitioner is a manufacturer. The tender submitted by the petitioner is silent to the extent that the petitioner is a manufacturer. The petitioner wants to consider the petitioner as manufacturer on the basis of the documents mentioned in "the rejoinder yet it needs evidence as the respondents do not accept them manufacturer, therefore, these are disputed questions of facts and disputed questions of facts cannot be decided while exercising power under Article 199 of the Constitution. The only controversy between the parties is whether petitioner is a manufacturer or not. This can only be resolved by recording evidence, In view of these circumstances the petitioner has alternate remedy to approach the Civil Court.
28. In view of what has been stated above the writ petition is dismissed in limine.