Mian Sahir Sadhla, Advocate for petitioner.

Hafiz Arfat Ahmad Ch. and Tariq Zaman Ch., Advocates for C.D.A.

Muhammad Khurshid, Deputy Director, P.P.R.A. for respondents.

Date of hearing: 12^th July, 2021.

JUDGMENT

Miangul Hassan Aurangzeb, J:—Through this judgment, I propose to decide writ petitions No.947/2021, 1262/2021, 2031/2021 and 2235/2021 since they entail common questions of law and fact.

2.           In all the petitions, the petitioner, Sanghol Engineering Services (Pvt.) Ltd., has assailed the omission on the part of the Capital Development Authority (“C.D.A.”) in issuing the tender documents to enable it to participate in the competitive process for the award of different contracts mentioned in the tender notices issued by the C.D.A.

3.           Vide tender notice dated 10.03.2021, the C.D.A. invited contractors / firms duly enlisted with the Pakistan Engineering Council for the award of 19 different contracts mentioned in the said notice. In the said tender notice, it was mentioned that tender documents could be purchased on payment by 04.03.2021. It was also mentioned that “the tender will be issued only to those firms who provide at least 03 work orders for last 02 financial years in the relevant field including satisfactory completion / performance certificate issued by the head of any government department along with application otherwise tender will not be issued to firm.”

4.           The petitioner asserts that it applied on 04.03.2021 for the issuance of tender documents with respect to 8 contracts but the C.D.A. refused to issue tender documents to it. This prompted the petitioner to file writ petition No.947/2021 before this Court praying for a direction to the C.D.A. to issue tender documents to the petitioner so that it could participate in the tender bidding process for the said contracts.

5.           Learned counsel for the C.D.A. submitted that the tender notice dated 10.03.2021 was cancelled and subsequently another tender notice was issued on 18.03.2021 which is the subject matter of writ petition No.1262/2021 filed by the petitioner. The said writ petition was filed since the C.D.A. had refused to issue tender documents to the petitioner and thereby disallowing it to participate in the tender bidding process for the award of the contracts mentioned in the said tender notice. The last date for the purchase of the tender documents was stated to be 30.03.2021 whereas the condition for a bidder to provide at least 03 work orders for the last 02 financial years was the same as before.

6.           The C.D.A. also issued similar tender notices dated 18.05.2021 and 08.06.2021 and again refused to issue tender documents to the petitioner. The non-issuance of the tender documents by the C.D.A. has deprived the petitioner of its legitimate right to participate in the tender bidding process for the award of the contracts mentioned in the said tender notices.

7.           Learned counsel for the C.D.A. tried to justify the refusal on the part of the C.D.A. to issue tender documents to the petitioner by taking the plea that it had not satisfied the condition of providing at least 03 work orders for last 02 financial years in the relevant field including satisfactory completion / performance certificate issued by the head of any government department. He further submitted that the petitioner was a bad performer inasmuch as it had not completed the contracts that had previously been awarded to it by the C.D.A., and had embroiled the C.D.A. in wasteful litigation.

8.           I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

9.           The vital question that needs to be answered is whether a procuring agency like the C.D.A. can refuse to issue tender documents to an applicant on the ground that it had not fulfilled the conditions for the issuance of a tender. Learned counsel for the C.D.A. is confusing the issuance of tender documents to a bidder with issuance of a tender to a successful bidder. The former simply implies a permission to an applicant to participate in a tender bidding process whereas the latter implies the award of a contract to the successful bidder.

10.         The terms of the tender notices in question do not require an applicant of the tender documents to satisfy the C.D.A. as to the condition of having at least 03 work orders for last 02 financial years in the relevant field at the stage when an applicant approaches the C.D.A. for the purchase of the tender documents. For the purchase of the tender documents, an applicant has to submit a non-refundable fee by the last date mentioned in the tender notice. After an applicant submits a bid, if it cannot satisfy the C.D.A. as to the condition of having at least 03 work orders for last 02 financial years in the relevant field including satisfactory completion / performance certificate, the bid would be rejected. The C.D.A. can take this decision during the bid evaluation process. It cannot refuse to issue tender documents to an applicant on the ground that it would not satisfy the criteria for the award of the contract. It is an admitted position that no evaluation of the petitioner’s credentials took place at the stage when it approaches the C.D.A. for the purchase of the tender documents.

11.         I notice that in one of the tender notices, the C.D.A. has included a condition that tender will be issued only to those firms who give an undertaking that they are not involved in any litigation with any government, semi-government or autonomous body in Pakistan. A procuring agency is well within its rights to require a bidder to give an undertaking that it is not involved in litigation with any government, semi-government or autonomous body in Pakistan. However, litigation between an applicant and government, semi-government or autonomous body in Pakistan by itself cannot be a ground to disqualify an applicant to participate in the bidding process. Reference in this regard may be made to the law laid down by this Court in the case of 7C’s Corporate Services Vs. Oil and Gas Development Company Ltd. (PLD 2017 Islamabad 115) wherein it was held as follows:-

“28. Now, the vital question that needs to be answered is whether a bidder can be disqualified from participation in a tender bidding process simply because he had instituted legal proceedings against the procuring agency? If the answer to this is, yes, would such disqualification not pose as a barrier to access to justice? I hasten to say, it certainly would, and thereby transgress a person’s fundamental right of access to justice. A private party is at liberty not to enter into a contract with a party against whom he has been litigating. However, such a luxury is not available to the State or a Procuring Agency, as defined in Public Procurement Regulatory Authority Ordinance, 2002. It is well established that in dispensing its largess or entering into contracts, the State is expected not to act as a private individual but should act in conformity with certain healthy standards and not in an arbitrary or discriminatory manner. A party will be reluctant to agitate its rights by invoking the jurisdiction of a Court of law against an authority for the fear of being ousted from a tender bidding process initiated by such an authority. A court of constitutional causes exercising equitable jurisdiction certainly cannot countenance this.”

12.         Till date, the petitioner has not been adjudged as a defaulter or a bad performer of its contractual obligations. Furthermore, the petitioner has also not been blacklisted by the C.D.A. or any other government department or autonomous body in accordance with the requirements of Rule 19 of the Public Procurement Rules, 2004.

13.         In view of the above, writ petition Nos. 1262/2021, 2031/2021 and 2235/2021 are allowed, and the refusal on the part of the C.D.A. to issue tender documents to the petitioner is declared to be without lawful authority and of no legal effect. Writ petition No.947/2021 is dismissed as having been rendered infructuous.

Order accordingly