KARACHI: A single bench of the Sindh High Court (SHC) headed by Justice Muhammad Shafi Siddiqui has dismissed Miscellaneous Appeal filed by M/s Jiangsu Dajin Heavy Industry Co against Port Qasim Authority & others against issuing tender notices for supply of two pilot boats and four tugs.
On 4 June 2021, court released detailed judgment and observed that “this statutory appeal under procurement laws is filed by appellant M/s Jiangsu Dajin Heavy Industry Co. Ltd. in response to tender notices published nationally and internationally. The appellant amongst others has submitted its response in the shape of tender documents based on single stage two-envelop procedure under Rule 36 of Public Procurement Rules 2004 for supply of two pilot boats and four tugs of the specifications highlighted in the public notices.
Respondent No.1 Port Qasim Authority is the procuring agency for the purpose of the dispute raised in this appeal whereas respondent No.2 Pakistan Procurement Regulatory Authority is an authority created under the provisions of PPRA Ordinance, 2002 and is empowered to regulate the procurements in Pakistan. Respondent No.1 i.e. procurement agency published two public notices in national and international 2 newspapers and invited sealed bids under single stage two-envelope procedure for supply of two pilot boats and four tugs.
Appellant, considering itself to be qualified in terms of the prerequisites incorporated in the tender notices published, offered itself and participated in the tenders and submitted a sealed envelope for each having two envelopes inside, marked as technical and financial proposals/bids. As required under the Rule 36 bid, the technical bid is to be evaluated first and only then the financial bid of those who have technically qualified is to be opened in presence of the bidders.
Appellant claimed to have received a letter of 13.11.2020 whereby they were informed that their technical bid was non-responsive and hence were disqualified. The appellant responded to the letter of their disqualification but all in vain. On 17.11.2020 financial bids were opened for the remaining bidders who have successfully qualified the technical step or tier and respondent No.3 was declared as being lowest bidder for supply of aforesaid pilot boats and tugs
Even if I have to measure bidding terms on the touchstone of malice and mala fide, I would come out with the understanding that these terms are for every one and not to exclude anyone. These are commercial transactions and decisions in this regard should be based on strict compliance of terms of tenders whereas equity and fair play based on financial offer is not the primary concern. Even if someone intends to impress by showing a better financial offer, he has to qualify first on technical grounds.
It is the overall impact till completion of the job that needs serious consideration by the procuring agency. Whether a bidder has the ability to deliver as per terms of tenders and having capacity to ensure project’s completion should be the primary concern of the procuring agency. There is thus nothing which could lead to conclude that the process ended up in a decision of rejecting the technical bid of the appellant was flawed.
In the case of Central Coalfields 1 identical question came up for consideration i.e. whether furnishing bank guarantee in format prescribed in bid documents was an essential requirement in the bidding process and consequently in its denial to comply, a bid could be treated as non-responsive. Conclusion drawn was that failure to furnish bank guarantee in the prescribed format was sufficient reason to reject its bid.
Any term within frame of law is also not open for a judicial review even under the hierarchy of procurement laws as Rule 25 enables the procuring agency to require bid security not exceeding five per cent of the bid price to be furnished by every bidder and procuring agency may save its effectiveness for a period as they required in terms of Rule 26. 28.
In view of above, I am of the firm view that the appellant has failed to make out a case calling for interference in the tender process which led to award of the tender in favor of respondent No.3. Consequently, instant appeal merits no consideration which is accordingly dismissed along with pending applications.
