Locus Standi to Challenge Procurement Process

Locus Standi to Challenge Procurement Process Case Laws Certiorari Writ Constitutional Law Energy & Utilities Expression of Interest Knowledge - Constitutional Law Litigation & Arbitration Locus Standi Mandamus Writ Procurement Sindh High Court Solutions - Constitutional Law Mr. Justice Muhammad Faisal Kamal Alam in his judgment has decided the issue regarding locus standi to challenge procurement process in Constitution Petition No. D-1802 of 2017.

1. Through instant Constitutional Petition, the Petitioner Company [Premier Battery Industries Pvt. Ltd] has called in question the „Public Notice‟ dated 08.02.2017 issued by the Respondent No.1-Karachi Water and Sewerage Board (KW&SB), inviting expression of interest [E.O.I] for the Development of a Power Project at KW&SB/Respondent No.1 Dhabeji Pumping Station on Built Operate and Own Basis-BOO (subject project). The Petition contains the following prayer clause:

“The Petitioner hereinabove mentioned prays that the Honourable High Court of Sindh at Karachi may be pleased to declare that the Public Notice dated 08.02.2017 is mala fide, illegal and unlawful, and hence, of no legal effect; that the Honourable High Court of Sindh at Karachi may be pleased to restrain the Respondent No.1 from taking any further actions in pursuance of Public Notice dated 08.02.2017; that the Honourable High Court of Sindh at Karachi may be pleased to suspend Public Notice dated 08.02.2017 till the pendency of the proceedings; that the Honourable High Court of Sindh at Karachi may be pleased to award the costs of the petition to the Petitioner; that the Honourable High Court of Sindh at Karachi may be pleased to award any other relief as it may deem appropriate in the facts and circumstances of the case at hand; prayer with profound respect in the interest of justice, fair play, good conscience and enquiry.”

2. Mr. Haider Waheed, learned counsel representing the Petitioner Company, on following grounds has impugned the aforesaid Public Notice, which is available at Page-33 and appended as Annexure “B” to the Petition.

(i). The impugned Public Notice violates the Sindh Public Procurement Act and Rules made thereunder, particularly Rules 15 to 18 of the Sindh Public Procurement Rules, 2010 (SPPRA Rules).

(ii). Mandatory time of 45 (forty five) days was not given for submission of the bids as contemplated under Rule 18 sub Rule 2 (of SPPRA Rules) as the impugned Public Notice relates to the international bidding.

iii). Respondent No.1 (KW&SB) is guilty of publishing the impugned Public Notice in violation of mandatory Rule 17, as evident from its language.
It would be advantageous to reproduce herein below the Rule 17 of Sindh Public Procurement Rules, 2010:

“17. Methods of Notification and Advertisement.
(1). Procurements over one hundred thousand rupees and up to one million rupees shall be advertised by timely notifications on the Authority’s website and may in print media in the manner and format prescribed in these rules.
(2). The advertisement in the newspapers shall appar in at least three widely circulated leading dailies of English, Urdu and Sindhi languages.
(3). The notice inviting tender shall contain the following information:
(a) main, postal address, telephone number(s), fax number, e-mail address (if available) of the procuring agency;
(b) purpose and scope of the project;
(c) schedule of availability of bidding documents, submission and opening of bids, mentioning place from where bidding documents would be issued, submitted and would be opened;
(d) amount and manner of payment of tender fee and bid security;
(e) any other information that the procuring agency may deem appropriate to disseminate at this stage;
(4) In cases, the procuring agency has its own website; it shall also post all advertisement concerning procurement on that website as well;
(5) A procuring agency utilizing electronic media shall ensure that the information posted on the website contains all the information mentioned in sub-rule (3) above;
(6) In the case of international competitive bidding, the notice shall be advertised in two widely circulated local English language newspapers in accordance with sub-rules (1) (3) (4) and (5) above, and shall also be posted in English language on an internationally known website dedicated for the particular goods, works or services, or any widely circulated English language international newspaper.”

(iv). The learned counsel for Petitioner particularly referred to sub Rules 3(c) and 6 of Rule 17 to substantiate his stance that the subject Public Notice having a nature of international competitive bidding ought to have given the details mentioned in sub Rule 3(c).

(v). The Petitioner‟s counsel also placed reliance on the Sindh Public Private Partnership Act, 2010 (Sindh Act No.5 of 2010) to advance his arguments that such type of Public Project have to undergo the procedure mentioned in the above referred statute, which procedure has not been followed in the present case and on this ground also the impugned Public Notice should be declared as unlawful.

3. The above arguments have been vehemently controverted by Mr. Munir-ur-Rehman, learned counsel representing the Respondent-KW&SB, which has also filed its Counter-Affidavit in rebuttal to Petition. It has been contended by the Respondent that in terms of recently incorporated Rule 15-A in the SPPRA Rules, copy whereof has been placed on record, the procuring agency, which in the present case is Respondent-KW&SB, has advertised the proposal for open competition, after its approval by the Technical Committee. In terms of this Rule 15-A, the procuring agency / KW&SB even has the authority to award the contract to an initiator of the proposal, if the bidding process remains uncontested, besides extending the benefit of first right of refusal to the initiator of proposal, if the latter does not emerge as the lowest bidder.

4. With the Counter-Affidavit, copies of the subject Public Notices published in different Dailies (Newspapers) have also been appended in order to show that ample and fair opportunity was given to everyone for participating in the process.

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