C. P. NO. D-197 / 2015
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
M/S Interman Trading FZE -------------------------------------------- Petitioner
Versus
Sui Southern Gas Company &another -------------------------Respondents
Date of hearing: 6.2.2015
Date of order: 6.2.2015
Petitioner: Through Mrs. Haleema Khan Advocate.
Respondent Through M/s Asim Iqbal & Farmanullah Khan
No. 1. Advocates.
O R D E R
Muhammad Junaid Ghaffar, J. Through instant petition the petitioner has impugned order dated 22.9.2014,whereby, respondent No.1, in terms of Rule 19 of the Public Procurement Rules, 2004 (“Procurement Rules”) has black listed the petitioner from carrying out any further business with respondent No.1.
2. Precisely the facts as stated in the Memo of Petition are that the petitioner is a private indenting firm and claims to have vast experience in the field of energy, petroleum, oil, gas and engineering consultancy representing various foreign principals as their local agent in Pakistan. It has been stated that the petitioner had previously participated in several tenders issued by respondent No.1and had supplied various materials. It is further stated that a fresh tender bearing No. SSGC/FT/5214 was issued by respondent No.1 which was opened on 17.1.2014 for supply of “Diaphragm” used in gas meters from France or UK. It is claimed that the petitioner’s bid being lowest, was accepted in terms of Rule 35 of Procurement Rules. However, instead of receiving any purchase order, the petitioner received a letter dated 24.3.2014, whereby, the petitioner was informed that a complaint has been received by respondent No.1 that the petitioner has no lawful authorization from the manufacturer in France, on whose behalf the petitioner had participated in the tender. The said letter was replied by the petitioner on 18.4.2014, whereby, the respondent No.1 was requested to provide the details of the complainant however, the respondent No.1did not give any reply to the petitioner. On 29.4.2014 the petitioner addressed a complaint to Managing Director of respondent No.1 and again on 7.6.2014 a reminder to the General Manager M&IM. Again on 3.7.2014 another letter was addressed to respondent No.1 by inviting attention to the grievance of the petitioner. On 4.7.2014 the respondent No.1 informed the petitioner that in terms of Rule 48 of the Procurement Rules, there already exist a Procurement Grievance Committee in the office of respondent No.1 and further requested the petitioner to provide necessary authority letter from the Principal in France in respect of the present tender, as well as with regard to the earlier three tenders for which the purchase orders had already been issued. In response, the petitioner addressed two further letters dated 12.7.2014 and 5.8.2014 followed by a legal notice dated 30.8.2014 and in response to such letters, impugned order dated 22.9.2014 was issued, whereby the petitioners name has been black listed as referred to herein above.
3. Learned Counsel for the petitioner has contended that the impugned order of black listing is contrary to and in violation of Procurement Rules, as respondent No.1 has failed to follow the procedure as provided in law. Learned Counsel further contended that the bid of the petitioner was deemed to have been accepted under Rule 35 of the Procurement Rules, hence, the process cannot be over turned on a mere allegation by any of the competitors. Per learned Counsel the only recourse available to the complainant, after acceptance of the petitioner’s bid, was to approach the Grievance Committee, constituted under Rule 48 of the Procurement Rules, and, not with the Procurement Agency by making a false compliant against the petitioner. It has been further contended that the impugned order is also in violation of Rule 19 of Procurement Rules, whereas, the petitioner was not issued any show cause notice nor any inquiry was conducted, and the petitioner has been condemned unheard.
4. Conversely, the learned Counsel for respondent No.1 has contended that instant petition is not maintainable as respondent No.1 does not perform functions in connection with the affairs of the Federation, Province or a Local Authority and as such is not amenable to the jurisdiction of this Court in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Learned Counsel further contended that the petitioner has failed to avail the alternate remedy as provided under Rule 48 of the Procurement Rules, whereas, the respondent No.1 has a permanent Procurement Grievance Committee; hence the petitioner is not entitled to any relief from this Court. On merits of the case, learned Counsel contended that the petitioner had participated in the said tender without any lawful authority, as confirmed by the manufacturer to respondent No.1 vide email dated 18.2.2014 by EFFBE France, whereby, the manufacturer has stated that they have not appointed the petitioner as their agent in respect of the said tender, whereas, the letter of authority furnished by the petitioner was in respect of tender No. SSGC/FP/3870, which was issued somewhere in 2011. Per learned Counsel, the petitioner was confronted with this issue vide letter dated 24.3.2014, with specific reference to Rule 18 and 19 of the Procurement Rules, whereas, the petitioner had failed to give any satisfactory response to such letter, hence the name of the petitioner was blacklisted vide impugned order dated 22.9.2014, as the information submitted by the petitioner concerning his qualification as supplier was false and materially incorrect. It has been further contended that the petitioner had previously participated in three other tenders and had supplied Chinese origin material, instead of France, as per tender requirements, whereas, a complaint was also made by Transparency International in this regard against the Petitioner.
5. We have heard both the learned Counsel and perused the record. It appears that the petitioner, claims to be an Agent representing various Foreign Principals, and participates in tenders on their behalf. Insofar as the tenders invited by respondent No.1 are concerned, the petitioner had participated on behalf of M/s EFFBE-France. The petitioner had earlier participated in three tenders announced by respondent No.1 and had completed supply of the material in respect of the said tenders on 28.9.2011, 9.10.2012 and 20.6.2013. It further appears that the petitioner has also participated in a subsequent tender bearing No. SSGC/FP/5214 in which the bids were opened on 17.1.2014 in respect of supply of 200,000 pieces of Components for Remus G. 1.6 Gas meter Diaphragm of EFFBE/METFLAX Make, and during opening of such bids, it came to the notice of respondent No.1, that two separate bidders from UAE had quoted the same brand i.e. EFFBE France and while technical evaluation was under process, one of the participants through their local agent informed respondent No.1 that M/s EFFBE France has only authorized them to participate in the tender in question. Thereafter, the respondent No.1 approached M/s EFFBE France and sought confirmation regarding authorisation of the respective bidders for the tender in question, and vide e-mail dated 18.3.2014 M/ EFFBE France has confirmed to respondent No.1, that insofar as the tender in question is concerned, the petitioner was not authorized to participate on behalf of M/s EFFBE France. On receiving such information, respondent No.1 through an explanation letter dated 24.3.2014, asked the petitioner to clarify its position in the light of response received from M/s EFFBE France. Though, the petitioner was provided ample opportunity to respond and come up an explanation to justify its claim, however, it appears that the petitioner failed to submit any satisfactory reply with regard to such allegation and non-authorisation by M/s EFFBE France. Subsequently, the bid of the petitioner was rejected as being non-compliant, and was processed in favour of the next lowest bidder. It further appears that thereafter respondent No.1, in terms of clause 18 of Procurement Rules, initiated black listing / disqualification process against the petitioner, as under clause 18 of the Procurement Rules, the procuring agency is authorized to disqualify a supplier or a contractor if it finds at any time that the information submitted concerning his qualification as a supplier or a contractor was false and materially inaccurate and incomplete. It further appears that pursuant to such explanation and the response by the petitioner, the respondent No.1 has finally passed the impugned order dated 22.9.2014, whereby, in terms of Rule 18 and 19 of the Procurement Rules, the petitioner for having made false representation, has been black listed.
6. From perusal of the record and examination of the impugned order, it appears that prima facie the crux of the dispute between the parties is with regard to the authorization submitted by the petitioner on behalf of M/s EFFBE France, while participating in the tenders issued by respondent No.1, from time to time and in obtaining procurement orders from them. The controversy that as to whether, the authorization submitted earlier or thereafter, as claimed by the petitioner, was genuine or otherwise, is entirely dependent on the factual aspect of the matter, which can only be determined on the basis of evidence of the parties. It may be observed that this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot look and enter into such factual disputes, wherein, the contention of the petitioner has been seriously controverted by respondent No.1, on the basis of correspondence exchanged by them directly with the Principal of the petitioner. It appears that the petitioner was provided opportunity by respondent No.1, through its explanation letter dated 24.3.2014, before passing of the impugned black listing order, however, the petitioner could not produce any proper authorization letter in respect of the tender in question, before respondent No.1. On perusal of the correspondence exchanged between respondent No.1 and the Principal of the petitioner, placed on record through comments by respondent No.1 (in response to which no cross objection and or affidavit in rejoinder was filed), it appears that insofar as the present tender is concerned, there is serious dispute regarding authorisation of petitioner by M/s EFFBE France as petitioner was not in possession of any authorization letter in this regard. Therefore, the bid of the petitioner was perhaps liable to be rejected as being non-compliant according to the tender conditions, more specifically, stated in Section1-A of the additional Terms of Tender as provided in Clause 1.2.
7. In addition to this, it has been further alleged by respondent No.1, that the petitioner had obtained three purchase orders in respect of tender Nos. FP/3929, FP/4519 & FP/4834, on or after 19.05.2011, which according to the principal M/s EFFBE France was the last date, on which the authorisation of the petitioner was revoked. This apparently appears to be a cause for initiating the process of black listing the petitioner in terms of Rule 18 and 19 of the Procurement Rules. It has been further alleged by respondent No.1 that the petitioner while supplying material against Order No. SSGC 22/MMP/13127 dated 18.9.2012, had committed forgery in respect of Certificate of Origin, and had supplied Chinese Origin Goods, instead of France Origin Goods, whereas, the principal of the petitioner had also confirmed such forgery on the part of the petitioner while replying to respondent No.1 in this regard.
8. In view of hereinabove facts and circumstances of the instant case, we are of the view that the question raised in the instant petition by the petitioner, is primarily in respect of a dispute which requires factual enquiry, and this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot look into and adjudicate upon such factual disputes. Moreover, the Public Procurement Rules 2004 provides a complete mechanism / remedy to an aggrieved person for redressal of grievance, including approaching the Public Procurement Regulatory Authority established in terms of Section 3 of The Public Procurement Regulatory Authority Ordinance, 2002. We are of the view that remedy provided in law could not be allowed to be abandoned or by passed on mere whims and desire of an aggrieved party, nor Constitutional jurisdiction of this Court can be invoked in petty matters to burden Courts unnecessarily with disputed facts or examination of evidence so required for such resolution of controversy. Reliance in this regard may be placed on the cases of Khalid Mahmood Vs. Collector of Customs (1999 SCMR 1881), and MESSRS KSB Pumps Company Ltd. Vs. Government of Sindh and others (2011 MLD 1876) Accordingly, instant petition being misconceived in fact and law was dismissed by us vide short order dated 6.2.2015 and above are reasons for the short order. However, the petitioner, if so advised, may seek appropriate alternate remedy as provided under the law, and if the limitation period for seeking such remedy has expired during pendency of these proceedings and recording of reasons, the appropriate forum/authority may sympathetically consider, the request for condoning such period.
JUDGE
JUDGE