No case if EOI is not submitted on time

PLJ 2108 SC 208[Appellate Jurisdiction]

Present: Ejaz Afzal Khan, Dost Muhammad Khan & Ijaz-ul-Ahsan, JJ.

PREMIER BATTERY INDUSTRIES PRIVATE LIMITED--Petitioner

versus

KARACHI WATER & SEWERAGE BOARD, etc.--Respondents

C.P. No. 481-K of 2017, decided on 7.12.2017.

(Against order dated 12.8.2017 of High Court of Sindh at Karachi, passed in Constitution Petition No. 1802 of 2017).

Constitution of Pakistan, 1973--

----Art. 185(2) & (3)--Sindh Public Procurement Act, 2009--Sindh Public Procurement Rules 2010, Rr. 15-A & 17--Development of power projects--Unsolicited proposals--Public notice inviting expression of interest--Failure to participate--Locus Standi--Allegation of adequate time not granted--Petitioner had called in question public notice issued by respondent inviting expression of interest for development of power projects on ground that adequate time was not given in notice for submission of bids--High Court dismissed constitutional petition on ground that petitioner did not have any locus standi--Validity--Under Rule 15-A of Rules 2010, unsolicited proposals can be received for engineering procurement and construction projects involving cost of 1000 Million Rupees and above--Procuring agency may process such proposals through its technical committee to ascertain its viability--If proposal is found viable, procuring agency may advertise proposal for open competition in order to conduct a prequalification process--On completion of prequalification process, a contract may be awarded through competitive bidding--Petitioner neither fulfils technical nor financing criteria, meeting which is necessary for prequalification--Petitioner has no experience of power generation, transmission or investment in power projects--Petitioner did not submit EOI on or before closing date--It is not substantiated by anything on record in form of any correspondence or documentation indicating that steps had been taken by petitioner to form a consortium of this nature--Petitioner never approached respondent raising any objection regarding paucity of time or informing them that it was in process of setting up a joint venture with an eligible company--Petitioner waited for about a month after last date of submission of document to approach High Court--Petition dismissed.                   [P. 212 & 213] A, B & C

Constitution of Pakistan, 1973--

----Arts. 185 (2), (3) & 199--Sindh Public Procurement Act, 2009--Sindh Public Procurement Rules, 2010, R. 15-A--Development of power projects--Unsolicited proposals--Public notice inviting expression of interest--Failure to participate--Locus Standi--Public Interest Litigation--Personal Interests and Motivation--Question of Bonafide--Public interest Litigation does not strictly fall under any part of Article 199 of Constitution--It has received judicial recognition enabling Courts to enlarge scope of meaning of “aggrieved person” under Article 199 of Constitution to include a public spirited person who brings to notice of Court a matter of public importance requiring enforcement of fundamental rights--Constitutional jurisdiction of superior Courts is required to be exercised carefully, cautiously and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical or malicious attacks that block or suspend performance of executive functions by Government--Public interest litigation undertaken by a citizen must in first place transparently demonstrate its complete bona fides, that such litigation is not being undertaken to serve a private or vested interest and is demonstrably aimed at serving public interest, good or welfare--Petitioner has a personal interest in litigation--It is motivated purely by its own economic interest and thus it wants reversal of entire process so that it or somebody it represents, can avail another opportunity of joining process leading towards bidding of project after having missed deadline--Present litigation is therefore not public interest but rather personal interest litigation--Petition dismissed.      [Pp. 213 & 214] D, E & F

Mr. Haider Waheed, ASC for Petitioner.

Dr. Farogh Naseem, ASC for Respondent No. 1

Mr. Sibtain Mehmood, AAG Sindh for Respondent No. 2.

Date of hearing: 7.12.2017.

Judgment

Ijaz-ul-Ahsan, J.--The petitioner seeks leave to appeal against an order of the High Court of Sindh at Karachi dated 12.08.2017. Through the impugned order, a constitutional petition (C.P. No. D-1802 of 2017) filed by the petitioner was dismissed.

2.  The petitioner had called into question a public notice dated 08.02.2017 issued by Respondent No. 1-Karachi Water & Sewerage Board (KW&SB) inviting expression of interest (EOI) for development of a power project at KW&SB’s Dhabeji Pumping Station on built, operate and own basis (BOO). It was alleged that the public notice violated various provisions of the Sindh Public Procurement Act, 2009 (SPP Act, 2009) and the Sindh Public Procurement Rules, 2010 (Rules, 2010), adequate time was not given in the notice for submission of bids and the public notice published by Respondent No. 1 did not provide necessary details as contemplated by Rule 17 of the Rules, 2010.

3.  After hearing the learned counsel for the parties, the High Court came to the conclusion that in the first place, the notice in question was not intended to invite bids and was in fact an invitation for expression of interest from interested parties for a BOO project. It also found that the notice provided adequate details within the contemplation of Rule 17 of the Rules, 2010. However, the primary reason for dismissal of petitioner’s constitutional petition was that it did not have locus standi to challenge the notice in question.

4.  The learned counsel for the petitioner has vehemently argued that the requirements of the SPP Act, 2009 and the Rules, 2010 were not met in so far as sufficient time was not given to interested parties to submit their bids. He maintains that the notice did not provide sufficient details regarding the schedule of availability of bid documents, submission and opening of bids, mention of the place from where biding documents could be collected and later submitted. He has further emphasized the fact that the project involved public funds in huge amounts and it was imperative that the entire process was transparent, above board and beyond any hint of impropriety. He maintained that the petitioner had an interest in the matter insofar as it had a right to submit a bid which was denied to it. Further, and in the alternative, it may be treated as a law abiding entity laying information before the Court about illegalities committed by the State functionaries.

5.  The learned counsel for the Respondents on the other hand has supported the impugned order. He argued that the petitioner never responded to the notice widely publicized in newspapers and uploaded on the website of KW&SB and was therefore not entitled to challenge the process. He alleged that the constitution petition was filed mala fide, in order to obstruct, hinder and delay the process legitimately initiated by the KW&SB for the benefit of citizens of Karachi.

6.  We have heard the learned counsel for the parties at length and gone through the record with their assistance. We have also examined the impugned notice which was admittedly published on 08.02.2017 in various newspapers of wide circulation and had also been uploaded on the website of KW&SB. The notice not only gave details of the Project for which expression of interest had been invited but also gave insufficient details about the places from where EOI documents could be obtained. It was also clearly specified that only those parties which demonstrated experience of power plant projects (construction and management) were financially sound and had annual turnover of amounts in excess of Rupees 1000 million would be eligible. A prequalification process was to be conducted and only those who were prequalified would be entitled to receive RFP documents on the basis of which they would be able to participate in the bidding process for the project. The last date for submission of EOI was 27.02.2017 and it was clearly stated that documents received after the deadline shall not be entertained.

7.  From the above, it is clear and obvious to us that the EOI notice published on 08.02.2017 did not prima facie violate the requirements of SPP Act, 2009 and the Rules, 2010.

8.  We have also been informed that in terms of Rule 15-A of the Rules, 2010, unsolicited proposals can also be received for engineering procurement and construction projects involving cost of 1000 Million Rupees and above. The procuring agency may process such proposals through its technical committee to ascertain its viability. If the proposal is found viable the procuring agency may advertise the proposal for open competition in order to conduct a prequalification process. On completion of the pre-qualification process, a contract may be awarded through competitive bidding.

9.  In the present case, an unsolicited proposal appears to have been received. It was found viable by the technical committee. Thereafter, the impugned EOI was published for inviting potential investors to participate in a prequalification process. The proposed project does not entail procurement by KW&SB. It is proposed that a prequalified investor, who submits the lowest technically and financially compliant bid will set up a power project in the vicinity of the Dhabeji Pumping Station for generation of at least 45 MW of electricity all year round, 24 hours a day. This electricity would be utilized exclusively for the purposes of KW&SB. The responsibility for arranging financing, construction, management and operation of the Project shall lie with the investor. The only responsibility of KW&SB would be to provide land on lease and enter into a power purchase agreement to purchase the entire production of the plant at the rates to be determined by NEPRA (if required). We have also been informed that 11 parties had obtained EOI documents, paid the requisite fee and were eligible to undergo the process of prequalification.

10.  As far as the petitioner is concerned, we notice that it neither fulfils the technical nor the financing criteria, meeting which is necessary for prequalification. The learned counsel for the petitioner has candidly admitted that the petitioner has no experience of power generation, transmission or investment in power projects. He has also not denied that the petitioner does not meet the benchmark of average turnover of at least 1000 Million Rupees for the last two financial years. It is evident from the record that the petitioner did not submit EOI documents on or before 27.02.2017 which was the last date for submission of such documents. As a matter of fact, it is clear that the petitioner did not even apply for such documents, let alone submit the same after payment of necessary fee.

11.  We have also gone through the memorandum of association of the petitioner and find that power generation or investment in power generation projects is not one of the stated objects of the company. Further, the authorized capital of the Company is Rupees Five Million. It is not clear from the record what is the paid up capital of the company. No document has been placed on record that may give any indication about the paid up capital, actual business, financial resources or financial health of the Company. On our query, the learned counsel for the petitioner has conceded that turnover of the company is nowhere near the benchmark of Rupees 1000 Million, specified as a prerequisite in the EOI. The learned counsel for the petitioner has attempted to argue that the petitioner could have entered into a joint venture arrangement with some other company which met the eligibility criteria, if there was sufficient time. This argument has no force. It is not substantiated by anything on record in the form of any correspondence or documentation indicating that steps had been taken by the petitioner to form a consortium of this nature. Finally, we find that the petitioner all along had knowledge of publication of the notice on 08.02.2017 and the last date for submission of EOI documents. Yet it never approached the Respondents, raising any objection regarding paucity of time or informing them that it was in the process of setting up a joint venture with an eligible company. Surprisingly, the petitioner waited for about a month after the last date for submission of documents to approach the High Court in its constitutional jurisdiction.

12.  Coming to the alternative stand taken by learned counsel for the petitioner that the matter may be treated as ‘public interest litigation’. It is noted that on realizing that the petitioner was unlikely to succeed in view of his failure to participate in the process at any stage, the learned counsel tried to persuade us to examine the matter as one of public importance to undo the process, which according to him, had been undertaken in violation of SPP Act, 2009 and the Rules framed thereunder. It was urged that the entire process be repeated afresh. This necessitates an examination of the scope and parameters of public interest litigation. Such litigation does not strictly fall under any part of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, it has received judicial recognition enabling the Courts to enlarge the scope of the meaning of ‘aggrieved person’ under Article 199 of the Constitution to include a public spirited person who brings to the notice of the Court a matter of public importance requiring enforcement of Fundamental Rights. However, the constitutional jurisdiction of the superior Courts is required to be exercised carefully, cautiously and with circumspection to safeguard and promote public interest and not to entertain and promote speculative, hypothetical or malicious attacks that block or suspend the performance of executive functions by the Government.

13.  In the present case, at the centre of the controversy is a built, own and operate project for uninterrupted supply of electricity to various pumping stations operated by KW&SB. Work towards the operation of these pumping stations has direct nexus with the supply of water to citizens of Karachi which has not progressed since March, 2017, when this litigation was initiated. While the Court is not inclined without evidence to impute any motives to the petitioner, we must emphasize that public interest litigation undertaken by a citizen must in the first place transparently demonstrate its complete bona fides; that such litigation is not being undertaken to serve a private or vested interest and is demonstrably aimed at serving public interest, good or welfare. These attributes in a public interest initiative have already been dilated upon by this Court in Muhammad Shafique Khan Sawati v. Federation of Pakistan (2015 SCMR 851); ECHO West International (Pvt.) Ltd. v. Government of Punjab (PLD 2009 Supreme Court 406); Iqbal Haider v. Capital Development Authority (PLD 2006 Supreme Court 394); and Javed Ibrahim Paracha v. Federation of Pakistan (PLD 2004 Supreme Court 482).

14.     We are in no manner of doubt that the petitioner has a personal interest in the present litigation. It is motivated purely by its own economic interest and thus it wants reversal of the entire process so that it or somebody it represents, can avail another opportunity of joining the process leading towards bidding of the project after having missed the deadline. The present litigation is therefore not public interest but rather personal interest litigation. We are therefore not inclined to examine the case from the stand point of public interest litigation.

15.  We are also not convinced, either about the bona fides of the petitioner or its locus standi to file the constitutional petition before the High Court. Further, the learned counsel has not been able to convince us that in the facts and circumstances discussed above, the provisions of the SPP Act, 2009 or the Rules framed thereunder have been violated. We have also been assured by the learned counsel for the Respondents that the prequalification process would be transparently conducted, the RFP documents would be issued only to prequalified parties and the project would be awarded after a process of competitive bidding in a transparent manner and strictly in

compliance with the SPP Act, 2009 and the Rules, 2010. We are therefore not persuaded to interfere in the findings recorded by the High Court in its impugned order.

16.  Accordingly, this petition being devoid of merit is dismissed and leave to appeal is refused.

17.  Above are the reasons for our short order dated 07.12.2017, which for ease of reference, is reproduced below:--

“For the reasons to be recorded later, this petition being without merit, is dismissed and leave asked for is refused”

(Z.I.S.)            Petition dismissed