ISLAMABAD: The Federal Constitutional Court has ruled that any conditions not mentioned in a tender advertisement cannot be forcibly imposed on a contractor after the bidding process has begun.
A three-member bench of the Federal Constitutional Court comprising Chief Justice Ameen-ud-Din Khan, Justice Ali Baqar Najafi and Justice Arshad Hussain Shah on Tuesday issued the judgment in a case concerning transparency in the public procurement process. The three-page verdict was authored by Justice Arshad Hussain Shah. The court dismissed an appeal filed by the Frontier Highway Authority against the Peshawar High Court’s decision and upheld the high court’s ruling.
The matter arose from a dispute between the Frontier Highway Authority and a private construction company. The authority had rejected the contractor’s bid and forfeited its bid security on the grounds that the contractor failed to submit an additional 8 per cent security. This additional amount had been demanded later on the basis that the bid was lower than the “engineer’s estimate”.
The court observed in its judgment that the original tender advertisement made no mention of an “engineer’s estimate”; rather, bidders were only informed of the estimated cost. The court held that in such circumstances, demanding additional security from the contractor based on an undisclosed estimate was legally incorrect.
Citing a judgment of the Supreme Court of India as precedent, the court remarked that changing the conditions after bidding has commenced is akin to “changing the rules after the game has started”, which amounts to arbitrary and unfair conduct. The court emphasized that in matters involving the transfer of public assets or awarding of contracts, it is essential to provide all bidders with equal information and ensure a transparent process.
“Any significant change in the conditions after the advertisement requires the issuance of a fresh advertisement,” said the judgment, adding that since the authority had not disclosed the basis for the additional security (the engineer’s estimate) in the advertisement, declaring the contractor ineligible and forfeiting its security was unlawful.
It is pertinent to mention here that the Peshawar High Court had accepted the petition filed by M/s BCB against the Frontier Highway Authority’s decision to declare it ineligible and forfeit its security for failing to deposit the additional eight per cent security. The high court had declared the authority’s action illegal, after which the authority filed an appeal before the Federal Constitutional Court, which has now been dismissed.
APP adds: The Federal Constitutional Court on Tuesday made it mandatory for all parties to submit a prescribed standard form with all petitions and appeals, failing which the filing would be deemed incomplete. In this regard, Additional Registrar (Judicial) Nazar Abbas has issued a formal circular which says the form must be duly signed by the advocate-on-record, an advocate of the Supreme Court, or by the petitioner appearing in person.
The form constitutes an integral part of court documents and will be utilised during the scrutiny, classification and bench formation process, with the aim of ensuring efficient and organised hearing of cases. The form could be downloaded from the court’s official website.
